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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(Mark One)
☑
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2021
OR
☐
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _________ .
Commission File Number 1-6903
TRN-20210630_G1.JPG
(Exact name of registrant as specified in its charter)
Delaware 75-0225040
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
14221 N. Dallas Parkway, Suite 1100
Dallas, Texas 75254-2957
(Address of principal executive offices)
(Zip Code)
(214) 631-4420
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange
on which registered
Common Stock TRN New York Stock Exchange
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes þ  No ¨
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).  Yes þ   No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer þ Accelerated filer ¨ Non-accelerated filer ¨
Smaller reporting company ☐ Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐ No þ
At July 20, 2021, the number of shares of common stock, $0.01 par value, outstanding was 99,305,506.


TRINITY INDUSTRIES, INC.
FORM 10-Q
TABLE OF CONTENTS
 
Caption Page
3
34
56
56
57
57
57
57
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58
59



2
Table of Contents
PART I
Item 1. Financial Statements
Trinity Industries, Inc. and Subsidiaries
Consolidated Statements of Operations
(unaudited)
Three Months Ended
June 30, 		Six Months Ended
June 30,
  2021 2020 2021 2020
  (in millions, except per share amounts)
Revenues:
Manufacturing $ 186.5  $ 316.6  $ 402.0  $ 695.7 
Leasing 185.0  192.6  368.3  428.7 
371.5  509.2  770.3  1,124.4 
Operating costs:
Cost of revenues:
Manufacturing 156.7  293.7  356.0  637.1 
Leasing 102.5  102.9  199.2  241.5 
259.2  396.6  555.2  878.6 
Selling, engineering, and administrative expenses:
Manufacturing 17.4  19.6  37.8  41.5 
Leasing 13.2  13.0  24.5  27.3 
Other 27.1  24.2  49.8  52.3 
57.7  56.8  112.1  121.1 
Gains on dispositions of property:
Lease portfolio sales (Note 1) 11.1  5.7  12.8  14.4 
Other 1.0  0.9  10.8  1.8 
12.1  6.6  23.6  16.2 
Impairment of long-lived assets —  369.4  —  369.4 
Restructuring activities, net (0.7) 0.3  (1.0) 5.8 
Total operating profit (loss) 67.4  (307.3) 127.6  (234.3)
Other (income) expense:
Interest expense, net 51.0  53.0  102.3  106.9 
Loss on extinguishment of debt 11.7  —  11.7  5.0 
Other, net 0.8  (0.7) 2.0  (1.5)
63.5  52.3  116.0  110.4 
Income (loss) from continuing operations before income taxes 3.9  (359.6) 11.6  (344.7)
Provision (benefit) for income taxes:
Current 0.5  (79.7) 5.3  (452.5)
Deferred (1.4) 7.9  (0.2) 233.1 
(0.9) (71.8) 5.1  (219.4)
Income (loss) from continuing operations 4.8  (287.8) 6.5  (125.3)
Loss from discontinued operations, net of provision (benefit) for income taxes of $—, $—, $0.4, and $(0.1)
—  —  (0.4) (0.2)
Net income (loss) 4.8  (287.8) 6.1  (125.5)
Net loss attributable to noncontrolling interest (7.9) (80.9) (9.9) (80.3)
Net income (loss) attributable to Trinity Industries, Inc. $ 12.7  $ (206.9) $ 16.0  $ (45.2)
Basic earnings per common share:
Income (loss) from continuing operations $ 0.12  $ (1.76) $ 0.15  $ (0.38)
Income (loss) from discontinued operations —  —  —  — 
Basic net income (loss) attributable to Trinity Industries, Inc. $ 0.12  $ (1.76) $ 0.15  $ (0.38)
Diluted earnings per common share:
Income (loss) from continuing operations $ 0.12  $ (1.76) $ 0.15  $ (0.38)
Income (loss) from discontinued operations —  —  —  — 
Diluted net income (loss) attributable to Trinity Industries, Inc. $ 0.12  $ (1.76) $ 0.15  $ (0.38)
Weighted average number of shares outstanding:
Basic 102.8  117.3  106.4  117.6 
Diluted 105.1  117.3  108.9  117.6 
See accompanying notes to Consolidated Financial Statements.
3
Table of Contents
Trinity Industries, Inc. and Subsidiaries
Consolidated Statements of Comprehensive Income (Loss)
(unaudited)
Three Months Ended
June 30, 		Six Months Ended
June 30,
  2021 2020 2021 2020
  (in millions)
Net income (loss) $ 4.8  $ (287.8) $ 6.1  $ (125.5)
Other comprehensive income (loss):
Derivative financial instruments:
Unrealized gains (losses) arising during the period, net of tax benefit (expense) of $0.3, $0.5, $(1.7), and $8.2
(0.4) (1.7) 5.8  (27.3)
Reclassification adjustments for losses included in net income, net of tax benefit (expense) of $(0.6), $1.2, $0.3, and $1.7
2.0  4.9  1.1  5.9 
Defined benefit plans:
Amortization of prior service cost, net of tax benefit of $—, $0.1, $—, and $0.2
—  0.2  —  0.4 
Amortization of net actuarial losses, net of tax benefit of $0.1, $0.3, $0.1, and $0.6
—  1.2  0.1  2.4 
1.6  4.6  7.0  (18.6)
Comprehensive income (loss) 6.4  (283.2) 13.1  (144.1)
Less: comprehensive loss attributable to noncontrolling interest (7.5) (80.6) (9.2) (79.7)
Comprehensive income (loss) attributable to Trinity Industries, Inc. $ 13.9  $ (202.6) $ 22.3  $ (64.4)
See accompanying notes to Consolidated Financial Statements.
4
Table of Contents
Trinity Industries, Inc. and Subsidiaries
Consolidated Balance Sheets
June 30, 2021 December 31, 2020
(unaudited)
  (in millions)
ASSETS
Cash and cash equivalents $ 91.0  $ 132.0 
Receivables, net of allowance 218.3  199.0 
Income tax receivable 233.1  445.8 
Inventories:
Raw materials and supplies 186.2  176.4 
Work in process 78.2  52.2 
Finished goods 101.2  92.6 
365.6  321.2 
Restricted cash, including partially-owned subsidiaries of $42.6 and $31.1
164.7  96.4 
Property, plant, and equipment, at cost, including partially-owned subsidiaries of $1,938.5 and $1,931.6
9,337.1  9,193.0 
Less accumulated depreciation, including partially-owned subsidiaries of $549.5 and $525.7
(2,288.4) (2,189.6)
7,048.7  7,003.4 
Goodwill 215.7  208.8 
Other assets 279.9  295.2 
Total assets $ 8,617.0  $ 8,701.8 
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable $ 188.1  $ 156.4 
Accrued liabilities 275.9  314.7 
Debt:
Recourse 448.4  448.2 
Non-recourse:
Wholly-owned subsidiaries 3,607.3  3,340.5 
Partially-owned subsidiaries 1,232.5  1,228.3 
5,288.2  5,017.0 
Deferred income taxes 1,049.3  1,047.5 
Other liabilities 157.6  150.2 
Total liabilities 6,959.1  6,685.8 
Preferred stock – 1.5 shares authorized and unissued
—  — 
Common stock – 400.0 shares authorized
1.0  1.1 
Capital in excess of par value —  — 
Retained earnings 1,414.1  1,769.4 
Accumulated other comprehensive loss (24.6) (30.9)
Treasury stock (0.6) (0.8)
1,389.9  1,738.8 
Noncontrolling interest 268.0  277.2 
Total stockholders' equity 1,657.9  2,016.0 
Total liabilities and stockholders' equity $ 8,617.0  $ 8,701.8 
See accompanying notes to Consolidated Financial Statements.
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Table of Contents
Trinity Industries, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(unaudited)
Six Months Ended
June 30,
  2021 2020
  (in millions)
Operating activities:
Net income (loss) $ 6.1  $ (125.5)
Loss from discontinued operations, net of income taxes 0.4  0.2 
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
Depreciation and amortization 135.7  134.6 
Stock-based compensation expense 9.8  14.9 
Provision for deferred income taxes (0.2) 233.1 
Net gains on lease portfolio sales (12.8) (14.4)
Gains on dispositions of property and other assets (12.2) (5.3)
Impairment of long-lived assets —  369.4 
Non-cash impact of restructuring activities —  5.2 
Non-cash interest expense 6.6  4.5 
Loss on early extinguishment of debt 11.7  5.0 
Other 6.9  (5.4)
Changes in operating assets and liabilities:
(Increase) decrease in receivables (19.9) 33.1 
(Increase) decrease in income tax receivable 208.6  (448.3)
(Increase) decrease in inventories (47.5) 11.9 
(Increase) decrease in other assets 13.3  169.7 
Increase (decrease) in accounts payable 31.7  (15.7)
Increase (decrease) in accrued liabilities (4.0) (37.7)
Increase (decrease) in other liabilities 0.9  (1.5)
Net cash provided by operating activities – continuing operations 335.1  327.8 
Net cash used in operating activities – discontinued operations (0.4) (0.2)
Net cash provided by operating activities 334.7  327.6 
Investing activities:
Proceeds from dispositions of property and other assets 24.0  14.2 
Proceeds from lease portfolio sales 88.8  132.2 
Capital expenditures – leasing (net of sold lease fleet railcars owned one year or less with a net cost of $54.0 for the six months ended June 30, 2020)
(251.7) (259.5)
Capital expenditures – manufacturing and other (17.4) (41.5)
Acquisitions, net of cash acquired (16.6) — 
Other (0.1) — 
Net cash used in investing activities (173.0) (154.6)
Financing activities:
Payments to retire debt (1,925.2) (618.3)
Proceeds from issuance of debt 2,176.7  552.4 
Shares repurchased (329.4) (35.4)
Dividends paid to common shareholders (47.4) (46.4)
Purchase of shares to satisfy employee tax on vested stock (9.1) (9.0)
Net cash used in financing activities (134.4) (156.7)
Net increase in cash, cash equivalents, and restricted cash 27.3  16.3 
Cash, cash equivalents, and restricted cash at beginning of period 228.4  277.6 
Cash, cash equivalents, and restricted cash at end of period $ 255.7  $ 293.9 
See accompanying notes to Consolidated Financial Statements.
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Table of Contents
Trinity Industries, Inc. and Subsidiaries
Consolidated Statements of Stockholders' Equity
(unaudited)
Common
Stock 		Capital in
Excess of
Par Value 		Retained
Earnings 		Accumulated
Other
Comprehensive
Loss 		Treasury
Stock 		Trinity
Stockholders’
Equity 		Noncontrolling
Interest 		Total
Stockholders’
Equity
  Shares
$0.01 Par Value
Shares Amount
  (in millions, except par value and per common share amounts)
Balances at
   December 31, 2020
111.2  $ 1.1  $ —  $ 1,769.4  $ (30.9) (0.1) $ (0.8) $ 1,738.8  $ 277.2  $ 2,016.0 
Net income (loss) —  —  —  3.3  —  —  —  3.3  (2.0) 1.3 
Other comprehensive income —  —  —  —  5.1  —  —  5.1  0.3  5.4 
Cash dividends declared on common stock (1)
—  —  —  (23.3) —  —  —  (23.3) —  (23.3)
Stock-based compensation expense
—  —  5.4  —  —  —  —  5.4  —  5.4 
Shares repurchased —  —  —  —  —  (1.3) (36.8) (36.8) —  (36.8)
Settlement of share-based awards, net —  —  0.7  —  —  —  (0.8) (0.1) —  (0.1)
Balances at
   March 31, 2021
111.2  $ 1.1  $ 6.1  $ 1,749.4  $ (25.8) (1.4) $ (38.4) $ 1,692.4  $ 275.5  $ 1,967.9 
Net income (loss) —  —  —  12.7  —  —  —  12.7  (7.9) 4.8 
Other comprehensive income
—  —  —  —  1.2  —  —  1.2  0.4  1.6 
Cash dividends declared on common stock (1)
—  —  —  (21.0) —  —  —  (21.0) —  (21.0)
Stock-based compensation expense
—  —  4.4  —  —  —  —  4.4  —  4.4 
Shares repurchased —  —  —  —  —  (10.5) (290.8) (290.8) —  (290.8)
  Settlement of share-based awards, net 1.1  —  0.1  —  —  (0.3) (9.1) (9.0) —  (9.0)
Retirement of treasury stock
(12.2) (0.1) (10.6) (327.0) —  12.2  337.7  —  —  — 
Balances at
   June 30, 2021
100.1  $ 1.0  $ —  $ 1,414.1  $ (24.6) —  $ (0.6) $ 1,389.9  $ 268.0  $ 1,657.9 
(1) Dividends of $0.21 per common share for all periods presented in 2021.
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Table of Contents
Common
Stock 		Capital in
Excess of
Par Value 		Retained
Earnings 		Accumulated
Other
Comprehensive
Loss 		Treasury
Stock 		Trinity
Stockholders’
Equity 		Noncontrolling
Interest 		Total
Stockholders’
Equity
  Shares
$0.01 Par Value
Shares Amount
  (in millions, except par value and per common share amounts)
Balances at
   December 31, 2019
119.7  $ 1.2  $ —  $ 2,182.9  $ (153.1) (0.1) $ (0.9) $ 2,030.1  $ 348.8  $ 2,378.9 
Net income —  —  —  161.7  —  —  —  161.7  0.6  162.3 
Other comprehensive income (loss) —  —  —  —  (23.5) —  —  (23.5) 0.3  (23.2)
Cash dividends declared on common stock (1)
—  —  —  (24.6) —  —  —  (24.6) —  (24.6)
Stock-based compensation expense
—  —  7.3  —  —  —  —  7.3  —  7.3 
Shares repurchased —  —  —  —  —  (1.9) (35.4) (35.4) —  (35.4)
Settlement of share-based awards, net —  —  0.7  —  —  —  (0.9) (0.2) —  (0.2)
Cumulative effect of adopting new accounting standard
—  —  —  0.5  —  —  —  0.5  —  0.5 
Other
—  —  —  0.5  —  —  —  0.5  —  0.5 
Balances at
   March 31, 2020
119.7  $ 1.2  $ 8.0  $ 2,321.0  $ (176.6) (2.0) $ (37.2) $ 2,116.4  $ 349.7  $ 2,466.1 
Net income (loss) —  —  —  (206.9) —  —  —  (206.9) (80.9) (287.8)
Other comprehensive income —  —  —  —  4.3  —  —  4.3  0.3  4.6 
Cash dividends declared on common stock (1)
—  —  —  (20.6) —  —  —  (20.6) —  (20.6)
Stock-based compensation expense
—  —  7.6  —  —  —  —  7.6  —  7.6 
Retirement of treasury stock
(2.5) —  (17.5) (30.2) —  2.5  47.7  —  —  — 
 Settlement of share-based awards, net 1.5  —  1.9  —  —  (0.6) (11.4) (9.5) —  (9.5)
Balances at
   June 30, 2020
118.7  $ 1.2  $ —  $ 2,063.3  $ (172.3) (0.1) $ (0.9) $ 1,891.3  $ 269.1  $ 2,160.4 
(1) Dividends of $0.19 per common share for all periods presented in 2020.

See accompanying notes to Consolidated Financial Statements.
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Table of Contents
Trinity Industries, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Unaudited)
Note 1. Summary of Significant Accounting Policies
Basis of Presentation
The foregoing Consolidated Financial Statements are unaudited and have been prepared from the books and records of Trinity Industries, Inc. and its consolidated subsidiaries (“Trinity,” “Company,” “we,” “our,” or "us") including the accounts of our wholly-owned subsidiaries and partially-owned subsidiaries, TRIP Rail Holdings LLC (“TRIP Holdings”) and RIV 2013 Rail Holdings LLC ("RIV 2013"), in which we have a controlling interest. In our opinion, all normal and recurring adjustments necessary for a fair presentation of our financial position as of June 30, 2021, and the results of operations for the three and six months ended June 30, 2021 and 2020, and cash flows for the six months ended June 30, 2021 and 2020, have been made in conformity with generally accepted accounting principles. All significant intercompany accounts and transactions have been eliminated. Certain prior year balances have been reclassified to conform to the 2021 presentation.
Due to seasonal and other factors, including the impacts of the coronavirus pandemic (“COVID-19”) and the related governmental response, the results of operations for the six months ended June 30, 2021 may not be indicative of expected results of operations for the year ending December 31, 2021. These interim financial statements and notes are condensed as permitted by the instructions to Form 10-Q and should be read in conjunction with our audited Consolidated Financial Statements included in our Form 10-K for the year ended December 31, 2020.
Revenue Recognition
Revenue is measured based on the allocation of the transaction price in a contract to satisfied performance obligations. The transaction price does not include any amounts collected on behalf of third parties. We recognize revenue when we satisfy a performance obligation by transferring control over a product or service to a customer. Payments for our products and services are generally due within normal commercial terms. The following is a description of principal activities from which we generate our revenue, separated by reportable segments. See Note 3 for a further discussion regarding our reportable segments.
Railcar Leasing and Management Services Group
In our Railcar Leasing and Management Services Group ("Leasing Group"), revenue from rentals and operating leases, including contracts that contain non-level fixed lease payments, is recognized monthly on a straight-line basis. Leases not classified as operating leases are generally considered sales-type leases as a result of an option to purchase.
We review our operating lease receivables for collectibility on a regular basis, taking into consideration changes in factors such as the lessee’s payment history, the financial condition of the lessee, and business and economic conditions in the industry in which the lessee operates. In the event that the collectibility of a receivable with respect to any lessee is no longer probable, we derecognize the revenue and related receivable and recognize future revenue only when the lessee makes a rental payment. Contingent rents are recognized when the contingency is resolved.
Selling profit or loss associated with sales-type leases is recognized upon lease commencement, and a net investment in the sales-type lease is recorded on the Consolidated Balance Sheet. Interest income related to sales-type leases is recognized over the lease term using the effective interest method. We had no sales-type leases as of June 30, 2021 and December 31, 2020.
9
During the fourth quarter of 2020, we began presenting sales from our lease fleet in the Railcar Leasing and Management Services Group on a net basis regardless of the age of railcar that is sold. Historically, in accordance with ASC 606, Revenue from contracts with customers, we presented sales of railcars from the lease fleet on a gross basis in Revenues – Leasing and Cost of revenues – Leasing in our Consolidated Statements of Operations if the railcars had been owned for one year or less at the time of sale. Sales of railcars from the lease fleet owned for more than one year had historically been presented as a net gain or loss from the disposal of a long-term asset. We now report all sales of railcars from the lease fleet as a net gain or loss from the disposal of a long-term asset in accordance with ASC 610-20, Gains and losses from the derecognition of non-financial assets. These sales are presented in the Lease portfolio sales line in our Consolidated Statements of Operations; however, because this change in presentation was effected on a prospective basis beginning in the fourth quarter of 2020, lease portfolio sales for the three and six months ended June 30, 2020 only include sales of railcars from the lease fleet owned for more than one year. We have concluded that the new presentation is appropriate given the significant change in the strategic focus of the Company. The new presentation had no effect on the Company’s operating profit, net income, earnings per share, or Consolidated Balance Sheet.
We account for shipping and handling costs as activities to fulfill the promise to transfer the good; as such, these fees are recorded in revenue. The fees and costs of shipping and handling activities are accrued when the related performance obligation has been satisfied.
Rail Products Group
Our railcar manufacturing business recognizes revenue when the customer has submitted its certificate of acceptance and legal title of the railcar has passed to the customer. Certain contracts for the sales of railcars include price adjustments based on steel-price indices; this amount represents variable consideration for which we are unable to estimate the final consideration until the railcar is delivered.
Within our maintenance services business, revenue is recognized over time as repair and maintenance projects are completed, using an input approach based on the costs incurred relative to the total estimated costs of performing the project. We recorded contract assets of $5.4 million and $4.4 million as of June 30, 2021 and December 31, 2020, respectively, related to unbilled revenues recognized on repair and maintenance services that have been performed, but for which the entire project has not yet been completed, and the railcar has not yet been shipped to the customer. These contract assets are included within the Receivables, net of allowance line in our Consolidated Balance Sheets.
All Other
Our highway products business recognizes revenue when shipment has occurred and legal title of the product has passed to the customer.
Unsatisfied Performance Obligations
The following table includes estimated revenue expected to be recognized in future periods related to performance obligations that are unsatisfied or partially satisfied as of June 30, 2021 and the percentage of the outstanding performance obligations as of June 30, 2021 expected to be delivered during the remainder of 2021:
Unsatisfied performance obligations at June 30, 2021
Total
Amount
Percent expected to be delivered in 2021
  (in millions)
Rail Products Group:
Rail products:
External customers $ 891.3 
Leasing Group 286.4 
$ 1,177.7  48.8  %
Maintenance services $ 7.8  100.0  %
Railcar Leasing and Management Services Group $ 73.0  13.0  %
The remainder of the unsatisfied performance obligations for the Rail Products Group is expected to be delivered through 2024. Unsatisfied performance obligations for the Railcar Leasing and Management Services Group are related to servicing, maintenance, and management agreements and are expected to be performed through 2029.
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Lease Accounting
Lessee
We are the lessee of operating leases predominantly for railcars, as well as office buildings, manufacturing equipment, and office equipment. Our operating leases have remaining lease terms ranging from one year to sixteen years, some of which include options to extend for up to five years, and some of which include options to terminate within one year. As of June 30, 2021, we had no material finance leases in which we were the lessee. Certain of our operating leases include lease incentives, which reduce the right-of-use asset and are recognized on a straight-line basis over the lease term. As applicable, the lease liability is also reduced by the amount of lease incentives that have not yet been reimbursed by the lessor.
The following table summarizes the impact of our operating leases on our Consolidated Financial Statements (in millions, except lease term and discount rate):
Three Months Ended
June 30, 		Six Months Ended
June 30,
2021 2020 2021 2020
Consolidated Statements of Operations
Operating lease expense $ 4.2  $ 4.6  $ 7.9  $ 8.5 
Short-term lease expense $ 0.2  $ 1.2  $ 0.2  $ 1.4 
June 30, 2021 December 31, 2020
Consolidated Balance Sheets
Right-of-use assets (1)
$ 92.3  $ 77.1 
Lease liabilities (2)
$ 115.9  $ 96.9 
Weighted average remaining lease term 10.6 years 11.3 years
Weighted average discount rate 3.0  % 3.3  %
Six Months Ended
June 30,
2021 2020
Consolidated Statements of Cash Flows
Cash flows from operating activities $ 7.9  $ 8.5 
Right-of-use assets recognized in exchange for new lease liabilities (3)
$ 22.5  $ 50.7 
(1) Included in other assets in our Consolidated Balance Sheet.
(2) Included in other liabilities in our Consolidated Balance Sheet.
(3) Includes the commencement of the new headquarters facility for the six months ended June 30, 2020.
Future contractual minimum operating lease liabilities will mature as follows (in millions):
Leasing Group Non-Leasing Group Total
Remaining six months of 2021 $ 5.6  $ 2.2  $ 7.8 
2022 10.4  8.2  18.6 
2023 8.6  8.1  16.7 
2024 5.3  6.9  12.2 
2025 3.5  6.2  9.7 
Thereafter 6.5  64.8  71.3 
Total operating lease payments $ 39.9  $ 96.4  $ 136.3 
Less: Present value adjustment (20.4)
Total operating lease liabilities $ 115.9 

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Lessor
Our Leasing Group enters into railcar operating leases with third parties with terms generally ranging between one year and ten years. The majority of our fleet operates on leases that earn fixed monthly lease payments. Generally, lease payments are due at the beginning of the applicable month. A portion of our fleet operates on per diem leases that earn usage-based variable lease payments. Some of our leases include options to extend the leases for up to five years, and a small percentage of our leases include options to terminate within one year with certain notice requirements and early termination penalties. As of June 30, 2021, non-Leasing Group operating leases were not significant, and we had no sales-type leases and no direct finance leases.
We manage risks associated with residual values of leased railcars by investing across a diverse portfolio of railcar types, staggering lease maturities within any given railcar type, avoiding concentration of railcar type and industry, and are active participants in secondary markets. Additionally, our lease agreements contain normal wear and tear return condition provisions and high mileage thresholds designed to protect the value of our residual assets. Our lease agreements do not contain any material residual value guarantees or restrictive covenants.
The following table summarizes the impact of our leases on our Consolidated Statements of Operations:
Three Months Ended
June 30, 		Six Months Ended
June 30,
2021 2020 2021 2020
(in millions)
Operating lease revenues $ 165.0  $ 165.1  $ 328.0  $ 337.3 
Variable operating lease revenues $ 12.5  $ 10.6  $ 25.9  $ 23.2 

Future contractual minimum revenues for operating leases will mature as follows (in millions)(1):
Remaining six months of 2021 $ 288.0 
2022 478.9 
2023 358.9 
2024 268.2 
2025 187.1 
Thereafter 347.1 
Total $ 1,928.2 
(1) Total contractual minimum rental revenues on operating leases relates to our wholly-owned and partially-owned subsidiaries and sub-lease rental revenues associated with the Leasing Group's operating lease obligations.
Financial Instruments
We consider all highly liquid debt instruments to be either cash and cash equivalents if purchased with a maturity of three months or less, or short-term marketable securities if purchased with a maturity of more than three months and less than one year.
Financial instruments that potentially subject us to a concentration of credit risk are primarily cash investments including restricted cash and receivables. We place our cash investments in bank deposits and investment grade, short-term debt instruments and limit the amount of credit exposure to any one commercial issuer. The carrying values of cash, receivables, and accounts payable are considered to be representative of their respective fair values.
Concentrations of credit risk with respect to receivables are limited due to control procedures that monitor the credit worthiness of customers, the large number of customers in our customer base, and their dispersion across different end markets and geographic areas. Receivables are generally evaluated at a portfolio level based on these characteristics. As receivables are generally unsecured, we maintain an allowance for credit losses using a forward-looking approach based on historical losses and consideration of current and expected future economic conditions. Historically, we have observed that the likelihood of loss increases when receivables have aged beyond 180 days. When a receivable is deemed uncollectible, the write-off is recorded as a reduction to allowance for credit losses. The balance for allowance for credit losses that are in the scope of ASC 326, Financial Instruments - Credit Losses was $10.8 million and $9.3 million at June 30, 2021 and December 31, 2020, respectively. This balance excludes the general reserve for operating lease receivables that is permitted under ASC 450, Contingencies.
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Acquisitions
In January 2021, we completed the acquisition of a company that owns and operates proprietary railcar cleaning technology systems. This transaction was recorded as a business combination within the Rail Products Group, based on preliminary valuations of the acquired assets and liabilities at their acquisition date fair value using Level 3 inputs. The acquisition did not have a significant impact on our Consolidated Financial Statements. This transaction resulted in goodwill of $6.9 million. There was no acquisition activity for the three and six months ended June 30, 2020.
Goodwill
As of June 30, 2021 and December 31, 2020, the carrying amount of our goodwill totaled $215.7 million and $208.8 million, respectively, which is primarily attributable to the Rail Products Group.
Warranties
We provide various express, limited product warranties that generally range from one year to five years depending on the product. The warranty costs are estimated using a two-step approach. First, an engineering estimate is made for the cost of all claims that have been asserted by customers. Second, based on historical claims experience, a cost is accrued for all products still within a warranty period for which no claims have been filed. We provide for the estimated cost of product warranties at the time revenue is recognized related to products covered by warranties and assess the adequacy of the resulting reserves on a quarterly basis. The changes in the accruals for warranties for the three and six months ended June 30, 2021 and 2020 are as follows:
  Three Months Ended
June 30, 		Six Months Ended
June 30,
2021 2020 2021 2020
  (in millions)
Beginning balance $ 7.4  $ 7.7  $ 11.7  $ 8.1 
Warranty costs incurred (2.5) (0.6) (3.0) (1.5)
Warranty originations and revisions 1.2  2.4  (2.4) 3.0 
Warranty expirations (0.3) —  (0.5) (0.1)
Ending balance $ 5.8  $ 9.5  $ 5.8  $ 9.5 
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Note 2. Derivative Instruments and Fair Value Accounting
Derivative Instruments
We use derivative instruments to mitigate the impact of changes in interest rates, both in anticipation of future debt issuances and to offset interest rate variability of certain floating rate debt issuances outstanding. We also may use derivative instruments to mitigate the impact of changes in natural gas and diesel fuel prices and changes in foreign currency exchange rates. Derivative instruments that are designated and qualify as cash flow hedges are accounted for by recording the effective portion of the gain or loss on the derivative instrument in accumulated other comprehensive loss ("AOCL") as a separate component of stockholders' equity and reclassified into earnings in the period during which the hedged transaction affects earnings. We continuously monitor our derivative positions and the credit ratings of our counterparties and do not anticipate losses due to non-performance. See Note 7 for a description of our debt instruments.
Interest Rate Hedges
     
Included in accompanying balance sheet
at June 30, 2021
AOCL – loss/(income)
  Notional Amount
Interest Rate (1)
Asset/(Liability)  Controlling Interest Noncontrolling Interest
  (in millions, except %)
Expired hedges:
2018 secured railcar equipment notes $ 249.3  4.41  % $ —  $ 0.7  $ — 
TRIP Holdings warehouse loan $ 788.5  3.60  % $ —  $ 0.9  $ 1.2 
Triumph Rail secured railcar equipment notes $ 34.8  2.62  % $ —  $ —  $ — 
2017 promissory notes – interest rate cap $ 169.3  3.00  % $ —  $ (0.4) $ — 
Open hedge:
2017 promissory notes – interest rate swap $ 474.7  2.66  % $ (32.4) $ 31.9  $ — 
(1) Weighted average fixed interest rate, except for the interest rate cap on the 2017 promissory notes.

  Effect on interest expense-increase/(decrease)
  Three Months Ended
June 30, 		Six Months Ended
June 30, 		Expected effect during next twelve months
  2021 2020 2021 2020
  (in millions)
Expired hedges:
2006 secured railcar equipment notes $ —  $ —  $ —  $ (0.1) $ — 
2018 secured railcar equipment notes
$ —  $ —  $ 0.1  $ 0.1  $ 0.2 
TRIP Holdings warehouse loan $ 0.5  $ 0.5  $ 1.0  $ 1.0  $ 1.5 
Triumph Rail secured railcar equipment notes $ 0.1  $ —  $ 0.1  $ 0.1  $ — 
2017 promissory notes – interest rate cap $ —  $ —  $ —  $ —  $ (0.1)
Open hedge (1):
2017 promissory notes – interest rate swap $ 3.1  $ 3.0  $ 6.2  $ 4.7  $ 12.4 
(1) Based on the fair value of open hedges as of June 30, 2021.
14

Other Derivatives
Our exposure related to foreign currency transactions is currently hedged for up to a maximum of twelve months. The effect of commodity hedge transactions was immaterial to the Consolidated Financial Statements for all periods presented herein. Information related to our foreign currency hedge is as follows:
 
Included in 
accompanying balance sheet at June 30, 2021
Effect on cost of revenues – increase/(decrease)
Notional
Amount 		Asset/(Liability) AOCL –
loss/(income) 		Three Months Ended
June 30, 		Six Months Ended
June 30,
Expected effect during next twelve months (1)
2021 2020 2021 2020
(in millions)
$ 50.0  $ 1.1  $ (2.2) $ (2.3) $ 2.6  $ (6.0) $ 1.8  $ (2.2)
(1) Based on the fair value of open hedges as of June 30, 2021.
Fair Value Measurements
Fair value is defined as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for that asset or liability in an orderly transaction between market participants on the measurement date. An entity is required to establish a fair value hierarchy that maximizes the use of observable inputs and minimizes the use of unobservable inputs when measuring fair value. The three levels of inputs that may be used to measure fair value are listed below.
Level 1 – This level is defined as quoted prices in active markets for identical assets or liabilities. Our cash equivalents and restricted cash are instruments of the U.S. Treasury or highly-rated money market mutual funds. The assets measured as Level 1 in the fair value hierarchy are summarized below:
Level 1
  June 30, 2021 December 31, 2020
(in millions)
Assets:
Cash equivalents $ 12.3  $ 24.2 
Restricted cash 164.7  96.4 
Total assets $ 177.0  $ 120.6 
Level 2 – This level is defined as observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities. Interest rate hedges are valued at exit prices obtained from each counterparty. Foreign currency hedges are valued at exit prices obtained from each counterparty, which are based on currency spot and forward rates and forward points. The assets and liabilities measured as Level 2 in the fair value hierarchy are summarized below:
Level 2
  June 30, 2021 December 31, 2020
(in millions)
Assets:
Foreign currency hedge (1)
$ 1.1  $ 4.8 
Total assets $ 1.1  $ 4.8 
Liabilities:
Interest rate hedge (2)
$ 32.4  $ 45.2 
Total liabilities $ 32.4  $ 45.2 
(1) Included in other assets in our Consolidated Balance Sheets.
(2) Included in accrued liabilities in our Consolidated Balance Sheets.

15
Level 3 – This level is defined as unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities. As of June 30, 2021 and December 31, 2020, we have no assets measured as Level 3 in the fair value hierarchy.
See Note 10 for information regarding the non-recurring fair value measurement considerations during the three and six months ended June 30, 2020 for the impairment charge related to our small cube covered hopper railcars. See Note 7 for the estimated fair values of our debt instruments. The fair values of all other financial instruments are estimated to approximate carrying value.
Note 3. Segment Information
We report our operating results in three principal business segments: (1) the Railcar Leasing and Management Services Group, which owns and operates a fleet of railcars and provides third-party fleet leasing, management, and administrative services; (2) the Rail Products Group, which manufactures and sells railcars and related parts and components, and provides railcar maintenance and modification services; and (3) All Other, which includes our highway products business and legal, environmental, and maintenance costs associated with non-operating facilities.
Gains and losses from the sale of property, plant, and equipment are included in the operating profit of each respective segment. Our Chief Operating Decision Maker ("CODM") regularly reviews the operating results of our reportable segments in order to assess performance and allocate resources. Our CODM does not consider impairment of long-lived assets or restructuring activities when evaluating segment operating results; therefore, impairment of long-lived assets and restructuring activities are not allocated to segment profit or loss.
Sales and related net profits ("deferred profit") from the Rail Products Group to the Leasing Group are recorded in the Rail Products Group and eliminated in consolidation and are reflected in "Eliminations – Lease Subsidiary" in the tables below. Sales between these groups are recorded at prices comparable to those charged to external customers, taking into consideration quantity, features, and production demand. Amortization of deferred profit on railcars sold to the Leasing Group is included in the operating profit of the Leasing Group, resulting in the recognition of depreciation expense based on our original manufacturing cost of the railcars. Lease portfolio sales are included in the Leasing Group, with related gains and losses computed based on the net book value of the original manufacturing cost of the railcars.
The financial information for these segments is shown in the tables below (in millions). We operate principally in North America.
Three Months Ended June 30, 2021
Railcar Leasing and Management Services Group Rail Products Group All Other Eliminations – Lease Subsidiary Eliminations – Other Consolidated Total
External Revenue $ 185.0  $ 108.3  $ 78.2  $ —  $ —  $ 371.5 
Intersegment Revenue 0.1  153.5  —  (151.0) (2.6) — 
Total Revenues $ 185.1  $ 261.8  $ 78.2  $ (151.0) $ (2.6) $ 371.5 

Three Months Ended June 30, 2020
Railcar Leasing and Management Services Group Rail Products Group All Other Eliminations – Lease Subsidiary Eliminations – Other Consolidated Total
External Revenue $ 192.6  $ 247.3  $ 69.3  $ —  $ —  $ 509.2 
Intersegment Revenue 0.2  158.3  —  (156.0) (2.5) — 
Total Revenues $ 192.8  $ 405.6  $ 69.3  $ (156.0) $ (2.5) $ 509.2 

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Six Months Ended June 30, 2021
Railcar Leasing and Management Services Group Rail Products Group All Other Eliminations – Lease Subsidiary Eliminations – Other Consolidated Total
External Revenue $ 368.3  $ 255.7  $ 146.3  $ —  $ —  $ 770.3 
Intersegment Revenue 0.3  267.1  —  (262.3) (5.1) — 
Total Revenues $ 368.6  $ 522.8  $ 146.3  $ (262.3) $ (5.1) $ 770.3 

Six Months Ended June 30, 2020
Railcar Leasing and Management Services Group Rail Products Group All Other Eliminations – Lease Subsidiary Eliminations – Other Consolidated Total
External Revenue $ 428.7  $ 564.5  $ 131.2  $ —  $ —  $ 1,124.4 
Intersegment Revenue 0.4  350.5  1.5  (346.4) (6.0) — 
Total Revenues $ 429.1  $ 915.0  $ 132.7  $ (346.4) $ (6.0) $ 1,124.4 

The reconciliation of segment operating profit (loss) to consolidated net income (loss) is as follows:
  Three Months Ended
June 30, 		Six Months Ended June 30,
  2021 2020 2021 2020
  (in millions)
Operating profit (loss):
Railcar Leasing and Management Services Group $ 81.1  $ 82.9  $ 159.4  $ 175.8 
Rail Products Group 3.2  7.9  (5.6) 33.0 
All Other 12.8  7.3  28.1  16.6 
Segment Totals before Eliminations, Corporate Expenses, Impairment of long-lived assets, and Restructuring activities 97.1  98.1  181.9  225.4 
Corporate (27.1) (24.2) (49.8) (52.3)
Impairment of long-lived assets —  (369.4) —  (369.4)
Restructuring activities, net 0.7  (0.3) 1.0  (5.8)
Eliminations – Lease Subsidiary (3.0) (11.0) (4.8) (30.9)
Eliminations – Other (0.3) (0.5) (0.7) (1.3)
Consolidated operating profit (loss) 67.4  (307.3) 127.6  (234.3)
Other (income) expense 63.5  52.3  116.0  110.4 
Provision (benefit) for income taxes (0.9) (71.8) 5.1  (219.4)
Loss from discontinued operations, net of income taxes —  —  (0.4) (0.2)
Net income (loss) $ 4.8  $ (287.8) $ 6.1  $ (125.5)
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Note 4. Partially-Owned Leasing Subsidiaries
Through our wholly-owned subsidiary, Trinity Industries Leasing Company ("TILC"), we formed two subsidiaries, TRIP Holdings and RIV 2013, for the purpose of providing railcar leasing services in North America for institutional investors. Each of TRIP Holdings and RIV 2013 are direct, partially-owned subsidiaries of TILC in which we have a controlling interest. Each is governed by a seven-member board of representatives, two of whom are designated by TILC. TILC is the agent of each of TRIP Holdings and RIV 2013 and, as such, has been delegated the authority, power, and discretion to take certain actions on behalf of the respective companies.
At June 30, 2021, the carrying value of our investment in TRIP Holdings and RIV 2013 totaled $140.3 million. Our weighted average ownership interest in TRIP Holdings and RIV 2013 is 38% while the remaining 62% weighted average interest is owned by third-party, investor-owned funds. The investment in our partially-owned leasing subsidiaries is eliminated in consolidation.
Each of TRIP Holdings and RIV 2013 has wholly-owned subsidiaries that are the owners of railcars acquired from our Rail Products and Leasing Groups. TRIP Holdings has wholly-owned subsidiaries known as Triumph Rail LLC ("Triumph Rail"), formerly known as TRIP Master Funding LLC ("TRIP Master Funding”), and TRIP Railcar Co. LLC ("TRIP Railcar Co."). RIV 2013 has a wholly owned-subsidiary known as TRP 2021 LLC ("TRP-2021"), formerly known as Trinity Rail Leasing 2012 LLC (“TRL-2012”). TILC is the contractual servicer for Triumph Rail, TRIP Railcar Co., and TRP-2021, with the authority to manage and service each entity's owned railcars. Our controlling interest in each of TRIP Holdings and RIV 2013 results from our combined role as both equity member and agent/servicer. The noncontrolling interest included in the accompanying Consolidated Balance Sheets represents the non-Trinity equity interest in these partially-owned subsidiaries.
Trinity has no obligation to guarantee performance under any of our partially-owned subsidiaries' (or their respective subsidiaries') debt agreements, guarantee any railcar residual values, shield any parties from losses or guarantee minimum yields.
The assets of each of Triumph Rail, TRIP Railcar Co., and TRP-2021 may only be used to satisfy the particular subsidiary's liabilities, and the creditors of each of Triumph Rail, TRIP Railcar Co., and TRP-2021 have recourse only to the particular subsidiary's assets. Each of TILC and the third-party equity investors receive distributions from TRIP Holdings and RIV 2013, when available, in proportion to its respective equity interests, and has an interest in the net assets of the partially-owned subsidiaries upon a liquidation event in the same proportion. TILC is paid fees for the services it provides to Triumph Rail, TRIP Railcar Co., and TRP-2021 and has the potential to earn certain incentive fees. There are no remaining equity commitments with respect to TRIP Holdings or RIV 2013.
See Note 7 regarding TRIP Holdings and RIV 2013, including the redemption and refinancing of the debt of their respective subsidiaries.
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Note 5. Railcar Leasing and Management Services Group
The Railcar Leasing and Management Services Group owns and operates a fleet of railcars as well as provides third-party fleet leasing, management, and administrative services. Selected consolidated financial information for the Leasing Group is as follows:
June 30, 2021
Wholly-
Owned
Subsidiaries 		Partially-Owned Subsidiaries Total Leasing Group
Eliminations — Lease Subsidiary(1)
Adjusted Total Leasing Group
(in millions)
Cash and cash equivalents $ 4.7  $ —  $ 4.7  $ —  $ 4.7 
Accounts receivable 95.3  9.7  105.0  —  105.0 
Property, plant, and equipment, net 5,853.7  1,605.6  7,459.3  (804.3) 6,655.0 
Restricted cash 122.1  42.6  164.7  —  164.7 
Other assets 53.4  1.4  54.8  —  54.8 
Total assets $ 6,129.2  $ 1,659.3  $ 7,788.5  $ (804.3) $ 6,984.2 
Accounts payable and accrued liabilities $ 114.4  $ 32.5  $ 146.9  $ —  $ 146.9 
Debt, net 3,607.3  1,232.5  4,839.8  —  4,839.8 
Deferred income taxes 1,068.1  1.1  1,069.2  (186.5) 882.7 
Other liabilities 37.9  —  37.9  —  37.9 
Total liabilities 4,827.7  1,266.1  6,093.8  (186.5) 5,907.3 
Noncontrolling interest —  268.0  268.0  —  268.0 
Total Equity $ 1,301.5  $ 125.2  $ 1,426.7  $ (617.8) $ 808.9 
December 31, 2020
Wholly-
Owned
Subsidiaries 		Partially-Owned Subsidiaries Total Leasing Group
Eliminations — Lease Subsidiary(1)
Adjusted Total Leasing Group
(in millions)
Cash and cash equivalents $ 3.5  $ —  $ 3.5  $ —  $ 3.5 
Accounts receivable 82.0  8.4  90.4  —  90.4 
Property, plant, and equipment, net 5,795.9  1,626.3  7,422.2  (820.3) 6,601.9 
Restricted cash 65.2  31.1  96.3  —  96.3 
Other assets 38.1  1.6  39.7  —  39.7 
Total assets $ 5,984.7  $ 1,667.4  $ 7,652.1  $ (820.3) $ 6,831.8 
Accounts payable and accrued liabilities $ 141.4  $ 30.9  $ 172.3  $ —  $ 172.3 
Debt, net 3,340.5  1,228.3  4,568.8  —  4,568.8 
Deferred income taxes 1,062.3  1.1  1,063.4  (186.2) 877.2 
Other liabilities 25.7  —  25.7  —  25.7 
Total liabilities 4,569.9  1,260.3  5,830.2  (186.2) 5,644.0 
Noncontrolling interest —  277.2  277.2  —  277.2 
Total Equity $ 1,414.8  $ 129.9  $ 1,544.7  $ (634.1) $ 910.6 
(1) Net deferred profit on railcars sold to the Leasing Group consists of intersegment profit that is eliminated in consolidation. Net deferred profit and the related deferred tax impact are included as adjustments to the property, plant, and equipment, net and deferred income taxes line items, respectively, in the Eliminations – Lease Subsidiary column above to reflect the net book value of the railcars purchased by the Leasing Group from the Rail Products Group based on manufacturing cost. See Note 4 and Note 7 for a further discussion regarding our investment in our partially-owned leasing subsidiaries and the related indebtedness.

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  Three Months Ended June 30, Six Months Ended June 30,
  2021 2020 Percent 2021 2020 Percent
($ in millions) Change ($ in millions) Change
Revenues:
Leasing and management $ 185.1  $ 182.7  1.3  % $ 368.6  $ 374.7  (1.6) %
Sales of railcars owned one year or less at the time of sale (1)
—  10.1  (100.0) % —  54.4  (100.0) %
Total revenues $ 185.1  $ 192.8  (4.0) % $ 368.6  $ 429.1  (14.1) %
Operating profit (2):
Leasing and management $ 70.0  $ 78.5  (10.8) % $ 146.6  $ 161.0  (8.9) %
Lease portfolio sales (1)
$ 11.1  $ 4.4  152.3  % 12.8  14.8  (13.5) %
Total operating profit $ 81.1  $ 82.9  (2.2) % $ 159.4  $ 175.8  (9.3) %
Total operating profit margin 43.8  % 43.0  % 43.2  % 41.0  %
Leasing and management operating profit margin
37.8  % 43.0  % 39.8  % 43.0  %
Selected expense information:
Depreciation (3)
$ 57.2  $ 54.0  5.9  % $ 111.8  $ 107.6  3.9  %
Maintenance and compliance $ 25.3  $ 23.0  10.0  % $ 50.9  $ 48.9  4.1  %
Rent $ 1.7  $ 3.0  (43.3) % $ 3.4  $ 6.0  (43.3) %
Selling, engineering, and administrative expenses
$ 13.2  $ 13.0  1.5  % $ 24.5  $ 27.3  (10.3) %
Interest (4)
$ 57.0  $ 47.1  21.0  % $ 102.7  $ 102.2  0.5  %
(1) Beginning in the fourth quarter of 2020, we made a prospective change in the presentation of sales of railcars from the lease fleet. Therefore, all railcar sales for the three and six months ended June 30, 2021 are presented as a net gain or loss from the disposal of a long-term asset regardless of the age of railcar that is sold. See Note 1 for more information.
(2) Operating profit includes: depreciation; maintenance and compliance; rent; and selling, engineering, and administrative expenses. Amortization of deferred profit on railcars sold from the Rail Products Group to the Leasing Group is included in the operating profit of the Leasing Group, resulting in the recognition of depreciation expense based on our original manufacturing cost of the railcars. Interest expense is not a component of operating profit and includes the effect of hedges.
(3) Depreciation expense related to our small cube covered hopper railcars decreased by approximately $3.5 million and $7.0 million for the three and six months ended June 30, 2021, respectively, relative to the three and six months ended June 30, 2020 as a result of the impairment charge recorded in the second quarter of 2020 related to these railcars.
(4) Interest expense for the three and six months ended June 30, 2021 includes $11.7 million of loss on extinguishment of debt associated with the refinancing of our partially-owned subsidiaries' debt. See Note 7 for more information. Interest expense for the six months ended June 30, 2020 includes $5.0 million of loss on extinguishment of debt associated with the early redemption of debt.
Information related to lease portfolio sales is as follows:
Three Months Ended
June 30, 		Six Months Ended
June 30,
2021 2020 2021 2020
(in millions)
Lease portfolio sales $ 71.5  $ 73.8  $ 88.8  $ 186.6 
Operating profit on lease portfolio sales $ 11.1  $ 4.4  $ 12.8  $ 14.8 
Operating profit margin on lease portfolio sales 15.5  % 6.0  % 14.4  % 7.9  %
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Railcar Leasing Equipment Portfolio. The Leasing Group's equipment consists primarily of railcars leased by third parties. The Leasing Group purchases equipment manufactured predominantly by the Rail Products Group and enters into lease contracts with third parties with terms generally ranging between one year and ten years. The Leasing Group primarily enters into operating leases. Future contractual minimum rental revenues on operating leases related to our wholly-owned and partially-owned subsidiaries are as follows:
Remaining six months of 2021 2022 2023 2024 2025 Thereafter Total
  (in millions)
Future contractual minimum rental revenues $ 285.4  $ 475.1  $ 357.0  $ 267.1  $ 186.8  $ 347.0  $ 1,918.4 
Debt. Wholly-owned subsidiaries. The Leasing Group’s debt at June 30, 2021 consisted primarily of non-recourse debt. As of June 30, 2021, Trinity’s wholly-owned subsidiaries included in the Leasing Group held equipment with a net book value of $4,731.0 million, which is pledged solely as collateral for Leasing Group debt held by those subsidiaries. The net book value of unpledged equipment at June 30, 2021 was $1,109.8 million. See Note 7 for more information regarding the Leasing Group debt.
Partially-owned subsidiaries. Debt owed by TRIP Holdings and RIV 2013 and their respective subsidiaries is nonrecourse to Trinity and TILC. Creditors of each of TRIP Holdings and RIV 2013 and their respective subsidiaries have recourse only to the particular subsidiary's assets. TRIP Holdings held equipment with a net book value of $1,137.2 million, which is pledged solely as collateral for the TRIP Holdings' debt held by its subsidiaries. TRP-2021 equipment with a net book value of $468.4 million is pledged solely as collateral for the TRP-2021 debt. See Note 4 for a description of TRIP Holdings and RIV 2013 and their respective subsidiaries.
Operating Lease Obligations. Future amounts due as well as future contractual minimum rental revenues related to the Leasing Group's railcar operating lease obligations are as follows:
Remaining six months of 2021 2022 2023 2024 2025 Thereafter Total
  (in millions)
Future operating lease obligations
$ 5.4  $ 10.1  $ 8.3  $ 4.9  $ 3.2  $ 6.2  $ 38.1 
Future contractual minimum rental revenues $ 2.6  $ 3.8  $ 1.9  $ 1.1  $ 0.3  $ 0.1  $ 9.8 
Operating lease obligations totaling $1.9 million are guaranteed by Trinity Industries, Inc. and certain subsidiaries. The Leasing Group also has future amounts due for operating lease obligations related to office space of approximately $1.8 million, which is excluded from the table above.
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Note 6. Property, Plant, and Equipment
The following table summarizes the components of property, plant, and equipment:
June 30, 2021 December 31, 2020
  (in millions)
Manufacturing/Corporate:
Land $ 22.7  $ 23.2 
Buildings and improvements 437.5  428.6 
Machinery and other 485.5  485.1 
Construction in progress 24.5  42.5 
970.2  979.4 
Less: accumulated depreciation (576.5) (577.9)
393.7  401.5 
Leasing:
Wholly-owned subsidiaries:
Machinery and other 19.4  19.5 
Equipment on lease 7,154.8  7,010.6 
7,174.2  7,030.1 
Less: accumulated depreciation (1,320.5) (1,234.2)
5,853.7  5,795.9 
Partially-owned subsidiaries:
Equipment on lease 2,255.6  2,248.2 
Less: accumulated depreciation (650.0) (621.9)
1,605.6  1,626.3 
Deferred profit on railcars sold to the Leasing Group (1,062.9) (1,064.7)
Less: accumulated amortization 258.6  244.4 
(804.3) (820.3)
$ 7,048.7  $ 7,003.4 

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Note 7. Debt
The carrying amounts of our long-term debt are as follows:
June 30, 2021 December 31, 2020
  (in millions)
Corporate – Recourse:
Revolving credit facility $ 50.0  $ 50.0 
Senior notes, net of unamortized discount of $0.2 and $0.2
399.8  399.8 
449.8  449.8 
Less: unamortized debt issuance costs (1.4) (1.6)
Total recourse debt 448.4  448.2 
Leasing – Non-recourse:
Wholly-owned subsidiaries:
Secured railcar equipment notes, net of unamortized discount of $0.5 and $0.6
2,318.1  2,042.4 
2017 promissory notes, net of unamortized discount of $9.0 and $10.1
781.4  802.7 
TILC warehouse facility 534.2  519.4 
3,633.7  3,364.5 
Less: unamortized debt issuance costs (26.4) (24.0)
3,607.3  3,340.5 
Partially-owned subsidiaries:
Secured railcar equipment notes, net of unamortized discount of $0.3 and $—
915.1  1,237.5 
TRIP Railcar Co. term loan 329.6  — 
Less: unamortized debt issuance costs (12.2) (9.2)
1,232.5  1,228.3 
Total non–recourse debt 4,839.8  4,568.8 
Total debt $ 5,288.2  $ 5,017.0 
Estimated Fair Value of Debt – The estimated fair value of our 4.55% senior notes due 2024 ("Senior Notes") is based on a quoted market price in a market with little activity (Level 2 input). The estimated fair values of our secured railcar equipment notes are based on our estimate of their fair value using unobservable input values provided by a third party (Level 3 inputs). The respective carrying values of our revolving credit facility, 2017 promissory notes, TILC warehouse facility, and TRIP Railcar Co. term loan approximate fair value because the interest rate adjusts to the market interest rate. The estimated fair values of our long-term debt are as follows:
June 30, 2021 December 31, 2020
(in millions)
Level 1 $ 1,695.2  $ 1,372.1 
Level 2 426.2  420.3 
Level 3 3,313.7  3,462.4 
$ 5,435.1  $ 5,254.8 
Revolving Credit Facility – We have a $450.0 million unsecured corporate revolving credit facility. During the six months ended June 30, 2021, we had total borrowings of $370.0 million and total repayments of $370.0 million under the revolving credit facility. Additionally, we had outstanding letters of credit issued in an aggregate amount of $35.2 million. Of the $364.8 million remaining unused amount, $361.1 million is available for borrowing as of June 30, 2021. The outstanding letters of credit as of June 30, 2021 are scheduled to expire in July 2022. The revolving credit facility bears interest at a variable rate which resulted in an interest rate of LIBOR plus 1.75%, with a LIBOR floor of 0.30%, as of June 30, 2021. A commitment fee accrues on the average daily unused portion of the revolving facility at the rate of 0.175% to 0.40% (0.25% as of June 30, 2021).
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The revolving credit facility requires the maintenance of ratios related to minimum interest coverage for the leasing and manufacturing operations and maximum leverage. In March 2021, we amended our revolving credit facility to increase the maximum leverage ratio through March 31, 2022 and to decrease the minimum interest coverage ratio through December 31, 2021 to provide additional near-term flexibility. As of June 30, 2021, we were in compliance with all such financial covenants.
TILC Warehouse Loan Facility – TILC has a $1.0 billion warehouse loan facility, which was established to finance railcars owned by TILC. In March 2021, the facility was extended through March 15, 2024, the total commitment was increased from $750 million to $1.0 billion, with a potential increase of up to an additional $250 million, subject to certain conditions, and provided for a facility margin of 185 basis points. During the six months ended June 30, 2021, we had total borrowings of $257.3 million and total repayments of $242.5 million under the TILC warehouse loan facility. Under the renewed facility, the entire unused facility amount of $465.8 million was available as of June 30, 2021 based on the amount of warehouse-eligible, unpledged equipment. Advances under the facility bear interest at a defined index rate plus a margin, for an all-in interest rate of 1.95% at June 30, 2021.
TRL-2021 – In June 2021, Trinity Rail Leasing 2021 LLC, a Delaware limited liability company ("TRL-2021") and a limited purpose, indirect wholly-owned subsidiary of the Company owned through TILC, issued an aggregate principal amount of (i) $305.2 million of its Series 2021-1 Class A Green Secured Railcar Equipment Notes (the "TRL-2021 Class A Notes") and (ii) $19.8 million of its Series 2021-1 Class B Green Secured Railcar Equipment Notes (the "TRL-2021 Class B Notes") (the TRL-2021 Class A Notes and the TRL-2021 Class B Notes are, collectively, the “TRL-2021 Notes”). The TRL-2021 Class A Notes bear interest at a fixed rate of 2.26%, and the TRL-2021 Class B Notes bear interest at a fixed rate of 3.08%. The TRL-2021 Notes are payable monthly, and have a stated final maturity date of July 19, 2051. We incurred $3.3 million in debt issuance costs, which will be amortized to interest expense through the anticipated repayment date of the TRL-2021 Notes. The TRL-2021 Notes are obligations of TRL-2021 and are non-recourse to Trinity. The obligations are secured by a portfolio of railcars and operating leases thereon, certain cash reserves, and other assets acquired and owned by TRL-2021. Net proceeds received from the railcars acquired in connection with the issuance of the TRL-2021 Notes were used to repay approximately $214.4 million of borrowings under TILC's warehouse loan facility and for general corporate purposes.
June 2021 Refinancing of Partially-Owned Leasing Subsidiaries
Triumph Rail – In June 2021, Triumph Rail, formerly known as TRIP Master Funding, issued an aggregate principal amount of (i) $535.0 million of its Series 2021-2 Class A Green Secured Railcar Equipment Notes (the “Triumph Class A Notes”) and (ii) $25.4 million of its Series 2021-2 Class B Green Secured Railcar Equipment Notes (the “Triumph Class B Notes”) (the Triumph Class A Notes and the Triumph Class B Notes are, collectively, the “Triumph Notes”). The Triumph Class A Notes bear interest at a fixed rate of 2.15%, and the Triumph Class B Notes bear interest at a fixed rate of 3.08%. The Triumph Notes are payable monthly, and have a stated final maturity date of June 15, 2051. We incurred $5.6 million in debt issuance costs, which will be amortized to interest expense through the anticipated repayment date of the Triumph Notes. The Triumph Notes are non-recourse to Trinity, TILC, TRIP Holdings, and the other equity investors in TRIP Holdings, and are secured by Triumph Rail's portfolio of railcars and operating leases thereon, its cash reserves, and all other assets owned by Triumph Rail.
Triumph Rail used the net proceeds received from the issuance of the Triumph Notes, as well as proceeds from the sale of railcars and related operating leases to TRIP Railcar Co. described below, to redeem its outstanding debt, consisting of (i) the Series 2011 Class A-2 TRIP Master Funding Secured Railcar Equipment Notes due July 2041, (ii) the Series 2014-1 Class A-2 Secured Railcar Equipment Notes due April 2044, and (iii) the Series 2017-1 Secured Railcar Equipment Notes due August 2047, of which $869.1 million was outstanding at the redemption date. The all-in rate for these notes was 5.16% per annum at the time of redemption. In connection with the redemption, we recognized a loss on extinguishment of debt of $8.7 million, which included a $3.3 million early redemption premium and a write-off of $5.4 million in unamortized debt issuance costs. These charges are reflected in the loss on extinguishment of debt line of our Consolidated Statements of Operations for the three and six months ended June 30, 2021.
TRIP Railcar Co. Term Loan – In June 2021, TRIP Railcar Co. drew down $329.6 million under a term loan agreement ("TRIP Railcar Co. term loan"). The TRIP Railcar Co. term loan was established to finance railcars and operating leases thereon purchased by TRIP Railcar Co. from Triumph Rail. The principal and interest of this indebtedness are paid from the cash flows of the underlying leases. The TRIP term loan bears interest at LIBOR plus 1.85%, for an all-in interest rate of 1.92% at June 30, 2021, and has a stated maturity date of June 2025. We incurred $2.9 million in debt issuance costs, which will be amortized to interest expense over the anticipated repayment term of the TRIP Railcar Co. term loan. The TRIP Railcar Co. term loan is non-recourse to Trinity, TILC, TRIP Holdings, and the other equity investors in TRIP Holdings; and are secured by TRIP Railcar Co.'s portfolio of railcars, operating leases thereon, and all other assets owned by TRIP Railcar Co. Net proceeds received from the transaction were used to purchase railcars and related operating leases from Triumph Rail.
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TRP-2021 – In June 2021, TRP-2021, formerly known as TRL-2012, issued an aggregate principal amount of (i) $334.0 million of its Series 2021-1 Class A Green Secured Railcar Equipment Notes (the “TRP-2021 Class A Notes”) and (ii) $21.0 million of its Series 2021-1 Class B Green Secured Railcar Equipment Notes (the “TRP-2021 Class B Notes”) (the TRP-2021 Class A Notes and the TRP-2021 Class B Notes are, collectively, the “TRP-2021 Notes”). The TRP-2021 Class A Notes bear interest at a fixed rate of 2.07%, and the TRP-2021 Class B Notes bear interest at a fixed rate of 3.06%. The TRP-2021 Notes are payable monthly, and have a stated final maturity date of June 15, 2051. We incurred $3.7 million in debt issuance costs, which will be amortized to interest expense through the anticipated repayment date of the TRP-2021 Notes. The TRP-2021 Notes are non-recourse to Trinity, TILC, RIV 2013, and the other equity investors in RIV 2013, and are secured by TRP-2021's portfolio of railcars and operating leases thereon, its cash reserves, and all other assets owned by TRP-2021.
TRP-2021 used the net proceeds from the issuance of the TRP-2021 Notes to redeem its outstanding debt, consisting of (i) the Series 2012-1 Secured Railcar Equipment Notes due January 2043 and (ii) the Series 2013-1 Class A-1 Secured Railcar Equipment Notes due July 2043, of which $348.0 million was outstanding at the redemption date. The all-in rate for these notes was 3.59% per annum at the time of redemption. In connection with the redemption, we recognized a loss on extinguishment of debt of $3.0 million, which related to the write-off of unamortized debt issuance costs. This write-off is reflected in the loss on extinguishment of debt line of our Consolidated Statements of Operations for the three and six months ended June 30, 2021.
Each of our secured railcar equipment notes, including the TRL-2021 Notes, the Triumph Rail Notes, and the TRP-2021 Notes, generally has an anticipated repayment date and a stated final maturity date. While the stated final maturity date of these notes is in 2051, the cash flows from the assets of each of TRL-2021, Triumph Rail, and TRP-2021 will be applied, pursuant to the payment priorities of their respective indentures, so as to amortize their respective notes to achieve monthly targeted principal balances. If the cash flow assumptions used in determining the targeted balances are met, it is anticipated that the Notes will be repaid well in advance of their stated final maturity date. There can be no assurance, however, that such cash flow assumptions will be realized. If these notes are not repaid by the anticipated repayment date, the respective interest rates on these notes would increase from the fixed rates stated above.
Terms and conditions of our other long-term debt, including recourse and non-recourse provisions and scheduled maturities, are described in Note 8 of our 2020 Annual Report on Form 10-K.
Note 8. Income Taxes
The effective tax rate from continuing operations for the three months ended June 30, 2021 was a benefit of 23.1%, which differs from the U.S. statutory rate of 21.0% primarily due to excess tax benefits associated with equity based compensation. The effective tax rate from continuing operations for the six months ended June 30, 2021 was an expense of 44.0%, which differs from the U.S. statutory rate primarily due to an adjustment to the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act") carryback benefit previously recognized, partially offset by excess tax benefits associated with equity based compensation.
Our effective tax rates from continuing operations for the three and six months ended June 30, 2020 were a benefit of 20.0% and a benefit of 63.6%, respectively, primarily due to carryback claims as permitted under the CARES Act, partially offset by the portion of the non-cash impairment charge that is not tax-effected because it is related to the noncontrolling interest. Our effective tax rates, without the impact of the CARES Act, were an expense of 16.9% and an expense of 15.5% for the three and six months ended June 30, 2020, respectively, which differs from the U.S. statutory rate primarily due to the impacts of state income taxes, the incremental tax on profits of branches taxed in both U.S. and foreign jurisdictions, tax return true-ups, and non-deductible executive compensation.
Income tax refunds received, net of payments, during the six months ended June 30, 2021 totaled $206.7 million. The total income tax receivable position as of June 30, 2021 was $233.1 million, primarily related to carryback claims that have been filed.
Our 2016 and 2017 tax years are effectively settled. The statutes of limitations for auditing the 2013-2015 and 2018-2020 tax years will remain open due to tax loss carryback claims that have been filed. We have state tax returns that are under audit in the normal course of business, and our Mexican subsidiaries' tax return statutes of limitations remain open for auditing 2014 forward. We believe we are appropriately reserved for any potential matters.
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Note 9. Employee Retirement Plans
The following table summarizes the components of our net retirement cost:
Three Months Ended
June 30, 		Six Months Ended
June 30,
2021 2020 2021 2020
(in millions)
Expense Components
Service cost $ —  $ —  $ —  $ — 
Interest 0.1  3.7  0.2  7.4 
Expected return on plan assets —  (5.2) —  (10.4)
Amortization of actuarial loss 0.1  1.5  0.2  3.0 
Amortization of prior service cost —  0.3  —  0.6 
Net periodic benefit cost 0.2  0.3  0.4  0.6 
Profit sharing 2.4  1.9  5.2  4.6 
Net expense $ 2.6  $ 2.2  $ 5.6  $ 5.2 
The non-service cost components of net periodic benefit cost in the table above are included in other, net (income) expense in our Consolidated Statements of Operations. For the three and six months ended June 30, 2021, net periodic benefit cost relates to the Supplemental Executive Retirement Plan.
Pension Plan Termination
On September 4, 2019, our Board of Directors approved the termination of the Trinity Industries, Inc. Consolidated Pension Plan (the "Pension Plan"), effective December 31, 2019. The Pension Plan was settled in the fourth quarter of 2020 which resulted in the Company no longer having any remaining funded pension plan obligations. Upon settlement, we recognized a pre-tax non-cash pension settlement charge in the fourth quarter of 2020 of $151.5 million, which was inclusive of all unamortized losses previously recorded in AOCL.
During the six months ended June 30, 2021, as permitted by applicable regulations, we used $10.2 million of the Pension Plan surplus to fund obligations associated with the Company's profit sharing plans. There was no funding from the Pension Plan surplus to the Company's profit sharing plans during the three months ended June 30, 2021. During the three and six months ended June 30, 2021, we used $1.0 million and $2.2 million, respectively, to fund pension administrative expenses required to finalize the settlement of the Pension Plan. The remaining surplus of the Pension Plan of $11.2 million will be used to fund final pension administrative expenses. We expect that any remaining surplus would be used for other corporate purposes, subject to applicable taxes.
Note 10. Asset Impairments and Restructuring Activities
Second quarter of 2020 impairment of small cube covered hopper railcars
During the second quarter of 2020, the oil and gas proppants (or “frac sand”) industry continued to experience economic pressure created by low oil prices, reduced fracking activity, and the ongoing economic impact of COVID-19. Significant price declines in the crude oil market, as well as lower demand for certain commodities, resulted in a decline in customer demand for certain types of railcars. As a result, certain of the Leasing Group's small cube covered hopper customers requested rent relief and, in a number of cases, filed for bankruptcy in the second quarter of 2020. Therefore, we determined that the events and circumstances that arose during the second quarter of 2020 constituted an impairment triggering event related to the small cube covered hopper car type in our lease fleet portfolio.
We performed a cash flow recoverability test of our small cube covered hopper railcars and compared the undiscounted cash flows to the carrying value of the assets. Significant management judgment was used to determine the key assumptions utilized in our impairment analysis, the substantial majority of which represent unobservable (Level 3) inputs. The aggregate impairment charge of $369.4 million is reflected in the impairment of long-lived assets line of our Consolidated Statements of Operations for the three and six months ended June 30, 2020. See Note 11 of our 2020 Annual Report on Form 10-K for further information regarding impairment of long-lived assets related to our small cube covered hopper railcars.
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Restructuring activities
During the three months ended June 30, 2021, restructuring activities resulted in a net gain of $0.7 million from the disposition of non-operating facilities included in previous restructuring plans. During the six months ended June 30, 2021, restructuring activities resulted in a net gain of $1.0 million, primarily as a result of a $1.4 million gain on the disposition of certain non-operating facilities included in previous restructuring plans, partially offset by $0.4 million in employee severance costs.
During the three months ended June 30, 2020, we recorded total restructuring charges of $0.3 million from a loss on the disposition of a non-operating facility. During the six months ended June 30, 2020, we recorded total restructuring charges of $5.8 million, consisting of $5.2 million of non-cash charges from the write-down of our corporate headquarters campus and $4.1 million in cash charges for severance costs, partially offset by a $3.5 million net gain on the disposition of a non-operating facility and certain related assets.
The following table sets forth the restructuring activity and balance of the restructuring liability, which is included in other liabilities in our Consolidated Balance Sheets:
Accrued charges as of
December 31, 2020
Charges and adjustments Payments
Accrued charges as of
June 30, 2021
(in millions)
Cash charges:
Employee severance costs $ 1.4  $ 0.4  $ (1.4) $ 0.4 
$ 1.4  $ 0.4  $ (1.4) $ 0.4 
Non-cash charges:
Gain on disposition of assets $ (1.4)
Total restructuring activities $ (1.0)
Although restructuring activities are not allocated to our reportable segments, the following tables summarize the restructuring activities by reportable segment:
Three Months Ended June 30,
2021 2020
Gain on Disposition on Assets Loss on Disposition on Assets
Railcar Leasing and Management Services Group $ —  $ — 
Rail Products Group —  — 
All Other (0.7) 0.3 
Corporate —  — 
Total restructuring activities $ (0.7) $ 0.3 

Six Months Ended June 30, 2021
Employee Severance Costs Gain on Disposition of Assets Total
(in millions)
Railcar Leasing and Management Services Group $ —  $ —  $ — 
Rail Products Group 0.3  —  0.3 
All Other —  (1.4) (1.4)
Corporate 0.1  —  0.1 
Total restructuring activities $ 0.4  $ (1.4) $ (1.0)

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Six Months Ended June 30, 2020
Employee Severance Costs Gain on Disposition of Assets Write-down of Assets Total
(in millions)
Railcar Leasing and Management Services Group $ —  $ —  $ —  $ — 
Rail Products Group 2.6  —  —  2.6 
All Other 0.1  (3.5) —  (3.4)
Corporate 1.4  —  5.2  6.6 
Total restructuring activities $ 4.1  $ (3.5) $ 5.2  $ 5.8 
Note 11. Accumulated Other Comprehensive Loss
Changes in AOCL for the six months ended June 30, 2021 are as follows:
Currency translation adjustments Unrealized gains/(losses) on derivative financial instruments Net actuarial gains/(losses) and prior service costs of defined benefit plans Accumulated Other Comprehensive Loss
  (in millions)
Balances at December 31, 2020
$ (1.3) $ (25.6) $ (4.0) $ (30.9)
Other comprehensive income, net of tax, before reclassifications —  5.8  —  5.8 
Amounts reclassified from AOCL, net of tax benefit of $—, $0.3, $0.1, and $0.4
—  1.1  0.1  1.2 
Less: noncontrolling interest —  (0.7) —  (0.7)
Other comprehensive income —  6.2  0.1  6.3 
Balances at June 30, 2021
$ (1.3) $ (19.4) $ (3.9) $ (24.6)
See Note 2 for information on the reclassification of amounts in AOCL into earnings. Reclassifications of unrealized before-tax gains and losses on derivative financial instruments are included in interest expense for our interest rate hedges and in cost of revenues for our foreign currency hedges in our Consolidated Statements of Operations. Reclassifications of before-tax net actuarial gains/(losses) and prior service costs of defined benefit plans are included in other, net (income) expense in our Consolidated Statements of Operations.
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Note 12. Common Stock and Stock-Based Compensation
Stockholders' Equity
Repurchase Agreement with ValueAct
On April 29, 2021, we entered into a stock repurchase agreement with ValueAct Capital Master Fund, L.P. (“ValueAct”), the Company's largest shareholder and a related party, to repurchase 8.1 million shares of our common stock for $27.47 per share, for an aggregate purchase price of $222.5 million, in a privately negotiated transaction. The price per share represents a discount of 3.5% from the closing price for a share of common stock on the New York Stock Exchange on April 29, 2021. Under the repurchase agreement, ValueAct will not make any additional sales of common stock without our consent through September 1, 2021. The repurchase from ValueAct was approved by our Board of Directors separately from, and will not reduce the authorized amount remaining under, the existing share repurchase program described below.
Share Repurchase Authorization
In October 2020, our Board of Directors authorized a new share repurchase program effective October 23, 2020 through December 31, 2021. The new share repurchase program authorized the Company to repurchase up to $250.0 million of its common stock. Share repurchase activity under this program is as follows:
Shares Repurchased Remaining Authorization to Repurchase
Period Number of shares Cost
(in millions) 		Cost
(in millions)
October 23, 2020 Authorization $ 250.0 
October 23, 2020 through December 31, 2020 2,974,922  $ 67.8  $ 182.2 
January 1, 2021 through March 31, 2021 1,291,860  36.8  $ 145.4 
April 1, 2021 through June 30, 2021 2,440,793  68.3  $ 77.1 
Total 6,707,575  $ 172.9 
During the three and six months ended June 30, 2021, total share repurchases were 10.5 million and 11.8 million, respectively, at a cost of approximately $290.8 million and $327.6 million, respectively. During the six months ended June 30, 2020, share repurchases totaled 1.9 million at a cost of approximately $35.4 million under the previous share repurchase program, which was completed in the third quarter of 2020. There were no shares repurchases during the three months ended June 30, 2020.
Stock-Based Compensation
Stock-based compensation totaled approximately $4.4 million and $9.8 million for the three and six months ended June 30, 2021, respectively. Stock-based compensation totaled approximately $7.6 million and $14.9 million for the three and six months ended June 30, 2020, respectively. The Company's annual grant of share-based awards generally occurs in the second quarter under our 2004 Fourth Amended and Restated Stock Option and Incentive Plan (the "Plan”). Our stock options have contractual terms of ten years. Expense related to stock options issued to eligible employees under the Plan is recognized on a straight-line basis over their vesting period. Expense related to restricted stock units ("RSUs") issued to eligible employees under the Plan is recognized ratably over the vesting period, generally between three years and four years. Beginning in 2020, certain RSU grants provide for full vesting when the award recipients reach 60 years of age and have provided at least 10 years of service to the Company, provided that the awards remain outstanding for a period of six months from the date of grant. The expense for these awards is recognized over the applicable service period for each of the eligible award recipients. Expense related to RSUs and restricted stock awards ("RSAs") granted to non-employee directors under the Plan is recognized ratably over the vesting period, generally one year. Expense related to performance units is recognized ratably from their award date to the end of the performance period, generally three years.
The following table summarizes stock-based compensation awards granted during the six months ended June 30, 2021:
Number of Shares Granted Weighted Average Grant-Date Fair Value per Award
Restricted stock units 581,746  $ 28.41 
Restricted stock awards 22,734  $ 28.48 
Performance units 240,931  $ 30.85 
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Note 13. Earnings Per Common Share
Basic net income (loss) attributable to Trinity Industries, Inc. per common share ("EPS") is computed by dividing net income (loss) attributable to Trinity remaining after allocation to unvested restricted shares by the weighted average number of basic common shares outstanding for the period. Except when the effect would be antidilutive, the calculation of diluted EPS includes the net impact of potentially dilutive common shares. The Company has certain unvested RSAs that participate in dividends on a nonforfeitable basis and are therefore considered to be participating securities. Consequently, diluted net income (loss) attributable to Trinity Industries, Inc. per common share is calculated under both the two-class method and the treasury stock method, and the more dilutive of the two calculations is presented. There were no restricted shares and stock options included in the computation of diluted earnings per common share for the three and six months ended June 30, 2020 as we incurred a loss for these periods, and any effect on loss per common share would have been antidilutive.
The following table sets forth the computation of basic and diluted net income (loss) attributable to Trinity Industries, Inc. for the three and six months ended June 30, 2021 and 2020.
  Three Months Ended June 30, Six Months Ended June 30,
  2021 2020 2021 2020
(in millions, except per share amounts)
Income (loss) from continuing operations $ 4.8  $ (287.8) $ 6.5  $ (125.3)
Less: Net loss attributable to noncontrolling interest 7.9  80.9  9.9  80.3 
Unvested restricted share participation – continuing operations —  —  —  — 
Net income (loss) from continuing operations attributable to Trinity Industries, Inc. 12.7  (206.9) 16.4  (45.0)
Net loss from discontinued operations, net of income taxes
—  —  (0.4) (0.2)
Unvested restricted share participation – discontinued operations —  —  —  — 
Net loss from discontinued operations attributable to Trinity Industries, Inc.
—  —  (0.4) (0.2)
Net income (loss) attributable to Trinity Industries, Inc., including the effect of unvested restricted share participation $ 12.7  $ (206.9) $ 16.0  $ (45.2)
Basic weighted average shares outstanding 102.8  117.3  106.4  117.6 
Effect of dilutive securities 2.3  —  2.5  — 
Diluted weighted average shares outstanding
105.1  117.3  108.9  117.6 
Basic earnings per common share:
Income (loss) from continuing operations $ 0.12  $ (1.76) $ 0.15  $ (0.38)
Income (loss) from discontinued operations —  —  —  — 
Basic net income (loss) attributable to Trinity Industries, Inc. $ 0.12  $ (1.76) $ 0.15  $ (0.38)
Diluted earnings per common share:
Income (loss) from continuing operations $ 0.12  $ (1.76) $ 0.15  $ (0.38)
Income (loss) from discontinued operations —  —  —  — 
Diluted net income (loss) attributable to Trinity Industries, Inc. $ 0.12  $ (1.76) $ 0.15  $ (0.38)
Potentially dilutive securities excluded from EPS calculation:
Antidilutive restricted shares 0.1  —  0.1  — 
Antidilutive stock options —  —  —  — 
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Note 14. Contingencies
Highway products litigation
We previously reported the filing of a False Claims Act (“FCA”) complaint in the United States District Court for the Eastern District of Texas, Marshall Division (“District Court”) styled Joshua Harman, on behalf of the United States of America, Plaintiff/Relator v. Trinity Industries, Inc., Defendant, Case No. 2:12-cv-00089-JRG (E.D. Tex.). In this case, in which the U.S. Government declined to intervene, the relator, Mr. Joshua Harman, alleged the Company violated the FCA pertaining to sales of the Company's ET-Plus® System, a highway guardrail end-terminal system (“ET Plus”). On October 20, 2014, a trial in this case concluded with a jury verdict stating that the Company and its subsidiary, Trinity Highway Products, LLC (“Trinity Highway Products”), “knowingly made, used or caused to be made or used, a false record or statement material to a false or fraudulent claim," and the District Court entered judgment on the verdict in the total amount of $682.4 million.
On September 29, 2017, the United States Court of Appeals for the Fifth Circuit ("Fifth Circuit") reversed the District Court’s $682.4 million judgment and rendered judgment as a matter of law in favor of the Company and Trinity Highway Products. On January 7, 2019, the United States Supreme Court denied Mr. Harman's petition for certiorari seeking review of the Fifth Circuit's decision. The denial of Mr. Harman's petition ended this action.
State, county, and municipal actions
Mr. Harman also has separate state qui tam actions currently pending pursuant to: the Virginia Fraud Against Taxpayers Act (Commonwealth of Virginia ex rel. Joshua M. Harman v. Trinity Industries, Inc. and Trinity Highway Products, LLC, Case No. CL13-698, in the Circuit Court, Richmond, Virginia) and the Massachusetts False Claims Act (Commonwealth of Massachusetts ex rel. Joshua M. Harman Qui Tam v. Trinity Industries, Inc. and Trinity Highway Products, LLC, Case No. 1484-CV-02364, in the Superior Court Department of the Trial Court). In addition to these two currently pending state qui tam actions, Mr. Harman has also filed a second amended complaint in a previously dismissed action pursuant to the Tennessee False Claims Act (State of Tennessee ex rel. Joshua M. Harman v. Trinity Industries, Inc., and Trinity Highway Products, LLC, Case No. 14C2652, in the Circuit Court for Davidson County, Tennessee) and sought leave to file an amended complaint in a previously dismissed action pursuant to the New Jersey False Claims Act (State of New Jersey ex rel. Joshua M. Harman v. Trinity Industries, Inc. and Trinity Highway Products, LLC, Case No.L-1344-14, in the Superior Court of New Jersey Law Division: Mercer County). In each of these cases, Mr. Harman alleged the Company violated the respective states' false claims act pertaining to sales of the ET Plus, and he is seeking damages, civil penalties, attorneys’ fees, costs and interest. Also, the respective states’ Attorneys General filed Notices of Election to Decline Intervention in all of these matters, with the exception of the Commonwealth of Virginia Attorney General, who intervened in the Virginia matter.
In a similar California state qui tam action filed by Mr. Harman (State of California ex rel. Joshua M. Harman Qui Tam v. Trinity Industries, Inc. and Trinity Highway Products, LLC, Case No. RG 14721864, in the Superior Court of California, Alameda County), on July 15, 2021, Mr. Harman filed an unopposed Request for Dismissal. On July 21, 2021, the Court entered an order dismissing the case.
The Company believes these state qui tam lawsuits are without merit and intends to vigorously defend all allegations. Other states could take similar or different actions, and could be considering similar state false claims or other litigation against the Company.
As previously reported, state qui tam actions filed by Mr. Harman in the states of Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Minnesota, Montana, Nevada, Rhode Island, Tennessee, and New Jersey were dismissed.
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The Company has been served in a lawsuit filed November 5, 2015, titled Jackson County, Missouri, individually and on behalf of a class of others similarly situated vs. Trinity Industries, Inc. and Trinity Highway Products, LLC, Case No. 1516-CV23684 (Circuit Court of Jackson County, Missouri). The case is being brought by plaintiff for and on behalf of itself and all Missouri counties with a population of 10,000 or more persons, including the City of St. Louis, and the State of Missouri’s transportation authority. The plaintiff alleges that the Company and Trinity Highway Products did not disclose design changes to the ET Plus and these allegedly undisclosed design changes made the ET Plus allegedly defective, unsafe, and unreasonably dangerous. The plaintiff alleges product liability negligence, product liability strict liability, and negligently supplying dangerous instrumentality for supplier’s business purposes. The plaintiff seeks compensatory damages, interest, attorneys' fees and costs, and in the alternative plaintiff seeks a declaratory judgment that the ET Plus is defective, the Company’s conduct was unlawful, and class-wide costs and expenses associated with removing and replacing the ET Plus throughout Missouri. On December 6, 2017, the Court granted plaintiff's Motion for Class Certification, certifying a class of Missouri counties with populations of 10,000 or more persons, including the City of St. Louis and the State of Missouri's transportation authority that have or had ET Plus guardrail end terminals with 4-inch wide guide channels installed on roadways they own or maintain. A trial date has been scheduled in this case for April 4, 2022.
The Company believes this lawsuit is without merit and intends to vigorously defend all allegations. While the financial impacts of these state, county, and municipal actions are currently unknown, they could be material.
Based on information currently available to the Company and previously disclosed, we currently do not believe that a loss is probable in any one or more of the actions described under "State, county, and municipal actions," therefore no accrual has been included in the accompanying Consolidated Financial Statements. Because of the complexity of these actions as well as the current status of certain of these actions, we are not able to estimate a range of possible losses with respect to any one or more of these actions.
Product liability cases
The Company is currently defending product liability lawsuits in several different states that are alleged to involve the ET Plus as well as other products manufactured by Trinity Highway Products. These cases are diverse in light of the randomness of collisions in general and the fact that each accident involving a roadside device, such as an end terminal, or any other fixed object along the highway, has its own unique facts and circumstances. The Company carries general liability insurance to mitigate the impact of adverse judgment exposures in these product liability cases. To the extent that the Company believes that a loss is probable with respect to these product liability cases, the accrual for such losses is included in the amounts described below under "Other matters".
Other matters
The Company is involved in claims and lawsuits incidental to our business arising from various matters, including product warranty, personal injury, environmental issues, workplace laws, and various governmental regulations. The Company evaluates its exposure to such claims and suits periodically and establishes accruals for these contingencies when a range of loss can be reasonably estimated. The range of reasonably possible losses for such matters is $10.9 million to $19.1 million, which includes our rights in indemnity and recourse to third parties of approximately $5.3 million, which is recorded in other assets on our Consolidated Balance Sheet as of June 30, 2021. This range includes any amounts related to the Highway Products litigation matters described above in the section titled “Highway products litigation." At June 30, 2021, total accruals of $11.3 million, including environmental and workplace matters described below, are included in accrued liabilities in the accompanying Consolidated Balance Sheets. The Company believes any additional liability would not be material to its financial position or results of operations.
Trinity is subject to remedial orders and federal, state, local, and foreign laws and regulations relating to the environment and the workplace. The Company has reserved $1.2 million to cover our probable and estimable liabilities with respect to the investigations, assessments, and remedial responses to such matters, taking into account currently available information and our contractual rights to indemnification and recourse to third parties. However, estimates of liability arising from future proceedings, assessments, or remediation are inherently imprecise. Accordingly, there can be no assurance that we will not become involved in future litigation or other proceedings involving the environment and the workplace or, if we are found to be responsible or liable in any such litigation or proceeding, that such costs would not be material to the Company. We believe that we are currently in substantial compliance with environmental and workplace laws and regulations.
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Georgia tornado
On March 26, 2021, a tornado damaged the Company’s rail maintenance facility in Cartersville, Georgia. We have incurred costs related to cleanup and damage remediation activities in order for the facility to resume operations in the second quarter. We believe our insurance coverage is sufficient to cover property damage costs related to the event. Accordingly, at March 31, 2021, we recorded an insurance receivable of approximately $1.2 million for property damage recoveries that we have concluded are probable of collection. As of June 30, 2021, we have received advanced payments from insurance of approximately $4.8 million for cleanup and damage remediation activities.
Any property damage insurance proceeds received in excess of the net book value of property lost and related cleanup costs will be accounted for as a gain. Additionally, the Company may be entitled to business interruption proceeds related to the event. We will not record these recoveries until final settlement has been reached with the insurance carriers.
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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) is intended to provide management's perspective on our financial condition, results of operations, liquidity, and certain other factors that may affect our future results. Our MD&A should be read in conjunction with the unaudited Consolidated Financial Statements and related Notes in Part I, Item 1 of this Quarterly Report on Form 10-Q and Item 8, Financial Statements and Supplementary Data, of our 2020 Annual Report on Form 10-K.
This MD&A includes financial measures compiled in accordance with generally accepted accounting principles ("GAAP") and certain non-GAAP measures. Please refer to the Non-GAAP Financial Measures section herein for information on the non-GAAP measures included in the MD&A, reconciliations to the most directly comparable GAAP financial measure, and the reasons why management believes each measure is useful to management and investors.
Matters Affecting Comparability
During the fourth quarter of 2020, we began presenting sales from our lease fleet in the Railcar Leasing and Management Services Group on a net basis regardless of the age of railcar that is sold. Historically, in accordance with ASC 606, Revenue from contracts with customers, we presented sales of railcars from the lease fleet on a gross basis in Revenues – Leasing and Cost of revenues – Leasing in our Consolidated Statements of Operations if the railcars had been owned for one year or less at the time of sale. Sales of railcars from the lease fleet owned for more than one year had historically been presented as a net gain or loss from the disposal of a long-term asset. We now report all sales of railcars from the lease fleet as a net gain or loss from the disposal of a long-term asset in accordance with ASC 610-20, Gains and losses from the derecognition of non-financial assets. These sales are presented in the Lease portfolio sales line in our Consolidated Statements of Operations; however, because this change in presentation was effected on a prospective basis beginning in the fourth quarter of 2020, lease portfolio sales for the three and six months ended June 30, 2020 only include sales of railcars from the lease fleet owned for more than one year. We have concluded that the new presentation is appropriate given the significant change in the strategic focus of the Company. The new presentation had no effect on the Company’s operating profit, net income, earnings per share, or Consolidated Balance Sheet.
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Table of Contents
Forward-Looking Statements
This quarterly report on Form 10-Q (or statements otherwise made by the Company or on the Company’s behalf from time to time in other reports, filings with the Securities and Exchange Commission (“SEC”), news releases, conferences, website postings or otherwise) contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Any statements contained herein that are not historical facts are forward-looking statements and involve risks and uncertainties. These forward-looking statements include expectations, beliefs, plans, objectives, future financial performances, estimates, projections, goals, and forecasts. Trinity uses the words “anticipates,” “believes,” “estimates,” “expects,” “intends,” “forecasts,” “may,” “will,” “should,” and similar expressions to identify these forward-looking statements. Potential factors, which could cause our actual results of operations to differ materially from those in the forward-looking statements, include, among others:
•market conditions and customer demand for our business products and services;
•the cyclical nature of the industries in which we compete;
•variations in weather in areas where our products are sold, used, or installed;
•naturally-occurring events, pandemics, and/or disasters causing disruption to our manufacturing, product deliveries, and production capacity, thereby giving rise to an increase in expenses, loss of revenue, and property losses;
•the impact of the coronavirus pandemic (“COVID-19”) and the response thereto, on, among other things, demand for our products and services, our customers' ability to pay, disruptions to our supply chain, our liquidity and financial position, results of operations, stock price, payment of dividends, our ability to generate new railcar orders, our ability to originate and/or renew leases at favorable rates, our ability to convert backlog to revenue, and the operational status of our facilities;
•impacts from asset impairments and related charges;
•the timing of introduction of new products;
•the timing and delivery of customer orders, lease portfolio sales, or a breach of customer contracts;
•the creditworthiness of customers and their access to capital;
•product price changes;
•changes in mix of products sold;
•the costs incurred to align manufacturing capacity with demand and the extent of its utilization;
•the operating leverage and efficiencies that can be achieved by our manufacturing businesses;
•availability and costs of steel, component parts, supplies, and other raw materials;
•competition and other competitive factors;
•changing technologies;
•material failure, interruption of service, compromised data security, phishing emails, or cybersecurity breaches in our information technology (or that of the third-party vendors who provide information technology services);
•surcharges and other fees added to fixed pricing agreements for steel, component parts, supplies, and other raw materials;
•interest rates and capital costs;
•counter-party risks for financial instruments;
•long-term funding of our operations;
•taxes;
•the stability of the governments and political and business conditions in certain foreign countries, particularly Mexico;
•changes in import and export quotas and regulations;
•business conditions in emerging economies;
•costs and results of litigation, including trial and appellate costs;
•changes in accounting standards or inaccurate estimates or assumptions in the application of accounting policies;
•changes in laws and regulations that may have an adverse effect on demand for our products and services, our results of operations, financial condition or cash flows;
•legal, regulatory, and environmental issues, including compliance of our products with mandated specifications, standards, or testing criteria and obligations to remove and replace our products following installation or to recall our products and install different products manufactured by us or our competitors;
•actions by U.S. and/or foreign governments (particularly Mexico and Canada) relative to federal government budgeting, taxation policies, government expenditures, borrowing/debt ceiling limits, tariffs, and trade policies;
•the use of social or digital media to disseminate false, misleading and/or unreliable or inaccurate information; and
•the inability to sufficiently protect our intellectual property rights.
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Any forward-looking statement speaks only as of the date on which such statement is made. Except as required by federal securities laws, Trinity undertakes no obligation to update any forward-looking statement to reflect events or circumstances after the date on which such statement is made. For a discussion of risks and uncertainties which could cause actual results to differ from those contained in the forward-looking statements, see “Risk Factors” in our 2020 Annual Report on Form 10-K, this Form 10-Q and future Forms 10-Q and Current Reports on Forms 8-K.
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Company Overview
Trinity Industries, Inc. and its consolidated subsidiaries (“Trinity,” “Company,” “we,” “our,” or "us") own businesses that are leading providers of railcar products and services in North America. Our rail-related businesses market their railcar products and services under the trade name TrinityRail®. The TrinityRail platform provides railcar leasing and management services, railcar manufacturing, and railcar maintenance and modification services. We also own businesses engaged in the manufacturing of products used on the nation's roadways and in traffic control.
We report our operating results in three principal business segments: (1) the Railcar Leasing and Management Services Group (the "Leasing Group"), which owns and operates a fleet of railcars and provides third-party fleet leasing, management, and administrative services; (2) the Rail Products Group, which manufactures and sells railcars and related parts and components, and provides railcar maintenance and modification services; and (3) All Other, which includes our highway products business and legal, environmental, and maintenance costs associated with non-operating facilities.
Executive Summary
Recent Market Developments
COVID-19
The COVID-19 pandemic significantly impacted global and North American economic conditions. The social and economic effects of the pandemic have been widespread and are ongoing. We continue to monitor the operational and financial impacts of the pandemic and other economic factors. Although we have not experienced significant interruptions to our daily operations or a material impact to our operating costs, the economic pressures created by the pandemic have negatively impacted our results of operations for the three and six months ended June 30, 2021. While we are beginning to see signs of economic recovery, we are monitoring the evolving impacts of COVID-19 variants on the economy, and expect that our results of operations may remain under pressure in the near term.
Please refer to the "Forward-Looking Statements" section above and Part I, Item 1A “Risk Factors” of the 2020 Annual Report on Form 10-K for additional information regarding the potential impacts of COVID-19 on our business.
Other Cyclical and Seasonal Trends Impacting Our Business
The industries in which we operate are cyclical in nature. Weaknesses in certain sectors of the North American and global economy may make it more difficult to sell or lease certain types of railcars. Additionally, adverse changes in commodity prices, including depressed prices in the crude oil market, or lower demand for certain commodities, could result in a decline in customer demand for various types of railcars. We continuously assess demand for our products and services and take steps to rationalize and diversify our leased railcar portfolio and align our manufacturing capacity appropriately. We diligently evaluate the creditworthiness of our customers and monitor performance of relevant market sectors; however, additional weaknesses in any of these market sectors could affect the financial viability of our underlying Leasing Group customers, which could continue to negatively impact our recurring leasing revenues and operating profits.
Additionally, current economic conditions within the industries in which our customers operate have resulted in reduced demand for railcars. Although railcar loading volumes, levels of railcars in storage, and orders for new railcar equipment are beginning to improve, railcar lease rates and utilization remain under pressure. While we currently expect this trend to continue in the near term, we believe that our rail platform is designed to respond to cyclical changes in demand and perform throughout the railcar cycle.
Steel prices have experienced an unprecedented increase since the fourth quarter of 2020 and are a significant component of our cost of revenues. We typically use contract-specific purchasing practices, existing supplier commitments, contractual price escalation provisions, and other arrangements with our customers to reduce the impact of steel price volatility on our operating profit. However, current steel prices could negatively impact demand for new railcars and create potential headwinds to operating profit in our near-term deliveries. We will continue to monitor the impact of steel price changes on our business.
Due to their transactional nature, lease portfolio sales are the primary driver of fluctuations in results in the Leasing Group. Results in our All Other Group are affected by seasonal fluctuations, with the second and third quarters historically being the quarters with the highest revenues.
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Financial and Operational Highlights
•Our revenues for the six months ended June 30, 2021 were $770.3 million, representing a decrease of 31.5%, compared to the six months ended June 30, 2020. Our operating profit for the six months ended June 30, 2021 was $127.6 million compared to operating loss for the six months ended June 30, 2020 of $234.3 million.
•The Leasing Group reported additions to the wholly-owned and partially-owned lease fleet of 4,550 railcars, for a total of 108,635 railcars as of June 30, 2021, an increase of 4.4% compared to June 30, 2020.
•The Leasing Group's lease fleet of 108,635 company-owned rail cars was 94.3% utilized as of June 30, 2021, in comparison to a lease fleet utilization of 94.7% on 104,085 company-owned railcars as of June 30, 2020. Our company-owned railcars include wholly-owned, partially-owned, and railcars under sale-leaseback arrangements.
•For the six months ended June 30, 2021, we made a net investment in our lease fleet of approximately $162.9 million, which primarily includes new railcar additions and railcar modifications, net of deferred profit, and secondary market purchases; and is net of proceeds from lease portfolio sales.
•The total value of the railcar backlog at June 30, 2021 was $1.2 billion, compared to $1.3 billion at June 30, 2020. The Rail Products Group received orders for 5,980 railcars and delivered 3,660 railcars in the six months ended June 30, 2021, in comparison to orders for 2,810 railcars and deliveries of 6,690 railcars in the six months ended June 30, 2020.
•For the six months ended June 30, 2021, we generated operating cash flows from continuing operations and Free Cash Flow After Investments and Dividends ("Free Cash Flow") of $335.1 million and $358.9 million(1), respectively, in comparison to $327.8 million and $46.7 million(1), respectively, for the six months ended June 30, 2020.
(1) Non-GAAP financial measure. See the Non-GAAP Financial Measures section within this Form 10-Q for a reconciliation to the most directly comparable GAAP measure and why management believes this measure is useful to management and investors.
See "Consolidated Results of Operations" and "Segment Discussion" below for additional information regarding our operating results.

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Returns of Capital to Shareholders
Returns of capital to shareholders in the form of dividends and share repurchases are summarized below:
TRN-20210630_G2.JPG TRN-20210630_G3.JPG
(1) Dividend yield is calculated as dividends paid for the four previous quarters divided by the closing stock price on the last trading day of each respective quarter.
(2) There were no shares repurchased during the second quarter of 2020.
(3) In the third quarter of 2020, we completed the previous share repurchase program.
(4) In the fourth quarter of 2020, our Board of Directors authorized a new $250.0 million share repurchase program.
(5) In the second quarter of 2021, we entered into a stock repurchase agreement with ValueAct Capital Master Fund, L.P. in a privately negotiated transaction. See Note 12 of the Consolidated Financial Statements for more information.
Capital Structure Updates
TILC warehouse facility – In March 2021, the Trinity Industries Leasing Company ("TILC") warehouse facility was extended through March 15, 2024, and the total facility commitment was increased from $750 million to $1.0 billion.
Repurchase Agreement with ValueAct – On April 29, 2021, we entered into a stock repurchase agreement with ValueAct Capital Master Fund, L.P. (“ValueAct”), the Company's largest shareholder and a related party, to repurchase 8.1 million shares of our common stock for $27.47 per share, for an aggregate purchase price of $222.5 million, in a privately negotiated transaction. The price per share represents a discount of 3.5% from the closing price for a share of common stock on the New York Stock Exchange on April 29, 2021. Under the repurchase agreement, ValueAct will not make any additional sales of common stock without our consent through September 1, 2021.
Triumph Rail – In June 2021, Triumph Rail LLC ("Triumph Rail"), formerly known as TRIP Master Funding LLC, an indirect, wholly-owned subsidiary of TRIP Rail Holdings LLC ("TRIP Holdings"), issued $560.4 million of its Series 2021-2 Green Secured Railcar Equipment Notes. These notes bear interest at an all-in interest rate of 2.20% and have a stated final maturity date of 2051. Net proceeds received from the issuance of these notes, as well as proceeds from the sale of railcars and related operating leases to TRIP Railcar Co. LLC described below, were used to redeem Triumph Rail's existing Secured Railcar Equipment Notes, of which $869.1 million was outstanding at the redemption date. The all-in rate for these notes was 5.16% per annum.
TRIP Railcar Co. Term Loan – In June 2021, TRIP Railcar Co. LLC ("TRIP Railcar Co."), an indirect wholly-owned subsidiary of TRIP Holdings, drew down $329.6 million under a term loan agreement ("TRIP Railcar Co. term loan"). The TRIP Railcar Co. term loan bears interest at LIBOR plus 1.85% and has a stated maturity date of June 2025. Net proceeds received from the transaction were used to purchase railcars and related operating leases from Triumph Rail.
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TRP-2021 – In June 2021, TRP 2021 LLC ("TRP-2021"), formerly known as Trinity Rail Leasing 2012 LLC, an indirect, wholly-owned subsidiary of RIV 2013 Rail Holdings LLC, issued $355.0 million of its Series 2021-1 Green Secured Railcar Equipment Notes. These notes bear interest at an all-in interest rate of 2.13% and have a stated final maturity date of 2051. Net proceeds received from these notes were used to redeem TRP-2021's existing Secured Railcar Equipment Notes, of which $348.0 million was outstanding at the redemption date. The all-in rate for these notes was 3.59% per annum.
TRL-2021 – In June 2021, Trinity Rail Leasing 2021 LLC, a Delaware limited liability company ("TRL-2021") and a limited purpose, indirect wholly-owned subsidiary of the Company owned through TILC, issued $325.0 million of its Series 2021-1 Green Secured Railcar Equipment Notes. These notes bear interest at an all-in interest rate of 2.31% and have a final maturity date of 2051. Net proceeds received from the transaction were used to repay borrowings under TILC's secured warehouse credit facility and for general corporate purposes.
See "Liquidity and Capital Resources" below for further information regarding these activities.
Litigation Updates
See Note 14 of the Consolidated Financial Statements for an update on the status of our Highway Products litigation.
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Consolidated Results of Operations
The following table summarizes our consolidated results of operations for the three and six months ended June 30, 2021 and 2020:
  Three Months Ended
June 30, 		Six Months Ended
June 30,
  2021 2020 2021 2020
  (in millions)
Revenues $ 371.5  $ 509.2  $ 770.3  $ 1,124.4 
Cost of revenues 259.2  396.6  555.2  878.6 
Selling, engineering, and administrative expenses 57.7  56.8  112.1  121.1 
Gains on dispositions of property 12.1  6.6  23.6  16.2 
Impairment of long-lived assets —  369.4  —  369.4 
Restructuring activities, net (0.7) 0.3  (1.0) 5.8 
Total operating profit (loss) 67.4  (307.3) 127.6  (234.3)
Interest expense, net 51.0  53.0  102.3  106.9 
Loss on extinguishment of debt 11.7  —  11.7  5.0 
Other, net 0.8  (0.7) 2.0  (1.5)
Income (loss) from continuing operations before income taxes 3.9  (359.6) 11.6  (344.7)
Provision (benefit) for income taxes (0.9) (71.8) 5.1  (219.4)
Income (loss) from continuing operations $ 4.8  $ (287.8) $ 6.5  $ (125.3)

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Revenues

The tables below present revenues by segment for the three and six months ended June 30, 2021 and 2020:
Three Months Ended June 30, 2021
Revenues Percent
External Intersegment Total Change
(in millions)
Railcar Leasing and Management Services Group $ 185.0  $ 0.1  $ 185.1  (4.0) %
Rail Products Group 108.3  153.5  261.8  (35.5) %
All Other 78.2  —  78.2  12.8  %
Segment Totals before Eliminations 371.5  153.6  525.1  (21.4) %
Eliminations – Lease Subsidiary —  (151.0) (151.0)
Eliminations – Other —  (2.6) (2.6)
Consolidated Total $ 371.5  $ —  $ 371.5  (27.0) %
Three Months Ended June 30, 2020
Revenues
External Intersegment Total
(in millions)
Railcar Leasing and Management Services Group $ 192.6  $ 0.2  $ 192.8 
Rail Products Group 247.3  158.3  405.6 
All Other 69.3  —  69.3 
Segment Totals before Eliminations 509.2  158.5  667.7 
Eliminations – Lease Subsidiary —  (156.0) (156.0)
Eliminations – Other —  (2.5) (2.5)
Consolidated Total $ 509.2  $ —  $ 509.2 
  Six Months Ended June 30, 2021
Revenues Percent
External Intersegment Total Change
(in millions)
Railcar Leasing and Management Services Group $ 368.3  $ 0.3  $ 368.6  (14.1) %
Rail Products Group 255.7  267.1  522.8  (42.9) %
All Other 146.3  —  146.3  10.2  %
Segment Totals before Eliminations 770.3  267.4  1,037.7  (29.7) %
Eliminations – Lease Subsidiary —  (262.3) (262.3)
Eliminations – Other —  (5.1) (5.1)
Consolidated Total $ 770.3  $ —  $ 770.3  (31.5) %
Six Months Ended June 30, 2020
Revenues
External Intersegment Total
(in millions)
Railcar Leasing and Management Services Group $ 428.7  $ 0.4  $ 429.1 
Rail Products Group 564.5  350.5  915.0 
All Other 131.2  1.5  132.7 
Segment Totals before Eliminations 1,124.4  352.4  1,476.8 
Eliminations – Lease Subsidiary —  (346.4) (346.4)
Eliminations – Other —  (6.0) (6.0)
Consolidated Total $ 1,124.4  $ —  $ 1,124.4 
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Operating Costs
Operating costs are comprised of cost of revenues; selling, engineering, and administrative costs; gains or losses on property disposals; impairment of long-lived assets; and restructuring activities. Operating costs by segment for the three and six months ended June 30, 2021 and 2020 were as follows:
  Three Months Ended
June 30, 		Six Months Ended
June 30,
  2021 2020 2021 2020
  (in millions)
Railcar Leasing and Management Services Group $ 104.0  $ 109.9  $ 209.2  $ 253.3 
Rail Products Group 258.6  397.7  528.4  882.0 
All Other 65.4  62.0  118.2  116.1 
Segment Totals before Eliminations, Corporate Expenses, Impairment of long-lived assets, and Restructuring activities 428.0  569.6  855.8  1,251.4 
Corporate 27.1  24.2  49.8  52.3 
Impairment of long-lived assets —  369.4  —  369.4 
Restructuring activities, net (0.7) 0.3  (1.0) 5.8 
Eliminations – Lease Subsidiary (148.0) (145.0) (257.5) (315.5)
Eliminations – Other (2.3) (2.0) (4.4) (4.7)
Consolidated Total $ 304.1  $ 816.5  $ 642.7  $ 1,358.7 
Operating Profit (Loss)
Operating profit (loss) by segment for the three and six months ended June 30, 2021 and 2020 was as follows:
  Three Months Ended
June 30, 		Six Months Ended
June 30,
  2021 2020 2021 2020
  (in millions)
Railcar Leasing and Management Services Group $ 81.1  $ 82.9  $ 159.4  $ 175.8 
Rail Products Group 3.2  7.9  (5.6) 33.0 
All Other 12.8  7.3  28.1  16.6 
Segment Totals before Eliminations, Corporate Expenses, Impairment of long-lived assets, and Restructuring activities 97.1  98.1  181.9  225.4 
Corporate (27.1) (24.2) (49.8) (52.3)
Impairment of long-lived assets —  (369.4) —  (369.4)
Restructuring activities, net 0.7  (0.3) 1.0  (5.8)
Eliminations – Lease Subsidiary (3.0) (11.0) (4.8) (30.9)
Eliminations – Other (0.3) (0.5) (0.7) (1.3)
Consolidated Total $ 67.4  $ (307.3) $ 127.6  $ (234.3)
Discussion of Consolidated Results
Revenues – Our revenues for the three months ended June 30, 2021 were $371.5 million, representing a decrease of $137.7 million, or 27.0%, over the prior year period. Our revenues for the six months ended June 30, 2021 were $770.3 million, representing a decrease of $354.1 million, or 31.5%, over the prior year period. The decreases in revenues primarily related to lower deliveries in the Rail Products Group and the change in the presentation of sales of railcars from the lease fleet. See Matters Affecting Comparability above and Note 1 of the Consolidated Financial Statements for further information regarding the change in presentation.
Cost of revenues – Our cost of revenues for the three months ended June 30, 2021 was $259.2 million, representing a decrease of $137.4 million, or 34.6%, over the prior year period. Our cost of revenues for the six months ended June 30, 2021 was $555.2 million, representing a decrease of $323.4 million, or 36.8%, over the prior year period. The decreases in cost of revenues were primarily due to lower deliveries in the Rail Products Group and the change in the presentation of sales of railcars from the lease fleet.
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Selling, engineering, and administrative expenses – Selling, engineering, and administrative expenses increased by 1.6% for the three months ended June 30, 2021 when compared to the prior year period primarily due to higher litigation-related expenses. Selling, engineering, and administrative expenses decreased by 7.4% for the six months ended June 30, 2021 primarily due to consulting costs incurred in the prior year period associated with realigning our operating structure to support our rail-focused strategy, partially offset by higher employee-related costs, including adjustments to incentive-based compensation.
Impairment of long-lived assets – Impairment of long-lived assets for the three and six months ended June 30, 2020 was $369.4 million related to our small cube covered hopper railcars. See Note 10 of the Consolidated Financial Statements for more information. We had no impairment of long-lived assets during the three and six months ended June 30, 2021.
Restructuring activities, net – Our restructuring activities for the three months ended June 30, 2021 resulted in a net gain of $0.7 million from the disposition of non-operating facilities. Our restructuring activities for the six months ended June 30, 2021 resulted in a net gain of $1.0 million, primarily as a result of the disposition of certain non-operating facilities, partially offset by employee transition costs. Our restructuring activities for the three months ended June 30, 2020 totaled $0.3 million. We had restructuring expenses of $5.8 million during the six months ended June 30, 2020 primarily as a result of asset write-downs related to our corporate headquarters facility and employee transition costs, partially offset by a net gain on the disposition of a non-operating facility and certain related assets.
Operating profit (loss) – Operating profit for the three months ended June 30, 2021 totaled $67.4 million, representing an increase of 121.9% from the prior year period. Operating profit for the six months ended June 30, 2021 totaled $127.6 million, representing an increase of 154.5% from the prior year period. Operating loss for the three and six months ended June 30, 2020 included a $369.4 million impairment charge related to our small cube covered hopper railcars. Operating profit for the three and six months ended June 30, 2021 was further impacted by lower deliveries in the Rail Products Group, and lower lease rates and higher fleet management operating costs in the Leasing Group. Operating profit for the six months ended June 30, 2021 was favorably impacted by lower selling, engineering, and administrative expenses.
For further information regarding the operating results of individual segments, see "Segment Discussion" below.
Interest expense, net – Interest expense, net for the three and six months ended June 30, 2021 totaled $51.0 million and $102.3 million, respectively, compared to $53.0 million and $106.9 million for the three and six months ended June 30, 2020, respectively. The decreases in interest expense, net for the three and six months ended June 30, 2021 were primarily driven lower overall borrowing costs associated with the Company's debt facilities, partially offset by higher overall average debt.
Loss on extinguishment of debt – Loss on extinguishment of debt for the three and six months ended June 30, 2021 was $11.7 million from the refinancing of our partially-owned subsidiaries' debt, which included the write-off of $8.4 million in unamortized debt issuance costs and a $3.3 million early redemption premium. Loss on extinguishment of debt for the six months ended June 30, 2020 was $5.0 million, which included a $4.7 million early redemption premium and the write-off of $0.3 million in unamortized debt issuance costs. There was no loss on extinguishment of debt for the three months ended June 30, 2020.
Income taxes – The effective tax rate from continuing operations for the three months ended June 30, 2021 was a benefit of 23.1%, which differs from the U.S. statutory rate of 21.0% primarily due to excess tax benefits associated with equity based compensation. The effective tax rate from continuing operations for the six months ended June 30, 2021 was an expense 44.0%, which differs from the U.S. statutory rate primarily due to an adjustment to the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act") carryback benefit previously recognized, partially offset by excess tax benefits associated with equity based compensation.
Our effective tax rates from continuing operations for the three and six months ended June 30, 2020 were a benefit of 20.0% and a benefit of 63.6%, respectively, primarily due to carryback claims as permitted under the CARES Act, partially offset by the portion of the non-cash impairment charge that is not tax-effected because it is related to the noncontrolling interest. Our effective tax rates, without the impact of the CARES Act, were an expense of 16.9% and an expense of 15.5% for the three and six months ended June 30, 2020, respectively, which differs from the U.S. statutory rate primarily due to the impacts of state income taxes, the incremental tax on profits of branches taxed in both U.S. and foreign jurisdictions, tax return true-ups, and non-deductible executive compensation.
Income tax refunds received, net of payments, during the six months ended June 30, 2021 totaled $206.7 million. The total income tax receivable position as of June 30, 2021 was $233.1 million, primarily related to carryback claims that have been filed.
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Segment Discussion
Railcar Leasing and Management Services Group
  Three Months Ended June 30, Six Months Ended June 30,
  2021 2020 Percent 2021 2020 Percent
  (in millions) Change (in millions) Change
Revenues:
Leasing and management $ 185.1  $ 182.7  1.3  % $ 368.6  $ 374.7  (1.6) %
Sales of railcars owned one year or less at the time of sale (1)
—  10.1  (100.0) % —  54.4  (100.0) %
Total revenues $ 185.1  $ 192.8  (4.0) % $ 368.6  $ 429.1  (14.1) %
Operating profit (2):
Leasing and management $ 70.0  $ 78.5  (10.8) % $ 146.6  $ 161.0  (8.9) %
Lease portfolio sales (1)
11.1  4.4  152.3  % 12.8  14.8  (13.5) %
Total operating profit $ 81.1  $ 82.9  (2.2) % $ 159.4  $ 175.8  (9.3) %
Total operating profit margin 43.8  % 43.0  % 43.2  % 41.0  %
Leasing and management operating profit margin
37.8  % 43.0  % 39.8  % 43.0  %
Selected expense information:
Depreciation (3)
$ 57.2  $ 54.0  5.9  % $ 111.8  $ 107.6  3.9  %
Maintenance and compliance $ 25.3  $ 23.0  10.0  % $ 50.9  $ 48.9  4.1  %
Rent $ 1.7  $ 3.0  (43.3) % $ 3.4  $ 6.0  (43.3) %
Selling, engineering, and administrative expenses
$ 13.2  $ 13.0  1.5  % $ 24.5  $ 27.3  (10.3) %
Interest (4)
$ 57.0  $ 47.1  21.0  % $ 102.7  $ 102.2  0.5  %
(1) Beginning in the fourth quarter of 2020, we made a prospective change in the presentation of sales of railcars from the lease fleet. Therefore, all railcar sales for the three and six months ended June 30, 2021 are presented as a net gain or loss from the disposal of a long-term asset regardless of the age of railcar that is sold. See Matters Affecting Comparability above and Note 1 of the Consolidated Financial Statements for more information.
(2) Operating profit includes: depreciation; maintenance and compliance; rent; and selling, engineering, and administrative expenses. Amortization of deferred profit on railcars sold from the Rail Products Group to the Leasing Group is included in the operating profits of the Leasing Group, resulting in the recognition of depreciation expense based on our original manufacturing cost of the railcars. Interest expense is not a component of operating profit and includes the effect of hedges.
(3) Depreciation expense related to our small cube covered hopper railcars decreased by approximately $3.5 million and $7.0 million for the three and six months ended June 30, 2021, respectively, relative to the three and six months ended June 30, 2020 as a result of the impairment charge recorded in the second quarter of 2020 related to these railcars.
(4) Interest expense for the three and six months ended June 30, 2021 includes $11.7 million of loss on extinguishment of debt associated with the refinancing of our partially-owned subsidiaries' debt. See Note 7 of the Consolidated Financial Statements for more information. Interest expense for the six months ended June 30, 2020 includes $5.0 million of loss on extinguishment of debt associated with the early redemption of debt.
Information related to lease portfolio sales is as follows:
Three Months Ended
June 30, 		Six Months Ended
June 30,
2021 2020 2021 2020
(in millions)
Lease portfolio sales $ 71.5  $ 73.8  $ 88.8  $ 186.6 
Operating profit on lease portfolio sales $ 11.1  $ 4.4  $ 12.8  $ 14.8 
Operating profit margin on lease portfolio sales 15.5  % 6.0  % 14.4  % 7.9  %

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Total revenues for the Railcar Leasing and Management Services Group decreased by 4.0% and 14.1% for the three and six months ended June 30, 2021, respectively, compared to the prior year period. Revenues related to sales of leased railcars owned one year or less decreased due to the change in the presentation of sales of railcars from the lease fleet. Leasing and management revenues were relatively flat for the three and six months ended June 30, 2021, respectively, when compared to the three and six months ended June 30, 2020.
Operating profit decreased by 2.2% and 9.3% for the three and six months ended June 30, 2021, respectively, compared to the prior year period primarily due to lower lease rates, higher fleet management operating costs, and slightly lower utilization, partially offset by growth in the lease fleet. Additionally, operating profit for the three months ended June 30, 2021 was favorably impacted by higher margins on lease portfolio sales.
The Leasing Group generally uses its non-recourse warehouse loan facility or cash to provide initial funding for a portion of the purchase price of the railcars. After initial funding, the Leasing Group may obtain long-term financing for the railcars in the lease fleet through non-recourse asset-backed securities; long-term non-recourse operating leases pursuant to sale-leaseback transactions; long-term recourse debt such as equipment trust certificates; long-term non-recourse promissory notes; or third-party equity.
Information regarding the Leasing Group’s lease fleet is as follows:
  June 30, 2021 June 30, 2020
Number of railcars:
Wholly-owned (1)
84,115 79,515
Partially-owned 24,520 24,570
108,635 104,085
Investor-owned 26,490 26,710
135,125 130,795
Company-owned railcars (2):
Average age in years 10.6  9.9 
Average remaining lease term in years 3.0  3.2 
Fleet utilization 94.3  % 94.7  %
(1) Includes 2,177 railcars and 2,173 railcars under sale-leaseback arrangements as of June 30, 2021 and 2020, respectively.
(2) Includes wholly-owned and partially-owned railcars and railcars under sale-leaseback arrangements.

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Rail Products Group
  Three Months Ended June 30, Six Months Ended June 30,
  2021 2020 Percent 2021 2020 Percent
  (in millions) Change (in millions) Change
Revenues:
Rail products $ 208.1  $ 326.2  (36.2) % $ 411.6  $ 733.7  (43.9) %
Maintenance services 43.0  60.5  (28.9) % 91.1  141.6  (35.7) %
Other 10.7  18.9  (43.4) % 20.1  39.7  (49.4) %
Total revenues $ 261.8  $ 405.6  (35.5) % $ 522.8  $ 915.0  (42.9) %
Operating costs:
Cost of revenues 250.0  388.5  (35.6) % 511.2  861.0  (40.6) %
Selling, engineering, and administrative expenses
8.5  9.2  (7.6) % 17.1  21.0  (18.6) %
Losses on dispositions of property
0.1  —  * 0.1  —  *
Operating profit (loss) $ 3.2  $ 7.9  (59.5) % $ (5.6) $ 33.0  (117.0) %
Operating profit (loss) margin 1.2  % 1.9  % (1.1) % 3.6  %
* Not meaningful
Information related to our Rail Products Group backlog of railcars is summarized below:
  June 30,
  2021 2020 Percent
  (in millions) Change
External customers $ 891.3  $ 829.8 
Leasing Group 286.4  507.5 
Total (1)
$ 1,177.7  $ 1,337.3  (11.9) %
  Three Months Ended June 30, Six Months Ended
June 30,
  2021 2020 2021 2020 Percent
Change
Beginning balance 8,500  12,810  8,985  15,085 
Orders received 4,570  840  5,980  2,810  112.8  %
Deliveries (1,765) (2,985) (3,660) (6,690) (45.3) %
Other adjustments (1)
—  —  —  (540)
Ending balance 11,305  10,665  11,305  10,665  6.0  %
Average selling price in ending backlog $ 104,175  $ 125,391  (16.9) %
(1) For the six months ended June 30, 2020, the adjustment includes 540 railcars valued at $81 million that were removed from the backlog because of a change in the underlying financial condition of the customers.
Revenues and cost of revenues for the Rail Products Group decreased for the three months ended June 30, 2021 by 35.5% and 35.6%, respectively, when compared to the prior year period. Revenues and cost of revenues for the Rail Products Group decreased for the six months ended June 30, 2021 by 42.9% and 40.6%, respectively, when compared to the prior year period. These decreases primarily resulted from lower deliveries and a shift in the mix of railcar products and services sold. Additionally, cost of revenues for the three and six months ended June 30, 2021 was further impacted by operational cost savings initiatives, partially offset by increases in steel prices.
Total backlog dollars decreased by 11.9% when compared to the prior year period primarily from a 16.9% lower average selling price as a result of changes in the mix of railcars in the backlog. Approximately 48.8% of our railcar backlog value is expected to be delivered during 2021 with the remainder to be delivered thereafter into 2024. The orders in our backlog from the Leasing Group are fully supported by lease commitments with external customers. The final amount of backlog attributable to the Leasing Group may vary by the time of delivery as customers may choose to change their procurement decision.
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During the three months ended June 30, 2021, railcar shipments included sales to the Leasing Group of $115.9 million with nominal deferred profit, representing 1,125 railcars, compared to $141.7 million with a deferred profit of $9.5 million, representing 1,239 railcars, in the comparable period in 2020. During the six months ended June 30, 2021, railcar shipments included sales to the Leasing Group of $208.4 million with nominal deferred profit, representing 2,071 railcars, compared to $306.2 million with a deferred profit of $26.3 million, representing 2,542 railcars, in the comparable period in 2020.
All Other
  Three Months Ended June 30, Six Months Ended June 30,
  2021 2020 Percent 2021 2020 Percent
  (in millions) Change (in millions) Change
Revenues:
Highway Products $ 78.2  $ 69.3  12.8  % $ 146.3  $ 132.7  10.2  %
Operating costs:
Cost of revenues 57.0  52.1  9.4  % 106.7  96.2  10.9  %
Selling, engineering, and administrative expenses
8.9  10.3  (13.6) % 20.7  20.4  1.5  %
Gains on dispositions of property (0.5) (0.4) * (9.2) (0.5) *
Operating profit $ 12.8  $ 7.3  75.3  % $ 28.1  $ 16.6  69.3  %
Operating profit margin 16.4  % 10.5  % 19.2  % 12.5  %
* Not meaningful
Revenues and cost of revenues increased for the three and six months ended June 30, 2021 when compared to the prior year period primarily from increased demand and higher input costs in our highway products business. Operating profit was favorably impacted in the six months ended June 30, 2021 by gains associated with the disposition of a non-operating facility. As we continue to streamline our operational footprint, we may have additional gains or losses on the disposition of other non-operating facilities.
Corporate
  Three Months Ended June 30, Six Months Ended June 30,
  2021 2020 Percent 2021 2020 Percent
  (in millions) Change (in millions) Change
Operating costs $ 27.1  $ 24.2  12.0  % $ 49.8  $ 52.3  (4.8) %
Operating costs for the three months ended June 30, 2021 increased 12.0% compared to the prior year period primarily from higher employee-related costs, including adjustments to incentive-based compensation, and higher litigation-related expenses, partially offset by reduced costs associated with streamlining our corporate structure to support our rail-focused strategy.
Operating costs for the six months ended June 30, 2021 decreased 4.8% compared to the prior year period primarily from reduced costs associated with streamlining our corporate structure to support our rail-focused strategy, partially offset by higher employee-related costs, including adjustments to incentive-based compensation.
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Liquidity and Capital Resources
Overview
We expect to finance future operating requirements with cash, cash equivalents, and short-term marketable securities; cash flows from operations; and short-term debt, long-term debt, and equity. Debt instruments that we have utilized include the TILC warehouse facility, senior notes, convertible subordinated notes, asset-backed securities, non-recourse promissory notes, sale-leaseback transactions, and our revolving credit facility.
As of June 30, 2021, we have total committed liquidity of $917.9 million. Our total available liquidity includes: $91.0 million of unrestricted cash and cash equivalents; $361.1 million unused and available under our revolving credit facility; and $465.8 million unused and available under the TILC warehouse facility based on the amount of warehouse-eligible, unpledged equipment. We believe we have access to adequate capital resources to fund operating requirements and are an active participant in the capital markets.
Liquidity Highlights
TILC warehouse facility – In March 2021, the TILC warehouse facility was extended through March 15, 2024, and the total facility commitment was increased from $750 million to $1.0 billion.
TRL-2021 – In June 2021, TRL-2021 issued $325.0 million of its Series 2021-1 Green Secured Railcar Equipment Notes. These notes bear interest at an all-in interest rate of 2.31% and have a final maturity date of 2051. Net proceeds received from the transaction were used to repay borrowings under TILC's secured warehouse credit facility and for general corporate purposes.
Dividend Payments – We paid $47.4 million in dividends to our common stockholders during the six months ended June 30, 2021.
Repurchase Agreement with ValueAct – On April 29, 2021, we entered into a stock repurchase agreement with ValueAct, the Company's largest shareholder and a related party, to repurchase 8.1 million shares of our common stock for $27.47 per share, for an aggregate purchase price of $222.5 million, in a privately negotiated transaction. The price per share represents a discount of 3.5% from the closing price for a share of common stock on the New York Stock Exchange on April 29, 2021. Under the repurchase agreement, ValueAct will not make any additional sales of common stock without our consent through September 1, 2021.
Share Repurchase Authorization – In October 2020, our Board of Directors authorized a new share repurchase program effective October 23, 2020 through December 31, 2021. The new share repurchase program authorized the Company to repurchase up to $250.0 million of its common stock. Share repurchase activity under this program is as follows:
Shares Repurchased Remaining Authorization to Repurchase
Period Number of shares Cost
(in millions) 		Cost
(in millions)
October 23, 2020 Authorization $ 250.0 
October 23, 2020 through December 31, 2020 2,974,922  $ 67.8  $ 182.2 
January 1, 2021 through March 31, 2021 1,291,860  36.8  $ 145.4 
April 1, 2021 through June 30, 2021 2,440,793  68.3  $ 77.1 
Total 6,707,575  $ 172.9 
During the three and six months ended June 30, 2021, total share repurchases were 10.5 million and 11.8 million, respectively, at a cost of approximately $290.8 million and $327.6 million, respectively.
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Cash Flows
The following table summarizes our cash flows from operating, investing, and financing activities for the six months ended June 30, 2021 and 2020:
  Six Months Ended
June 30,
  2021 2020
  (in millions)
Net cash flows from continuing operations:
Operating activities $ 335.1  $ 327.8 
Investing activities (173.0) (154.6)
Financing activities (134.4) (156.7)
Net cash flows from discontinued operations (0.4) (0.2)
Net increase in cash, cash equivalents, and restricted cash $ 27.3  $ 16.3 
Operating Activities. Net cash provided by operating activities from continuing operations for the six months ended June 30, 2021 was $335.1 million compared to net cash provided by operating activities from continuing operations of $327.8 million for the six months ended June 30, 2020. The changes in our operating assets and liabilities are as follows:
Six Months Ended
June 30,
2021 2020
(in millions)
(Increase) decrease in receivables, inventories, and other assets $ (54.1) $ 214.7 
(Increase) decrease in income tax receivable 208.6  (448.3)
Increase (decrease) in accounts payable, accrued liabilities, and other liabilities 28.6  (54.9)
Changes in operating assets and liabilities $ 183.1  $ (288.5)

The changes in our operating assets and liabilities resulted in a net source of $183.1 million for the six months ended June 30, 2021, as compared to a net use of $288.5 million for the six months ended June 30, 2020. The decrease in the income tax receivable was primarily driven by the collection of approximately $207.0 million of income tax refunds in the current year period associated with the loss carryback provisions included in recent tax legislation. Additionally, in the prior year period, the changes in our operating assets and liabilities were impacted by a customer's election to exercise a purchase option on a sales-type lease.
Investing Activities. Net cash used in investing activities for the six months ended June 30, 2021 was $173.0 million compared to $154.6 million for the six months ended June 30, 2020. Significant investing activities are as follows:
•We made a net investment in the lease fleet of $162.9 million during the six months ended June 30, 2021, compared to $127.3 million in the prior year period. Our net investment in the lease fleet primarily includes new railcar additions and railcar modifications, net of deferred profit, and secondary market purchases; and is net of proceeds from lease portfolio sales.
•We acquired a company that owns and operates proprietary railcar cleaning technology systems during the six months ended June 30, 2021 for net cash of $16.6 million. We had no acquisitions during the six months ended June 30, 2020.
Financing Activities. Net cash used in financing activities during the six months ended June 30, 2021 was $134.4 million compared to $156.7 million of net cash used in financing activities for the same period in 2020. Significant financing activities are as follows:
•During the six months ended June 30, 2021, we had total borrowings of $2,176.7 million and total repayments of $1,925.2 million, for net proceeds of $251.5 million, primarily from debt proceeds to support our investment in the lease fleet. During the six months ended June 30, 2020, we had total borrowings of $552.4 million and total repayments of $618.3 million, for net repayments of $65.9 million, primarily related to the early redemption of debt, partially offset by debt proceeds to support our investment in the lease fleet.
•We paid $47.4 million and $46.4 million in dividends to our common stockholders during the six months ended June 30, 2021 and 2020, respectively.
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•We repurchased common stock totaling $329.4 million and $35.4 million during the six months ended June 30, 2021 and 2020, respectively. The current year period includes shares repurchased in a privately negotiated transaction with ValueAct totaling $222.5 million.
Current Debt Obligations
The revolving credit facility contains several financial covenants that require the maintenance of ratios related to minimum interest coverage for the leasing and manufacturing operations and maximum leverage. In March 2021, we amended our revolving credit facility to increase the maximum leverage ratio through March 31, 2022 and to decrease the minimum interest coverage ratio through December 31, 2021 to provide additional near-term flexibility. A summary of our financial covenants is detailed below:
Ratio Covenant
Actual at
June 30, 2021
Maximum leverage (1)
No greater than 4.50 to 1.00 2.50
Minimum interest coverage (2)
No less than 1.50 to 1.00 4.92
(1) Defined as the ratio of consolidated total indebtedness to consolidated earnings before interest, taxes, depreciation and amortization ("EBITDA") for the Borrower and its Restricted Subsidiaries for the period of four consecutive quarters ending with June 30, 2021.
(2) Defined as the ratio of the difference of (A) consolidated EBITDA less (B) consolidated capital expenditures – manufacturing and other to consolidated interest expense to the extent paid in cash, in each case for the Borrower and its Restricted Subsidiaries for the period of four consecutive quarters ending with June 30, 2021.
As of June 30, 2021, we were in compliance with all such financial covenants. Please refer to Note 7 of the Consolidated Financial Statements for a description of our current debt obligations.

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Supplemental Guarantor Financial Information
Our Senior Notes are fully and unconditionally and jointly and severally guaranteed by certain of Trinity’s 100%-owned subsidiaries: Trinity Industries Leasing Company; Trinity North American Freight Car, Inc.; Trinity Rail Group, LLC; Trinity Tank Car, Inc.; Trinity Highway Products, LLC; and TrinityRail Maintenance Services, Inc. (collectively, the "Guarantor Subsidiaries”).
The Senior Notes indenture agreement includes customary provisions for the release of the guarantees by the Guarantor Subsidiaries upon the occurrence of certain allowed events including the release of one or more of the Combined Guarantor Subsidiaries as guarantor under our revolving credit facility. See Note 8 of our 2020 Annual Report on Form 10-K. The Senior Notes are not guaranteed by any of our remaining 100%-owned subsidiaries or partially-owned subsidiaries (“Non-Guarantor Subsidiaries”).
As of June 30, 2021, assets held by the Non-Guarantor Subsidiaries included $130.3 million of restricted cash that was not available for distribution to Trinity Industries, Inc. (“Parent”), $6,551.6 million of equipment securing certain non-recourse debt, and $119.9 million of assets located in foreign locations. As of December 31, 2020, assets held by the Non-Guarantor Subsidiaries included $76.7 million of restricted cash that was not available for distribution to the Parent, $6,238.3 million of equipment securing certain non-recourse debt, and $126.9 million of assets located in foreign locations.
The following tables include the summarized financial information for Parent and Guarantor Subsidiaries (together the obligor group) on a combined basis after elimination of intercompany transactions within the obligor group (in millions). Investments in and equity in the earnings of the Non-Guarantor Subsidiaries (the non-obligor group) have been excluded.
Six Months Ended June 30, 2021
Summarized Statement of Operations:
Revenues (1)
$ 395.4 
Cost of revenues (2)
$ 339.7 
Income (loss) from continuing operations $ (48.1)
Net income (loss)
$ (48.5)
June 30, 2021 December 31, 2020
Summarized Balance Sheets:
Assets:
Receivables, net of allowance (3)
$ 244.5  $ 223.0 
Inventories $ 330.1  $ 289.1 
Property, plant, and equipment, net $ 1,189.0  $ 1,424.8 
Goodwill and other assets $ 429.5  $ 453.7 
Liabilities:
Accounts payable and accrued liabilities (4)
$ 287.6  $ 286.9 
Debt $ 448.4  $ 448.2 
Deferred income taxes $ 863.1  $ 862.8 
Other liabilities $ 156.6  $ 148.7 
Noncontrolling interest $ 268.0  $ 277.2 
(1) There were no net sales from the obligor group to Non-Guarantor Subsidiaries during the six months ended June 30, 2021.
(2) Cost of revenues includes $64.4 million of purchases from Non-Guarantor Subsidiaries during the six months ended June 30, 2021.
(3) Receivables, net of allowance includes $98.4 million and $86.7 million of receivables from Non-Guarantor Subsidiaries as of June 30, 2021 and December 31, 2020, respectively.
(4) Accounts payable includes $25.2 million and $24.0 million of payables to Non-Guarantor Subsidiaries as of June 30, 2021 and December 31, 2020, respectively.

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Capital Expenditures
For the full year 2021, we anticipate a net investment in our lease fleet of between $200 million and $250 million. Capital expenditures related to manufacturing and other activities, including expansion of our fleet maintenance capabilities and systems upgrades, are projected to range between $45 million and $55 million for the full year 2021.
Equity Investment
See Note 4 of the Consolidated Financial Statements for information about our investment in partially-owned leasing subsidiaries.
Off Balance Sheet Arrangements
As of June 30, 2021, we had letters of credit issued under our Credit Agreement in an aggregate amount of $35.2 million, the full amount of which is expected to expire in July 2022. Our letters of credit obligations support our various insurance programs and generally renew by their terms each year. See Note 7 of the Consolidated Financial Statements for further information about our corporate revolving credit facility.
Derivative Instruments
We may use derivative instruments to mitigate the impact of changes in interest rates, both in anticipation of future debt issuances and to offset interest rate variability of certain floating rate debt issuances outstanding. We also may use derivative instruments from time to time to mitigate the impact of changes in natural gas and diesel fuel prices and changes in foreign currency exchange rates. Derivative instruments that are designated and qualify as cash flow hedges are accounted for in accordance with applicable accounting standards. See Note 2 of the Consolidated Financial Statements for discussion of how we utilize our derivative instruments.
LIBOR Transition
The United Kingdom's Financial Conduct Authority, which regulates the London Interbank Offered Rate ("LIBOR"), has announced that it will no longer persuade or require banks to submit rates for the calculation of LIBOR after June 2023. In the U.S., the Alternative Reference Rates Committee has identified the Secured Overnight Financing Rate (“SOFR”) as its preferred alternative to LIBOR. We currently have LIBOR-based contracts that extend beyond June 2023 including derivative instruments, promissory notes for Trinity Rail Leasing 2017 LLC, TILC's warehouse loan facility, the TRIP Railcar Co. term loan facility, and our revolving credit facility. After LIBOR is phased out, the interest rates for these obligations might be subject to change. The replacement of LIBOR with an alternative benchmark reference rate may adversely affect interest rates and result in higher borrowing costs under these agreements and any future agreements.
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Non-GAAP Financial Measures
We have included financial measures compiled in accordance with GAAP and certain non-GAAP measures in this Quarterly Report on Form 10-Q to provide management and investors with additional information regarding our financial results. Non-GAAP measures should not be considered in isolation or as a substitute for our reporting results prepared in accordance with GAAP and, as calculated, may not be comparable to other similarly titled measures for other companies. For each non-GAAP financial measure, we provide a reconciliation to the most comparable GAAP measure.
Free Cash Flow
Total Free Cash Flow After Investments and Dividends ("Free Cash Flow") is a non-GAAP financial measure. The change in presentation of sales of railcars from the lease fleet, which was effected on a prospective basis beginning in the fourth quarter of 2020, had no effect on the Company’s previously reported Free Cash Flow.
We believe Free Cash Flow is useful to both management and investors as it provides a relevant measure of liquidity and a useful basis for assessing our ability to fund our operations and repay our debt. Free Cash Flow is reconciled to net cash provided by operating activities from continuing operations, the most directly comparable GAAP financial measure, in the following tables.
For the six months ended June 30, 2021, Free Cash Flow is defined as net cash provided by operating activities from continuing operations as computed in accordance with GAAP, plus cash proceeds from lease portfolio sales, less capital expenditures for manufacturing, dividends paid, and Equity CapEx for new leased railcars. Equity CapEx for new leased railcars is defined as leasing capital expenditures, adjusted to exclude net proceeds from (repayments of) debt.
Six Months Ended June 30, 2021
(in millions)
Net cash provided by operating activities – continuing operations $ 335.1 
Proceeds from lease portfolio sales 88.8 
Adjusted Net Cash Provided by Operating Activities 423.9 
Capital expenditures – manufacturing and other (17.4)
Dividends paid to common stockholders (47.4)
Free Cash Flow (before Capital expenditures – leasing)
359.1 
Equity CapEx for new leased railcars (0.2)
Total Free Cash Flow After Investments and Dividends $ 358.9 
Capital expenditures – leasing $ 251.7 
Less:
Payments to retire debt (1,925.2)
Proceeds from issuance of debt 2,176.7 
Net proceeds from (repayments of) debt 251.5 
Equity CapEx for new leased railcars $ 0.2 
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For the six months ended June 30, 2020, Free Cash Flow is defined as net cash provided by operating activities from continuing operations as computed in accordance with GAAP, plus cash proceeds from sales of leased railcars owned more than one year at the time of sale, less capital expenditures for manufacturing, dividends paid, and Equity CapEx for new leased railcars. Equity CapEx for new leased railcars is defined as leasing capital expenditures, net of sold lease fleet railcars owned one year or less, adjusted to exclude net proceeds from (repayments of) debt.
Six Months Ended June 30, 2020
(in millions)
Net cash provided by operating activities – continuing operations $ 327.8 
Proceeds from railcar lease fleet sales owned more than one year at the time of sale 132.2 
Adjusted Net Cash Provided by Operating Activities 460.0 
Capital expenditures – manufacturing and other (41.5)
Dividends paid to common stockholders (46.4)
Free Cash Flow (before Capital expenditures – leasing)
372.1 
Equity CapEx for new leased railcars (325.4)
Total Free Cash Flow After Investments and Dividends $ 46.7 
Capital expenditures – leasing, net of sold lease fleet railcars owned one year or less of $54.0
$ 259.5 
Less:
Payments to retire debt (618.3)
Proceeds from issuance of debt 552.4 
Net proceeds from (repayments of) debt (65.9)
Equity CapEx for new leased railcars $ 325.4 
Contractual Obligations and Commercial Commitments
Except as described below, as of June 30, 2021, there have been no material changes to our contractual obligations from December 31, 2020:
•In March 2021, the TILC warehouse facility was extended through March 15, 2024, and the total facility commitment was increased from $750 million to $1.0 billion.
•In June 2021, Triumph Rail issued $560.4 million of its Series 2021-2 Green Secured Railcar Equipment Notes. These notes have a stated final maturity date of 2051. Additionally, Triumph Rail redeemed its existing Secured Railcar Equipment Notes, of which $885.0 million was outstanding as of December 31, 2020.
•In June 2021, TRIP Railcar Co. drew down $329.6 million under a term loan agreement with a stated maturity date of June 2025.
•In June 2021, TRP-2021 issued $355.0 million of its Series 2021-1 Green Secured Railcar Equipment Notes. These notes have a stated final maturity date of 2051. Additionally, TRP-2021 redeemed its existing Secured Railcar Equipment Notes, of which $352.5 million was outstanding as of December 31, 2020.
•In June 2021, TRL-2021 issued $325.0 million of its Series 2021-1 Green Secured Railcar Equipment Notes. These notes have a stated final maturity date of 2051.
See Note 7 of the Consolidated Financial Statements for additional information regarding these debt transactions.
Recent Accounting Pronouncements
There have been no material changes in recently issued or adopted accounting standards from those disclosed in our 2020 Annual Report on Form 10-K.
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Item 3. Quantitative and Qualitative Disclosures about Market Risk
There has been no material change in our market risks since December 31, 2020 as set forth in Item 7A of our 2020 Annual Report on Form 10-K. Refer to Note 7 and Note 2 of the Consolidated Financial Statements for a discussion of debt-related activity and the impact of hedging activity, respectively, for the three and six months ended June 30, 2021.
Item 4. Controls and Procedures
Disclosure Controls and Procedures
We maintain disclosure controls and procedures designed to ensure that we are able to collect and record the information we are required to disclose in the reports we file with the SEC, and to process, summarize, and disclose this information within the time periods specified in the rules of the SEC. Our Chief Executive and Chief Financial Officers are responsible for establishing and maintaining these procedures and, as required by the rules of the SEC, evaluating their effectiveness. Based on their evaluation of our disclosure controls and procedures that took place as of the end of the period covered by this report, the Chief Executive and Chief Financial Officers concluded that these procedures are effective to 1) ensure that we are able to collect, process, and disclose the information we are required to disclose in the reports we file with the SEC within the required time periods and 2) accumulate and communicate this information to our management, including our Chief Executive and Chief Financial Officers, to allow timely decisions regarding this disclosure.
Internal Controls over Financial Reporting
During the period covered by this report, there have been no changes in our internal controls over financial reporting that have materially affected or are reasonably likely to materially affect our internal controls over financial reporting.

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PART II
Item 1. Legal Proceedings
The information provided in Note 14 of the Consolidated Financial Statements is hereby incorporated into this Part II, Item 1 by reference.
Item 1A. Risk Factors
There have been no material changes from the risk factors previously disclosed in Item 1A of our 2020 Annual Report on Form 10-K.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
This table provides information with respect to purchases by the Company of shares of its Common Stock during the quarter ended June 30, 2021:
Period
Number of Shares Purchased (1)
Average Price Paid per Share (1)
Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs (2)
Maximum Number (or Approximate Dollar Value) of Shares that May Yet Be Purchased Under the Plans or Programs (2)
(in millions)
April 1, 2021 through April 30, 2021
9,055,825  $ 27.55  955,707  $ 118.4 
May 1, 2021 through May 31, 2021
821,503  $ 26.70  415,257  $ 106.9 
June 1, 2021 through June 30, 2021
1,070,599  $ 27.90  1,069,829  $ 77.1 
Total 10,947,927  2,440,793 
(1) These columns include the following transactions during the three months ended June 30, 2021: (i) the surrender to the Company of 406,889 shares of common stock to satisfy tax withholding obligations in connection with the vesting of restricted stock issued to employees, (ii) the purchase of 245 shares of common stock by the Trustee for assets held in a non-qualified employee profit sharing plan trust, (iii) the purchase of 2,440,793 shares of common stock on the open market as part of our share repurchase program, and (iv) the purchase of 8,100,000 shares of common stock in a privately negotiated transaction with ValueAct.
(2) In October 2020, our Board of Directors authorized a new share repurchase program effective October 23, 2020 through December 31, 2021. The share repurchase program authorized the Company to repurchase up to $250.0 million of its common stock. The Company repurchased 2,440,793 shares under the share repurchase program during the three months ended June 30, 2021, at a cost of approximately $68.3 million. As of June 30, 2021, the Company had a remaining authorization to repurchase up to $77.1 million of its common stock under the share repurchase program. The approximate dollar value of shares that were eligible to be repurchased under such share repurchase program is shown as of the end of such month or quarter.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Mine Safety Disclosures
Not applicable.
Item 5. Other Information
None.
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Item 6. Exhibits
NO. DESCRIPTION
10.1
10.2
10.2.1
10.2.2
10.3
10.3.1
10.3.2
10.4
10.4.1
10.4.2
10.5
10.5.1
10.5.2
10.5.3
22.1
31.1
31.2
32.1
32.2
101.INS Inline XBRL Instance Document – the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.
101.SCH Inline XBRL Taxonomy Extension Schema Document (filed electronically herewith).
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document (filed electronically herewith).
101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document (filed electronically herewith).
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document (filed electronically herewith).
101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document (filed electronically herewith).
104 Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).
_____________________________
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
TRINITY INDUSTRIES, INC. By /s/ Eric R. Marchetto
Registrant  
  Eric R. Marchetto
  Executive Vice President and Chief Financial Officer
  July 27, 2021
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Exhibit 10.1
Execution Version

STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as of April 29, 2021 by and among Trinity Industries, Inc., a Delaware corporation (the “Company”), on the one hand, and ValueAct Capital Master Fund, L.P. (the “Selling Stockholder”), on the other hand.
Recitals
WHEREAS, the Selling Stockholder beneficially owns an aggregate of 23,105,855 shares of the Company’s outstanding common stock, par value $0.01 per share (the “Common Stock”), constituting approximately 20.9% of the outstanding Common Stock; and
WHEREAS, the Selling Stockholder desires to sell to the Company, and the Company desires to repurchase from the Selling Stockholder, an aggregate of 8,100,000 shares of Common Stock (the “Shares”) at a price of $27.47 per Share, for an aggregate price of $222,507,000 for the Shares (such aggregate purchase price, the “Purchase Price”), upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agree as follows:
Agreement
1.Repurchase.
(a)Purchase and Sale. On the date of the Closing (as defined below), upon the terms and subject to the conditions of this Agreement, the Company hereby agrees to repurchase from the Selling Stockholder, and the Selling Stockholder hereby agrees to sell, convey, assign, transfer and deliver, or cause to be delivered, to the Company, the Shares for an aggregate purchase price equal to the Purchase Price, free and clear of any and all mortgages, pledges, encumbrances, liens, security interests, options, charges, claims, deeds of trust, deeds to secure debt, title retention agreements, rights of first refusal or offer, limitations on voting rights, proxies, voting agreements, limitations on transfer or other agreements or claims of any kind or nature whatsoever (collectively, “Liens”).
(b)Closing. Subject to the terms and conditions of this Agreement and the delivery of the deliverables contemplated by Section 1(c) of this Agreement, the closing of the sale of the Shares contemplated hereby (the “Closing”) will take place on April 30, 2021 at a time and place mutually agreed by the parties.
(c)Closing Deliveries and Actions.
(i)At the Closing, the Selling Stockholder shall arrange for an appropriate electronic transfer (including through Deposit and Withdrawal at Custodian) of the Shares to one or more accounts designated by the Company, sufficient to convey to the Company good, valid and marketable title in and to the Shares, free and clear of any and all Liens.
(ii)At the Closing, the Company shall deliver to the Selling Stockholder by wire transfer to the account to be designated by the Selling Stockholder
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immediately available funds in U.S. dollars in an amount equal to the Purchase Price.
(d)Conditions of the Selling Stockholder’s Obligations at Closing. The obligation of the Selling Stockholder to sell the Shares is subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:
(i)The representations and warranties contained in Section 3 shall be true and correct in all respects as of the Closing.
(ii)The Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before the Closing.
(iii)There shall be no pending suit, action or proceeding by any federal, state, local or foreign court, administrative agency or governmental or regulatory authority or body (each, an “Authority”) to which the Company or any of its properties is subject, seeking to challenge, restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement.
(e)Conditions of the Company’s Obligations at Closing. The obligation of the Company to purchase the Shares is subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:
(i)The representations and warranties contained in Section 2 shall be true and correct in all respects as of the Closing.
(ii)The Selling Stockholder shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Selling Stockholder on or before the Closing.
(iii)There shall be no pending suit, action or proceeding by any Authority to which the Company or any of its properties is subject, seeking to challenge, restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement.
2.Representations of the Company. The Company represents and warrants to the Selling Stockholder that, as of the date hereof and at the Closing:
(a)The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b)The Company has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(c)This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except to the extent that (i) such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other
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forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceedings may be brought.
(d)The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, result in the breach of any of the terms or conditions of, constitute a default under or violate, accelerate or permit the acceleration of any other similar right of any other party under the Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, any law, rule or regulation or any agreement, lease, mortgage, note, bond, indenture, license or other document or undertaking to which the Company is a party or by which the Company or its properties may be bound, nor will such execution, delivery and consummation violate any order, writ, injunction or decree of any Authority to which the Company or any of its properties is subject, the effect of any of which, either individually or in the aggregate, would have, or reasonably be expected to have, a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, or materially impact the Company’s ability to consummate the transactions contemplated by this Agreement (a “Material Adverse Effect”); and no consent, approval, authorization, order, registration or qualification of or with any such Authority is required for the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations and orders as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(e)The Company acknowledges that it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Selling Stockholder, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Company in this Agreement.
3.Representations of the Selling Stockholder. The Selling Stockholder represents and warrants to the Company that, as of the date hereof and at the Closing:
(a)The Selling Stockholder is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.
(b)The Selling Stockholder has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement and consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(c)This Agreement has been duly and validly authorized, executed and delivered by the Selling Stockholder, and constitutes a legal, valid and binding obligation of the Selling Stockholder, enforceable in accordance with its terms, except to the extent that (i) such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceedings may be brought.
(d)The sale of the Shares to be sold by the Selling Stockholder hereunder and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, result in the breach of any of the terms or conditions of, constitute a default under or violate, accelerate or permit the acceleration of any other similar right of any other party under the governing organizational documents of the Selling Stockholder, any law, rule or regulation, or any agreement, lease, mortgage, note, bond,
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indenture, license or other document or undertaking, to which the Selling Stockholder is a party or by which the Selling Stockholder or its properties may be bound, nor will such execution, delivery and consummation violate any order, writ, injunction or decree of any Authority to which the Selling Stockholder or any of its properties is subject, the effect of any of which, either individually or in the aggregate, would affect the validity of the Shares to be sold by the Selling Stockholder or reasonably be expected to materially impact the Selling Stockholder’s ability to perform its obligations under this Agreement; and no consent, approval, authorization, order, registration or qualification of or with any such Authority is required for the performance by the Selling Stockholder of its obligations under this Agreement and the consummation by the Selling Stockholder of the transactions contemplated by this Agreement in connection with the Shares to be sold by the Selling Stockholder hereunder, except such consents, approvals, authorizations and orders as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to consummate the transactions contemplated by this Agreement.
(e)The transfer of Shares made by the Selling Stockholder at the Closing will be valid and binding obligations of the Selling Stockholder, enforceable in accordance with their respective terms, and vest in the Company good, valid and marketable title to all Shares purchased by the Company, free and clear of any and all Liens.
(f)The Selling Stockholder is a sophisticated investor and knows that the Company may have material non-public information concerning the Company and its condition (financial and otherwise), results of operations, businesses, properties, plans and prospects and that such information could be material to the Selling Stockholder’s decision to sell the Shares or otherwise materially adverse to the Selling Stockholder’s interests. The Selling Stockholder acknowledges and agrees that the Company shall have no obligation to disclose to it any such information and hereby waives and releases, to the fullest extent permitted by applicable law, any and all claims and causes of action it has or may have against Company and its affiliates, officers, partners, directors, employees, agents and representatives based upon, relating to or arising out of nondisclosure of such information or the sale of the Shares hereunder.
(g)The Selling Stockholder has adequate information concerning the business and financial condition of the Company to make an informed decision regarding the sale of the Shares and has, independently and without reliance upon the Company, made its own analysis and decision to sell the Shares. With respect to legal, tax, accounting, financial and other considerations involved in the transactions contemplated by this Agreement, including the sale of the Shares, the Selling Stockholder is not relying on the Company (or any agent or representative thereof). The Selling Stockholder has carefully considered and, to the extent it believes such discussion is necessary, discussed with professional legal, tax, accounting, financial and other advisors the suitability of the transactions contemplated by this Agreement, including the sale of the Shares.
4.Additional Covenants.
(a)The Selling Stockholder shall be responsible for the payment of any stock transfer or similar taxes in connection with the transaction contemplated by this Agreement.
(b)The Selling Stockholder agrees that, through September 1, 2021, neither it nor any of its affiliates will, without the prior written consent of the Company, (i) offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise)), or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of
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Section 16 of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”) or exercise any right with respect to the registration of any of the Lock-Up Securities, or file or cause to be filed any registration statement in connection therewith under the Securities Act of 1933 and the rules and regulations promulgated thereunder, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The foregoing shall not apply to the exercise or settlement of equity-based compensation awards of the Company granted to Brandon B. Boze under any stock incentive plan or stock purchase plan of the Company, including the withholding of shares to satisfy exercise price, tax withholding obligations or both, provided that the net underlying shares issued thereunder shall be subject to the restrictions on transfer to the Company set forth in this Section 4(b).
5.Publicity. Each of the Selling Stockholder and the Company agrees that it shall not, and that it shall cause its affiliates and representatives not to, (a) publish, release or file any initial press release or other public statement or announcement relating to the transactions contemplated by this Agreement (an “Initial Press Release”) before providing a copy of such release, statement or announcement to the other, and (b) after the date hereof, publish, release or file any future press release or other public statement or announcement relating to the transactions contemplated by this Agreement that is materially inconsistent with any such Initial Press Release; provided, however, that nothing in this Section 5 shall restrict the ability of the Company to file a Current Report on Form 8-K or periodic reports on Form 10-Q or 10-K, or the Selling Stockholder to file a Form 4 or an amendment to its Schedule 13D, in each case relating to the transactions contemplated by this Agreement, without further review or consent from the other party.
6.Notices. All notices, requests, claims, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given when delivered personally, mailed by certified or registered mail (return receipt requested and postage prepaid), sent via a nationally recognized overnight courier, or sent via email (receipt of which is confirmed) to the recipient. Such notices, demands and other communications shall be sent as follows:
If to the Selling Stockholder:
ValueAct Capital Master Fund, L.P.
One Letterman Drive, Building D, Fourth Floor
San Francisco, California 94129
Attention: [Redacted]
Email: [Redacted]
If to the Company:
Trinity Industries, Inc.
14221 N. Dallas Parkway, Suite 1100
Dallas, Texas 75254
Attention: [Redacted]
Email: [Redacted]
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With copies to (which shall not constitute notice):
[Redacted]
Attention: [Redacted]
Email: [Redacted]

[Redacted]
Attention: [Redacted]
Email: [Redacted]

or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.
7. Miscellaneous.
(a)Survival of Representations and Warranties. All representations and warranties contained herein or made in writing by any party in connection herewith shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby until the expiration of the applicable statute of limitations.
(b)Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
(c)Complete Agreement. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Selling Stockholder with respect to the subject matter hereof.
(d)Counterparts. This Agreement may be executed by any one or more of the parties hereto in counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. This Agreement, and any and all agreements and instruments executed and delivered in accordance herewith, to the extent signed and delivered by means of facsimile or other electronic format or signature (including email, “pdf,” “tif,” “jpg,” DocuSign and Adobe Sign), shall be treated in all manner and respects and for all purposes as an original signature and an original agreement or instrument and shall be considered to have the same legal effect, validity and enforceability as if it were the original signed version thereof delivered in person.
(e) Further Assurances. Subject to the other terms of this Agreement, the parties hereto agree to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be reasonably appropriate or necessary, from time to time, to effectuate the transactions contemplated by this Agreement.
(f)Successors and Assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by either party without the prior written consent of the other party. Except as otherwise provided herein, this Agreement shall
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bind and inure to the benefit of and be enforceable by the Selling Stockholder and the Company and their respective successors and assigns.
(g)No Third Party Beneficiaries or Other Rights. This Agreement is for the sole benefit of the parties and their successors and permitted assigns and nothing herein express or implied shall give or shall be construed to confer any legal or equitable rights or remedies to any person other than the parties to this Agreement and such successors and permitted assigns.
(h)Governing Law. THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF. The Company and the Selling Stockholder each agrees that any suit or proceeding arising in respect of this Agreement will be tried exclusively in the Delaware Court of Chancery in and for New Castle County, but in the event that such court does not have subject matter jurisdiction, the United States District Court for the District of Delaware, and the Company and the Selling Stockholder each agrees to submit to the jurisdiction of, and to venue in, such courts.
(i)Waiver of Jury Trial. The Company and the Selling Stockholder each hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
(j)Mutuality of Drafting. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of the Agreement.
(k)Remedies. Each of the parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance or other injunctive relief in order to enforce, or prevent any violations of, the provisions of this Agreement.
(l)Amendment and Waiver. No modification of or amendment to this Agreement shall be effective unless in a writing signed by the parties to this Agreement, and no waiver of any rights under this Agreement shall be effective unless in a writing signed by the waiving party.
(m)Expenses. Each of the Company and the Selling Stockholder shall bear its own costs and expenses in connection with the drafting, negotiation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
[Signatures appear on the following page.]

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IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement as of the date first written above.
COMPANY:
TRINITY INDUSTRIES, INC.
By: /s/ John Lee
Name: John Lee
Title: VP

SELLING STOCKHOLDER:
VALUEACT CAPITAL MASTER FUND, L.P., by
VA Partners I, LLC, its General Partner
By: /s/ Chris Allen
Name: Chris Allen
Title: CFO


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Exhibit 10.2
$355,000,000
Trinity Rail Leasing 2012 LLC
(in the process of changing its name to TRP 2021 LLC)
Green Secured Railcar Equipment Notes, Series 2021-1
Class Principal Amount of Offered Notes Interest Rate
Class A………………………. $334,000,000 2.07%
Class B………………………. $21,000,000 3.06%
NOTE PURCHASE AGREEMENT
May 4, 2021
Credit Suisse Securities (USA) LLC Eleven Madison Avenue
New York, NY 10010 		Wells Fargo Securities LLC
550 S. Tryon Street
Charlotte, NC 28202
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, NY 10019 		Deutsche Bank Securities Inc.
60 Wall Street, 5th Floor
New York, New York 10005
BofA Securities, Inc.
One Bryant Park, 11th Floor
New York, NY 10036
Fifth Third Securities, Inc.
38 Fountain Square Plaza
Cincinnati, OH 45263
Dear Ladies and Gentlemen:
1. Introductory. Trinity Rail Leasing 2012 LLC (in the process of changing its name to TRP 2021 LLC), a Delaware limited liability company (the “Issuer”) a wholly‑owned special purpose subsidiary of TRP 2021 Railcar Holdings LLC (“TRP Holdings”), a wholly owned subsidiary of RIV 2013 Rail Holdings LLC (“RIV 2013”), a joint venture among Trinity Industries Leasing Company (“TILC”), a minority member of RIV 2013, and other members that are unaffiliated with TILC, proposes, subject to the terms and conditions stated herein, to issue and sell to Credit Suisse Securities (USA) LLC (“CS”), Wells Fargo Securities LLC (“Wells Fargo”), Credit Agricole Securities (USA) Inc. (“CA”), Deutsche Bank Securities Inc. (“DB”), BofA Securities, Inc. (“BofA”) and Fifth Third Securities, Inc. (“Fifth Third”) (each, an “Initial Purchaser” and collectively, the “Initial Purchasers”) U.S. $334,000,000 principal amount of its Series 2021-1 Class A Green Secured Railcar Equipment Notes (the “Class A Notes”) and U.S. $21,000,000 principal amount of its Series 2021-1 Class B Green Secured Railcar Equipment Notes (the “Class B Notes” and, together with the Class A Notes, the “Offered Notes”) to be issued pursuant to the Master Indenture (the “Master Indenture”), as supplemented by the Series 2021-1 Supplement thereto (the “Series 2021-1 Supplemental Indenture” and, together with the Master Indenture, the
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“Indenture”), each to be dated on or about June 15, 2021, between the Issuer and U.S. Bank National Association, as indenture trustee (the “Trustee”). The United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder are herein referred to as the “Securities Act.” Capitalized terms used but not defined herein shall have the meanings given to such terms in the Offering Circular (as defined below).
2. Representations and Warranties of the Issuer, TILC, RIV 2013 and TRP Holdings. Each of the Issuer TILC, RIV 2013 and TRP Holdings, jointly and severally, represents and warrants to, and agrees with, the Initial Purchasers that, as of the date hereof (unless otherwise indicated below):
(a) The Issuer has prepared a preliminary offering circular dated April 29, 2021 (the “Preliminary Offering Circular”), and the Issuer will prepare a final offering circular dated the date hereof (the “Offering Circular”), in each case relating to the Offered Notes to be offered by the Initial Purchasers. The Preliminary Offering Circular and the Offering Circular, together with any General Use Issuer Free Writing Communication (as hereinafter defined) and all amendments and supplements to such documents, are hereinafter collectively referred to as the “Offering Document”.
The Offering Document at a particular time means the Offering Document in the form actually amended or supplemented and issued at that time. “Final Offering Document” means the Offering Document that discloses the offering price and other final terms of the Offered Notes and is dated as of the date of this Note Purchase Agreement (this “Agreement”) (even if finalized and issued subsequent to the date of this Agreement). “General Disclosure Package” means the Preliminary Offering Circular, together with any General Use Issuer Free Writing Communications (as hereinafter defined) at the Applicable Time (as hereinafter defined) considered together with the offering price on the cover page of the Offering Circular and the information contained in Schedule D hereto. “Applicable Time” means 10:10 A.M. (New York time) on the date of this Agreement. As of its date and as of the Closing Date, the Final Offering Document will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. At the Applicable Time, neither (i) the Preliminary Offering Circular, (ii) the General Disclosure Package, nor (iii) any individual Limited Use Issuer Free Writing Communication (as hereinafter defined), when considered together with the General Disclosure Package, contained, nor as of the Closing Date will contain, any untrue statement of a material fact or omitted, or will omit, to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding two sentences do not apply to statements in or omissions from the Offering Document, the General Disclosure Package or any Limited Use Issuer Free Writing Communication (as hereinafter defined) based upon written information furnished to the Issuer, TILC, RIV 2013 or TRP Holdings by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
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“Free Writing Communication” means a written communication (as such term is defined in Rule 405 under the Securities Act) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Notes and is made by means other than the Preliminary Offering Circular or the Offering Circular. “Issuer Free Writing Communication” means a Free Writing Communication prepared by or on behalf of, or authorized for distribution to investors by, the Issuer, TILC, RIV 2013 or TRP Holdings or used or referred to by the Issuer, TILC, RIV 2013 or TRP Holdings, in the form retained in the records of the Issuer, TILC, RIV 2013 or TRP Holdings. “General Use Issuer Free Writing Communication” means any Issuer Free Writing Communication that is intended for general distribution to prospective investors and is set forth on Schedule B hereto. “Limited Use Issuer Free Writing Communication” means any Issuer Free Writing Communication that is not a General Use Issuer Free Writing Communication and is set forth on Schedule C hereto.
(b) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information (as hereinafter defined); and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(c) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(d) RIV 2013 has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and RIV 2013 is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(e) TRP Holdings has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and TRP Holdings is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(f) As of the Closing Date, the Indenture and each other Transaction Document (as defined in Section 5(d)) will have been duly authorized, executed and delivered by the Issuer, TILC, RIV 2013 or TRP Holdings, as the case may be; the Offered Notes have been duly authorized by the Issuer, and when the Offered Notes are
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duly authenticated by the Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Offered Notes will have been duly executed, authenticated, issued and delivered by the Issuer and each of the Indenture, each other Transaction Document and the Offered Notes will conform to the description thereof contained in the Final Offering Document and each of the Indenture and the other Transaction Documents (assuming the valid execution and delivery thereof by the other parties thereto) and the Offered Notes will constitute valid and legally binding obligations of the Issuer, TILC, RIV 2013 or TRP Holdings, as the case may be, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(g) Except as contemplated by the Transaction Documents, no consent, approval, authorization, order of, filing with, or any other action by any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement or any Transaction Document in connection with the issuance of the Offered Notes and sale of the Offered Notes.
(h) The execution, delivery and performance of the Indenture, this Agreement and each other Transaction Document and the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof by the Issuer, TILC, RIV 2013 or TRP Holdings, as the case may be, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or conflict with, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Issuer, TILC, RIV 2013 or TRP Holdings or any of their respective properties, or (ii) any agreement or instrument to which the Issuer, TILC, RIV 2013 or TRP Holdings is a party or by which the Issuer, TILC, RIV 2013 or TRP Holdings is bound or to which any of the properties of the Issuer, TILC, RIV 2013 or TRP Holdings are subject, or (iii) the limited liability company agreement or certificate of formation of the Issuer, RIV 2013 and TRP Holdings or the certificate of incorporation or by‑laws of TILC. The Issuer has full power and authority to sell the Offered Notes as contemplated by this Agreement.
(i) This Agreement has been duly authorized, executed and delivered by each of the Issuer, TILC, RIV 2013 and TRP Holdings.
(j) Except as disclosed in the General Disclosure Package, the Issuer has good and marketable title to all real properties and all other properties and assets owned by it, free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by it; and except as disclosed in the General Disclosure Package, the Issuer holds any leased real or personal property held by it under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by it.
(k) Each of the Issuer, TILC, RIV 2013 and TRP Holdings possesses all material certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it and has not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Issuer, TILC, RIV 2013 or TRP Holdings, as applicable, would individually or in the aggregate have a material
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adverse effect on the condition (financial or other), business, properties or results of operations of the Issuer, TILC, RIV 2013 or TRP Holdings, as applicable, taken as a whole (“Material Adverse Effect”).
(l) Except as disclosed in the General Disclosure Package, none of the Issuer, TILC, RIV 2013 and TRP Holdings is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “environmental laws”), nor owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off‑site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and none of the Issuer, TILC, RIV 2013 or TRP Holdings is aware of any pending investigation which might lead to such a claim.
(m) Except as disclosed in the General Disclosure Package, there are no pending actions, suits, proceedings or investigations against or affecting the Issuer, TILC, RIV 2013 or TRP Holdings or their respective properties that, if determined adversely to the Issuer, TILC, RIV 2013 or TRP Holdings, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer, TILC, RIV 2013 or TRP Holdings to perform its obligations under the Indenture, this Agreement, or any other Transaction Document to which it is a party, or would seek to materially and adversely affect the federal income tax attributes of the Offered Notes, or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits, proceedings or investigations are threatened or, to the Issuer’s, TILC’s, RIV 2013’s and TRP Holdings’ knowledge, contemplated.
(n) Since December 31, 2020, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in each case, other than as disclosed in the Offering Document, in the condition (financial or other), business, properties or results of operations of TILC and TILC’s subsidiaries taken as a whole.
(o) The Issuer is not, and is not controlled by, an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”) and, after giving effect to the offering and sale of the Offered Notes and the application of proceeds thereof as described in the Offering Document, will not be, and will not be controlled by, an “investment company” registered or required to be registered under the Investment Company Act. The Issuer will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act, although there may be additional exemptions or exclusions available to the Issuer. The Issuer is not relying on the exemptions set forth in Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act. The Issuer does not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “Volcker Rule”.
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(p) No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Offered Notes are listed on any national securities exchange registered under Section 6 of the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (“Exchange Act”) or quoted in a U.S. automated inter‑dealer quotation system. The securities are eligible for resale pursuant to Rule 144A under the Securities Act (“Rule 144A”). The General Disclosure Package contains, and the Offering Document will contain, all the information specified in and meeting the requirements of Rule 144A.
(q) No member of the “expanded group” (including any “controlled partnership” with respect thereto), if any, of which the Issuer is a member (or, in the event the Issuer is a disregarded entity for U.S. federal income tax purposes, of which the Issuer’s owner is a member or controlled partnership with respect thereto) has purchased, or is purchasing, any of the Offered Notes. For these purposes, “controlled partnership” and “expanded group” are defined in Treasury Regulation sections 1.385‑1(c)(1) and 1.385‑1(c)(4), respectively.
(r) Assuming the representations of the Initial Purchasers set forth in Section 4(a) and (b) are true and accurate, the offer, sale and delivery of the Offered Notes to the Initial Purchasers and to subsequent purchasers in the manner contemplated by this Agreement and the Offering Document will be exempt from the registration requirements of the Securities Act, and it is not necessary to qualify an indenture in respect of the Offered Notes under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(s) Neither the Issuer, TILC, RIV 2013 or TRP Holdings, or any of their respective affiliates, or any person acting on its or their behalf (other than the Initial Purchasers, as to whom no such representation is made) (i) has, within the six‑month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (“Regulation S”)) the Offered Notes or any security of the same class or series as the Offered Notes or (ii) has offered or will offer or sell the Offered Notes (A) in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S, by means of any directed selling efforts within the meaning of Rule 902(c) of Regulation S. The Issuer, TILC, RIV 2013, TRP Holdings, and their respective affiliates and any person acting on its or their behalf (other than the Initial Purchasers, as to whom no such representation is made) have complied and will comply with the offering restrictions requirement of Regulation S. Neither the Issuer, TILC, RIV 2013 or TRP Holdings has entered and none will enter into any contractual arrangement with respect to the distribution of the Offered Notes except for this Agreement.
(t) The proceeds to the Issuer from the offering of the Offered Notes and the related transactions will not be used to purchase or carry any security (except as contemplated in Permitted Investments in respect of the Indenture Accounts).
(u) There is no “substantial U.S. market interest” as defined in Rule 902(j) of Regulation S in the Issuer’s debt securities.
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(v) Except as contemplated in the applicable Engagement Letter (as defined below) and as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings between the Issuer, TILC, RIV 2013 or TRP Holdings and any person that would give rise to a valid claim against the Issuer, TILC, RIV 2013 or TRP Holdings, or any Initial Purchaser for a brokerage commission, finder’s fee or other like payment.
(w) On the Closing Date, the Issuer will own all of its right, title and interest in and to the Railcars, together with the related Leases thereon and certain other related assets specified therein, free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or other security interest (collectively, “Liens”), except to the extent permitted in the Indenture or any other Transaction Document, as applicable.
(x) As of the Closing Date, each of the representations and warranties of the Issuer, TILC, RIV 2013 or TRP Holdings set forth in each of the Transaction Documents to which they are parties will be true and correct in all material respects.
(y) Any taxes, fees and other governmental charges that would be incurred by reason of the execution and delivery of the Transaction Documents or the execution, delivery and sale of the Offered Notes and that would be due and payable as of the Closing Date have been or will be paid prior to the Closing Date.
(z) Each of the Issuer, TILC, RIV 2013, TRP Holdings, and their respective subsidiaries and, to their knowledge, their respective affiliates, is in compliance, in all material respects, with (i) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto, and (ii) the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (the “USA Patriot Act of 2001”), as may be applicable to each of them. No part of the proceeds of the Offered Notes will be used by the Issuer, any subsidiary of the Issuer or any affiliate of the Issuer, directly or, to the knowledge of the Issuer, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of (i) the U.S. Foreign Corrupt Practices Act of 1977, as amended, or, as applicable (ii) the U.K. Bribery Act of 2010, as amended, or (iii) any other anti‑bribery or anti‑corruption laws, regulations or ordinances in any jurisdiction in which the Issuer, TILC, RIV 2013 or TRP Holdings is located or doing business (collectively, the “Anti‑Corruption Laws”).
(aa) The operations of the Issuer, TILC, RIV 2013, TRP Holdings and their respective subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”). The Issuer, TILC, RIV 2013, TRP Holdings and their respective subsidiaries (i) have instituted, maintained and are complying with policies, procedures and controls reasonably
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designed to comply with all Anti‑Corruption Laws and Money Laundering Laws and are currently complying with, and will at all times comply with, all Anti‑Corruption Laws and Money Laundering Laws, and (ii) are not knowingly and have not been under administrative, civil or criminal investigation with respect to any Anti‑Corruption Laws or Money Laundering Laws or received written notice from or made a voluntary disclosure to any governmental entity regarding a possible violation by it of any Anti‑Corruption Laws or Money Laundering Laws. The Issuer, TILC, RIV 2013, TRP Holdings and their respective subsidiaries will not fund any repayment of the Offered Notes in violation of any Anti‑Corruption Laws or Money Laundering Laws. No part of the proceeds of any Offered Notes will be used by the Issuer, TILC, RIV 2013, TRP Holdings or any of their respective subsidiaries or affiliates directly or to their knowledge, indirectly, in violation of any Anti‑Corruption Laws or Money Laundering Laws.
(ab) Neither the Issuer, TILC, RIV 2013 or TRP Holdings, any of their respective subsidiaries or, to the knowledge of the Issuer, TILC, RIV 2013 or TRP Holdings, any director, officer, agent, employee or affiliate of the Issuer, TILC, RIV 2013 or TRP Holdings or, to the knowledge of the Issuer, TILC, RIV 2013 or TRP Holdings, any of their respective subsidiaries (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), as amended by Executive Order 13886 of September 9, 2019 Modernizing Sanctions to Combat Terrorism (84 Fed. Reg. 48041 (2019)) (the “Executive Order”), or (ii) engages in any dealings or transactions with blocked persons prohibited by Section 2 of such Executive Order.
(ac) None of the Issuer, TILC, RIV 2013 or TRP Holdings, or any of their respective subsidiaries (x) is a person named on the list of “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) available at: https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists, or as otherwise published from time to time; (y) is (A) an agency of the government of a country, (B) an organization controlled by a country, or (C) a Person resident in a country that is subject to a sanctions program identified by OFAC and available at: https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country-information, or as otherwise published from time to time, as such program may be applicable to such agency, organization or person; or (z) derives more than 10% of its assets or operating income from investments in or transactions with any such country, agency, organization or Person. None of the proceeds from the Offered Notes will be used by the Issuer, TILC, RIV 2013, TRP Holdings, or any of their respective subsidiaries or, to the knowledge of the Issuer, TILC, RIV 2013, TRP Holdings, any of their respective affiliates, to finance any operations, investments or activities in, or make any payments to, any such country, agency, organization, or Person in violation of Sanctions.
(ad) None of the Issuer, TILC, RIV 2013, TRP Holdings, or any of their respective subsidiaries or, to their knowledge, any of their respective affiliates (i) is a Sanctioned Person (as hereinafter defined), (ii) is controlled by, or is acting on behalf of, a Sanctioned Person, (iii) is knowingly under investigation for an alleged breach of
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Sanction(s) by the government authority that enforces Sanctions (as hereinafter defined), (iv) will use the proceeds of any Offered Note for the purpose of providing financing to, or otherwise making funds directly or indirectly available to, any Sanctioned Person, or providing financing to or otherwise funding any transaction which would be prohibited by any applicable Sanction or, to the knowledge of the Issuer, TILC, RIV 2013 or TRP Holdings, would otherwise cause the Indenture Trustee, any Noteholder or any party to this Agreement or any entity affiliated with any such party, to be in violation of any applicable Sanction, (v) will fund any repayment of the Offered Notes with proceeds derived from any transaction that would be prohibited by applicable Sanctions or, to the knowledge of the Issuer, TILC, RIV 2013 or TRP Holdings, would otherwise cause the Indenture Trustee, any Noteholder or any party to this Agreement, to their knowledge, to be in violation of any applicable Sanction, and (vi) will fail to notify the Indenture Trustee and the Initial Purchasers in writing not more than five (5) Business Days after becoming aware of any breach of this clause (dd).
For purposes of this Agreement, a “Sanction” means any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by a Sanctions Authority.
“Sanctions Authority” means (a) the United States Government, (b) the United Nations Security Council, (c) the European Union, (d) the United Kingdom, (e) the Swiss Secretariat of Economic Affairs, (f) the governments, official institutions or agencies and other relevant sanctions authorities of any of the foregoing in clauses (a) through (e), including OFAC, the US Department of State, and Her Majesty’s Treasury or (g) any other governmental authority with jurisdiction over the Issuer, TILC, RIV 2013, TRP Holdings, any of their affiliates or, to the knowledge of the Issuer, TILC, RIV 2013, TRP Holdings, the Indenture Trustee or the Initial Purchasers.
“Sanctioned Person” means (a) any Person that is listed on, or owned or controlled by a Person listed on (or a Person acting on behalf of such a Person) (i) the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists or as otherwise published from time to time, the “Sectoral Sanctions Identifications” list maintained by OFAC available at https://home.treasury.gov/policy-issues/financial-sanctions/consolidated-sanctions-list/sectoral-sanctions-identifications-ssi-list or as otherwise published from time to time, or the “Foreign Sanctions Evaders” list maintained by OFAC available at https://home.treasury.gov/policy-issues/financial-sanctions/consolidated-sanctions-list/foreign-sanctions-evaders-fse-list or as otherwise published from time to time, (ii) the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by Her Majesty’s Treasury or (iii) any similar list maintained by, or public announcement of a Sanctions designation made by, a Sanctions Authority having jurisdiction over the Issuer, TILC, RIV 2013 or TRP Holdings, each as amended, supplemented or substituted from time to time; or (b) (i) an agency of the government of a Sanctioned Jurisdiction, (ii) an organization directly or indirectly controlled by a Sanctioned Jurisdiction or (iii) a Person resident in (or organized under the laws of) a Sanctioned Jurisdiction (to the extent subject to a Sanctions program administered by OFAC, the European Union or the United Nations), or (iv) a Person who is owned or controlled by, or acting on behalf of such a Person.
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“Sanctioned Jurisdiction” means any country or territory to the extent that the government of such country or territory is the subject of Sanctions consisting of a general embargo imposed by any Sanctions Authority.
(ae) The operations of the Issuer, TILC, RIV 2013 and TRP Holdings and their respective subsidiaries are and have been conducted at all times in material compliance with the USA Patriot Act of 2001, as amended, and the rules and regulations thereunder.
(af) In connection with any rating for the Offered Notes, the Issuer has provided to each rating agency rating the Offered Notes a written representation that satisfies the requirement of paragraph (a)(3)(iii) of Rule 17g‑5 under the Exchange Act (“Rule 17g‑5”). The Issuer has complied, and as of the Closing Date, the Issuer will comply, in all material respects with the representations, certifications and covenants made by the Issuer to S&P and KBRA (the “Hired NRSROs”) in connection with the engagement of the Hired NRSROs to issue and monitor a credit rating on the Offered Notes, including any representation provided to the Hired NRSROs by the Issuer in connection with Rule 17g‑5, and has made accessible, via a password‑protected internet website established and maintained by TILC, to any non‑hired nationally recognized statistical rating organization, as contemplated by Rule 17g‑5, all information provided to the Hired NRSROs in connection with the issuance and monitoring of the credit ratings on the Offered Notes in accordance with Rule 17g‑5. The Issuer shall be solely responsible for compliance with Rule 17g‑5 in connection with the issuance, monitoring and maintenance of the credit rating on the Offered Notes. The Initial Purchasers are not responsible for compliance with any aspect of Rule 17g‑5 in connection with the Offered Notes.
(ag) TILC engaged independent accountants for the purpose of delivering the Independent Accountants’ Report on Applying Agreed-Upon Procedures, dated on or before June 15, 2021 (such independent accountants, the “Accountants”, and such report, the “Report”), and the only report generated as a result of such engagement is the Report. None of the Issuer, TILC, RIV 2013 or TRP Holdings has engaged any third-party due diligence services providers to provide any services that would be “due diligence services” (as defined in Rule 17g-10(d)(1) under the Exchange Act) were the Offered Notes subject to such Rule.
(ah) [Reserved].
(ai) The requirements imposed on the “sponsor of a securitization transaction” in accordance with the final rules contained in Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”) implementing the credit risk retention requirements of Section 15G of the Exchange Act, do not apply to TILC, as sponsor (the “Sponsor”) or the transaction the subject of the Offered Notes.
3. Purchase, Sale and Delivery of Offered Notes. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Issuer agrees to sell to the Initial Purchasers, severally and not jointly, and each Initial Purchaser agrees severally and not jointly to purchase from the Issuer, at a purchase price of 99.22930% of the principal amount of the Class A Notes and 99.22063% of the principal amount of the Class B Notes, the
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principal amount of Offered Notes set forth opposite the name of such Initial Purchaser in Schedule A hereto.
(b) The Issuer will deliver against payment of the purchase price the Offered Notes to be offered and sold by the Initial Purchasers in reliance on Regulation S (the “Regulation S Notes”), each in the form of one or more permanent global notes in registered form without interest coupons (the “Regulation S Global Notes”) which will be deposited with the Trustee as custodian for Cede & Co., as nominee of The Depository Trust Company (“DTC”) for the respective accounts of the DTC participants for Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream, Luxembourg”) and registered in the name of Cede & Co., as nominee for DTC. The Issuer will deliver against payment of the purchase price the Offered Notes to be purchased by the Initial Purchasers hereunder and to be offered and sold by the Initial Purchasers in reliance on Rule 144A under the Securities Act (the “144A Notes”), each in the form of one permanent global note in definitive form without interest coupons (the “Restricted Global Note”) deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as nominee for DTC. The Regulation S Global Notes and the Restricted Global Note shall be assigned separate CUSIP numbers. The Global Notes shall include the legend regarding restrictions on transfer set forth under “Transfer Restrictions” in the Final Offering Document. Until the termination of the distribution compliance period (as defined in Regulation S) with respect to the offering of the Offered Notes, interests in the Regulation S Global Notes may only be held by the DTC participants for Euroclear and Clearstream, Luxembourg. Interests in any permanent Global Notes will be held only in book‑entry form through Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the limited circumstances described in the Final Offering Document.
Payment for the Regulation S Notes and the 144A Notes shall be made by each Initial Purchaser in Federal (same day) funds by or wire transfer to an account at a bank acceptable to it, on June 15, 2021, or at such other time not later than seven full business days thereafter as the Initial Purchasers and the Issuer determine, such time being herein referred to as the “Closing Date”, against delivery to the Trustee as custodian for DTC of (i) the Regulation S Global Notes representing all of the Regulation S Notes for the respective accounts of the DTC participants for Euroclear and Clearstream, Luxembourg and (ii) the Restricted Global Note representing all of the 144A Notes. The Regulation S Global Notes and the Restricted Global Note will be made available for checking at the office of Vedder Price P.C., 1633 Broadway, New York, New York 10019, at least 24 hours prior to the Closing Date.
(c) The Issuer agrees to pay each Initial Purchaser for its own account all fees and expenses as provided in the applicable engagement letter, fee letter or other written correspondence, dated or communicated on or about the date hereof, among the Issuer, TILC, RIV 2013, TRP Holdings and the applicable Initial Purchaser (each, an “Engagement Letter”).
4. Representations by Initial Purchasers; Resale by Initial Purchasers. (a) Each Initial Purchaser severally represents and warrants to the Issuer that it is an “accredited investor” within the meaning of Regulation D under the Securities Act.
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(b) Each Initial Purchaser severally acknowledges that the Offered Notes have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S or pursuant to an exemption from the registration requirements of the Securities Act. Each Initial Purchaser severally represents and agrees that it has offered and sold the Offered Notes, and will offer and sell the Offered Notes (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly, none of the Initial Purchasers nor its affiliates, nor any persons acting on its behalf or their behalf, has engaged or will engage in any directed selling efforts with respect to the Offered Notes, and such Initial Purchaser, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirement of Regulation S. Each Initial Purchaser severally agrees that, at or prior to confirmation of sale of the Offered Notes, other than a sale pursuant to Rule 144A, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases the Offered Notes from it during the restricted period a confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meanings given to them by Regulation S.”
Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Initial Purchaser severally agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement (other than any agreement among the Initial Purchasers) with respect to the distribution of the Offered Notes except with the prior written consent of the Issuer.
(d) Each Initial Purchaser severally agrees that it and each of its affiliates will not offer or sell the Offered Notes in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act, including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Initial Purchaser severally agrees, with respect to resales made in reliance on Rule 144A of any of the Offered Notes, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered Notes has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
(e) Each Initial Purchaser severally agrees that it and each of its affiliates will not communicate or cause to be communicated the Offering Document in
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Canada or to any resident of Canada and understands that any Canadian residents may not, directly or indirectly, purchase the Offered Notes or any beneficial interest therein from such Initial Purchaser.
(f) Each Initial Purchaser severally represents and agrees that (i) with respect to any oral communications regarding Rating Information with the Hired NRSROs which are initiated by the Hired NRSROs or arranged by such Initial Purchaser in connection with the issuance or monitoring of a credit rating on the Offered Notes, such Initial Purchaser (A) has referred and will refer such oral communication to the Issuer to respond to the Hired NRSROs or (B) has invited and will invite the Issuer to participate in such oral communication and (ii) any communication (other than oral communications) regarding Rating Information or delivery of Rating Information to the Hired NRSROs has been and will immediately be disclosed to the Issuer for the purpose of allowing the Issuer to make accessible to any non‑hired nationally recognized statistical rating organization all Rating Information provided to the Hired NRSROs in connection with the issuance and monitoring of the credit rating on the Offered Notes in accordance with Rule 17g‑5. “Rating Information” means any information provided to the Hired NRSROs for the purpose of (A) determining the initial credit rating for the Offered Notes, including information about the characteristics of the Railcars, related property and the legal structure of the Offered Notes, and (B) undertaking credit rating surveillance on the Offered Notes, including information about the characteristics and performance of the Railcars and related property.
(g) Each Initial Purchaser severally represents and agrees that (i) they have not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any Offered Notes to any UK Retail Investor in the UK; (ii) they have only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA received by them in connection with the issue or sale of any Offered Notes in circumstances in which section 21(1) of the FSMA does not apply to the Issuer and (iii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Offered Notes in, from or otherwise involving the United Kingdom. For the purposes of this Section 4(g): (a) the expression “UK Retail Investor” means a person who is one (or more) of the following: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law of the UK by virtue of the EUWA; (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of UK domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in the UK Prospectus Regulation; and (b) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Offered Notes.
(h) Each Initial Purchaser severally represents and agrees that that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Offered Notes to any EU Retail Investor in the European Economic
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Area. For the purposes of this provision: (a) the expression “EU Retail Investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of MiFID II; (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in the EU Prospectus Regulation; and (b) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Offered Notes.
5. Certain Agreements of the Issuer, TILC, RIV 2013 and TRP Holdings. The Issuer, TILC RIV 2013 and TRP Holdings jointly and severally agree with the Initial Purchasers that:
(a) The Issuer will advise the Initial Purchasers promptly of any proposal to amend or supplement the Offering Document and will not effect any such amendment or supplementation without the consent of the Initial Purchasers. If, at any time following delivery of any document included in the Offering Document or any Limited Use Issuer Free Writing Communication and prior to the completion of the resale of the Offered Notes by the Initial Purchasers, there occurs an event or development as a result of which such document included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time not misleading, or if it is necessary at any such time to amend or supplement the Offering Document or any Limited Use Issuer Free Writing Communication to comply with any applicable law, the Issuer will promptly notify the Initial Purchasers of such event and will promptly prepare, at its own expense, an amendment or supplement which will correct such statement or omission. Neither the Initial Purchasers’ consent to, nor the delivery by the Initial Purchasers to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7. The first sentence of this subsection does not apply to statements in or omissions from any document in the General Disclosure Package or any Limited Use Issuer Free Writing Communication in reliance upon and in conformity with written information furnished to the Issuer, TILC, RIV 2013 or TRP Holdings by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(b) The Issuer will furnish to each Initial Purchaser copies of each document comprising a part of the Offering Document and each Limited Use Issuer Free Writing Communication, in each case as soon as available and in such quantities as such Initial Purchaser requests, and the Issuer will furnish to each Initial Purchaser on the date hereof three (3) copies of each document comprising a part of the Offering Document and each Limited Use Issuer Free Writing Communication signed by a duly authorized officer of the Issuer, one of which will include the independent accountants’ reports in the Offering Document manually signed by such independent accountants. At any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, the Issuer will promptly furnish or cause to be furnished to the Initial Purchasers and, upon request of holders and prospective purchasers of the Offered Notes, to such holders and purchasers, copies of the information (the “Additional Issuer Information”)
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required to be delivered to holders and prospective purchasers of the Offered Notes in accordance with Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Notes. TILC will pay the expenses of printing and distributing to the Initial Purchasers all such documents. Any Additional Issuer Information delivered to any holders and prospective purchasers of the Offered Notes will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) The Issuer will arrange for the qualification of the Offered Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as the Initial Purchasers designate and will continue such qualifications in effect so long as required for the resale of the Offered Notes by the Initial Purchasers, provided that the Issuer will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction.
(d) So long as the Offered Notes are outstanding, if not filed electronically with the Securities and Exchange Commission (the “Commission”) or posted on the website of TILC, the Issuer will furnish to the Initial Purchasers (i) as soon as available, copies of each report furnished to the Issuer or any of its affiliates, in the case of the Issuer, pursuant to any Operative Agreement (collectively, the “Transaction Documents”), by first class mail as soon as practicable after such reports are furnished to the Issuer or any of its affiliates or shareholders, as the case may be, (ii) copies of each amendment to any of the Transaction Documents, (iii) copies of all reports and other communications (financial or other) furnished to the Trustee under the Indenture or to holders of the Offered Notes, and copies of any reports and financial statements, if any, furnished to or filed with the Commission, any governmental or regulatory authority or any national securities exchange, and (iv) from time to time such other information as the Initial Purchasers may reasonably request relating to the Issuer, TILC, RIV 2013 or TRP Holdings, or any of their respective affiliates, the Offered Notes and the Transaction Documents. TILC, RIV 2013, TRP Holdings and the Issuer shall make their officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers.
(e) During the period of three (3) years after the Closing Date, the Issuer will, upon request, furnish to the Initial Purchasers and any holder of Offered Notes a copy of the restrictions on transfer applicable to the Offered Notes.
(f) During the period of two (2) years after the Closing Date none of the Issuer, TILC, RIV 2013 and TRP Holdings will, or will permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Notes that have been reacquired by any of them.
(g) The Issuer, TILC, RIV 2013 or TRP Holdings will pay all expenses incidental to the performance of their respective obligations under this Agreement, including but not limited to: (i) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Notes, the preparation and printing of this Agreement, the Offered Notes, the documents comprising any part of the Offering Document, each Limited Use Issuer Free Writing Communication and any other
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document relating to the issuance, offer, sale and delivery of the Offered Notes; (ii) the cost of any advertising approved by the Issuer, TILC, RIV 2013 or TRP Holdings in connection with the issue of the Offered Notes; (iii) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Notes for sale under the laws of such jurisdictions in the United States as the Initial Purchasers designate and the printing of memoranda relating thereto; (iv) any fees charged by the Hired NRSROs for the rating of the Offered Notes and charged by the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture; and (v) expenses incurred in distributing the documents comprising any part of the Offering Document (including any amendments and supplements thereto) and any Limited Use Issuer Free Writing Communications to the Initial Purchasers or to prospective purchasers of the Offered Notes. The Issuer, TILC, RIV 2013 and TRP Holdings jointly and severally will also pay or reimburse the Initial Purchasers (to the extent incurred by them) for all travel expenses of the Initial Purchasers’, the Issuer’s, TILC’s, RIV 2013’s, TRP Holdings’ officers and employees and any other expenses of the Initial Purchasers, the Issuer, TILC, RIV 2013 or TRP Holdings in connection with attending or hosting meetings with prospective purchasers of the Offered Notes from the Initial Purchasers. In addition to the foregoing, but without duplication, the Issuer, TILC, RIV 2013 or TRP Holdings will pay to each Initial Purchaser on the Closing Date the amounts in respect of its costs and expenses as set forth in the applicable Engagement Letter as reimbursement of such Initial Purchaser’s other expenses, including fees and disbursements of legal counsel retained by the Initial Purchasers consistent with prior approvals of TILC.
(h) In connection with the offering and the sale of the Offered Notes, until the Initial Purchasers shall have notified the Issuer, TILC and the other Initial Purchasers of the completion of the resale of the Offered Notes, none of the Issuer, TILC, RIV 2013, TRP Holdings or any of their respective affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Notes or attempt to induce any person to purchase any Offered Notes; and none of the Issuer, TILC, RIV 2013, TRP Holdings or any of their respective affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Notes.
(i) For a period of 90 days, with respect to the Issuer, and 45 days, with respect to TRP Holdings, after the date of the Offering Circular, neither the Issuer nor TRP Holdings will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any United States dollar‑denominated asset‑backed debt securities issued, sponsored or guaranteed by the Issuer, TRP Holdings or any of their respective affiliates and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Initial Purchasers. Neither the Issuer nor TRP Holdings will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Notes.
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(j) The Issuer, TILC, RIV 2013 and TRP Holdings or any of their respective affiliates, or any person acting on its or their behalf (other than the Initial Purchasers, as to which no agreement is being made pursuant to this clause (j)), shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security that would be integrated with the offer or sale of the Offered Notes in a manner that would require the registration under the Securities Act of the sale of the Offered Notes or that would be integrated with the offer or sale of the Offered Notes for purposes of the rules and regulations of any trading market.
(k) The Issuer, TILC, RIV 2013 and TRP Holdings (the “Indemnitors”) jointly and severally will indemnify and hold harmless the Initial Purchasers against any documentary, stamp or similar issuance tax, including any interest and penalties, on the creation and issuance of the Offered Notes, and on the sale of the Offered Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer, TILC, RIV 2013 or TRP Holdings under this Agreement shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Issuer, TILC, RIV 2013 or TRP Holdings is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer, TILC, RIV 2013 or TRP Holdings, as applicable, shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made; provided that the Indemnitors will not be required to indemnify or gross‑up for such taxes and withholdings to the extent imposed as a result of a failure of such Initial Purchaser to provide any duly executed and completed form or document described in the last sentence of this paragraph upon the execution of this Agreement or to be delivered thereafter upon the reasonable request of its Indemnitors which evidences such Initial Purchaser’s entitlement to a complete exemption for such taxes and withholdings. Furthermore, the Indemnitors hereby request that each Initial Purchaser hereby provides to them IRS Form W‑9 or IRS Form W‑8BEN, W‑8BEN‑E, W‑8IMY or W‑8ECI, whichever is applicable, to the extent not already provided.
(l) To the extent, if any, that the rating provided with respect to the Offered Notes by the Hired NRSROs is conditional upon the furnishing of documents or the taking of any other action on or prior to the Closing Date by the Issuer, TILC, RIV 2013 or TRP Holdings, the Issuer, TILC, RIV 2013 or TRP Holdings, as the case may be, shall use its reasonable best efforts to promptly furnish such documents and take any other such action on or prior to the Closing Date.
(m) The cash proceeds of the Offered Notes, together with the proceeds of issuance of the Class E Certificates and the amount of any necessary capital contribution made by TRP Holdings to the Issuer, will be used by the Issuer as follows: (i) to add funds to the Collections Account in connection with the issuance of the Securities, if necessary to assure sufficient funds are available for payments on the first Payment Date; (ii) to pay certain costs of issuance; and (iii) to optionally redeem in full the Existing Notes issued by it by effecting a repayment of the outstanding principal amount thereof, together with any accrued and unpaid interest due thereon.
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(n) The Issuer will comply with the representation made by the Issuer to each Hired NRSRO pursuant to paragraph (a)(3)(iii) of Rule 17g‑5.
6. Free Writing Communications. (a) Each of the Issuer, TILC, RIV 2013 and TRP Holdings, jointly and severally, represents and agrees that, without the prior consent of the Initial Purchasers, and each Initial Purchaser severally represents and agrees that, without the prior consent of TILC and the Initial Purchasers, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Communication. Any such Issuer Free Writing Communication consented to by TILC and the Initial Purchasers is hereinafter referred to as a “Permitted Free Writing Communication.” The parties hereto agree that the Issuer Free Writing Communications listed on Schedules B and C hereto are each Permitted Free Writing Communications.
(b) To the extent it would be an Issuer Free Writing Communication, each of the Issuer, TILC, RIV 2013 and TRP Holdings consents to the use by the Initial Purchaser of a Free Writing Communication that (a) contains only information describing the preliminary or final terms of the Offered Notes or the offering thereof, and (b) does not contain any material information about the Issuer, TILC, RIV 2013 or TRP Holdings or the securities of any of them that was provided by any of the Issuer and TILC or on behalf of any of them. Any such Free Writing Communication is a Permitted Free Writing Communication for purposes of this Agreement.
7. Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer, TILC, RIV 2013 and TRP Holdings, to the accuracy of the statements of officers of the Issuer, TILC, RIV 2013 and TRP Holdings made pursuant to the provisions hereof, to the performance by each of the Issuer, TILC, RIV 2013 and TRP Holdings of its obligations hereunder and to the following additional conditions precedent on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received from a third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer, TILC, RIV 2013 or TRP Holdings and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC, RIV 2013 or TRP Holdings by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC, RIV 2013 or TRP Holdings (other than an announcement with positive implications of a
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possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer, TILC, RIV 2013 or TRP Holdings has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions (including, but not limited to, as the result of the outbreak or increase in severity of any pandemic) or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer, TILC, RIV 2013 or TRP Holdings or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) Vedder Price P.C., counsel for the Issuer, (ii) the Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
i. The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information;
ii. TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
iii. RIV 2013 has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; RIV 2013 is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease
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of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
iv. TRP Holdings has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TRP Holdings is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
v. The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer, TILC, RIV 2013 or TRP Holdings, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer, TILC, RIV 2013 or TRP Holdings, as applicable, enforceable against the Issuer, TILC, RIV 2013 or TRP Holdings, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
vi. The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
vii. The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “Volcker Rule”;
viii. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance of the Offered Notes or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
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ix. There are no pending actions, suits or proceedings against or affecting the Issuer, TILC, RIV 2013, TRP Holdings or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC, RIV 2013, TRP Holdings or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer, TILC, RIV 2013 or TRP Holdings to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
x. The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer, TILC, RIV 2013 or TRP Holdings is a party, and this Agreement and the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, RIV 2013, TRP Holdings, or any of their properties, or any agreement or instrument to which the Issuer, TILC, RIV 2013 or TRP Holdings is a party or by which the Issuer, TILC, RIV 2013 or TRP Holdings is bound or to which any of the properties of the Issuer, TILC, RIV 2013 or TRP Holdings is subject, or the organizational or formation documents of the Issuer, TILC, RIV 2013 or TRP Holdings, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
xi. Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
xii. This Agreement has been duly authorized, executed and delivered by each of the Issuer, TILC, RIV 2013 and TRP Holdings;
xiii. It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
xiv. The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”,
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“The Leases”, “TRP Holdings and RIV 2013”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of the Hedge Agreements”, “Description of the Liquidity Facility” and “Description of the Offered Notes and the Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized;
xv. The statements contained in the Preliminary Offering Circular and the Offering Circular under the captions “Certain Considerations for ERISA and Other Benefit Plans” and “Certain United States Federal Income Tax Considerations”, to the extent that they constitute matters of federal law or legal conclusions with respect thereto, while not purporting to discuss all possible consequences of investment in the Offered Notes, are correct in all material respects with respect to those consequences or matters that are discussed therein; and
xvi. In a properly presented and decided case, in the event TRP Holdings or RIV 2013 became a debtor in a voluntary or involuntary bankruptcy case under the Bankruptcy Code, the bankruptcy court would not substantially consolidate the assets and liabilities of the Issuer with those of TRP Holdings or RIV 2013.
(d) The Initial Purchasers shall have received from Mayer Brown LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the Final Offering Document and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Notes to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Initial Purchasers shall have received the opinion or opinions of Chapman and Cutler LLP, special counsel to the Trustee, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(f) The Initial Purchasers shall have received the opinion of Alvord and Alvord PLLC, special STB counsel, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received the opinion of Fasken LLP, special Canadian counsel, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(h) The Initial Purchasers shall have received a copy of each opinion provided to the Hired NRSROs in connection with its rating of the Offered Notes, each of which shall state therein that the Initial Purchasers may rely thereon, in form and substance reasonably satisfactory to the Initial Purchasers.
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(i) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President or a principal financial or accounting officer of each of the Issuer, TILC, RIV 2013 and TRP Holdings (it being understood that a certificate of TILC, as agent of RIV 2013, certifying for itself and in its capacity as sole equity member and manager of the Issuer and TRP Holdings shall be sufficient for purposes of the compliance by the Issuer, RIV 2013 and TRP Holdings with this requirement) in which such officer, to the best of such officer’s knowledge, after reasonable investigation, shall state that (i) the representations and warranties of the Issuer, TILC, RIV 2013 and TRP Holdings, as the case may be, in this Agreement are true and correct, that each of the Issuer, TILC, RIV 2013 and TRP Holdings has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements of each of the Issuer, TILC, RIV 2013 and TRP Holdings, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of each of the Issuer, TILC, RIV 2013 and TRP Holdings and its subsidiaries taken as a whole except as described in such certificate, (ii) nothing has come to such officer’s attention that would lead such officer to conclude that the General Disclosure Package included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, under the circumstances in which they were made, not misleading and (iii) since the date of the Offering Circular there shall not have been any change in the capital stock of TILC, RIV 2013 or TRP Holdings or the membership interests of the Issuer, or the long term debt of the Issuer, TILC, RIV 2013 or TRP Holdings except as described in such certificate.
(j) On or before the Closing Date, this Agreement, the Offering Document and each Transaction Document shall be satisfactory in form and substance to the Initial Purchasers, shall have been duly executed and delivered by the parties thereto (except that the execution and delivery of the documents referred to above (other than this Agreement) by a party hereto or thereto shall not be a condition precedent to such party’s obligations hereunder), shall each be in full force and effect and executed counterparts of each shall have been delivered to the Initial Purchasers or its counsel on or before the Closing Date.
(k) Each of TILC, RIV 2013, TRP Holdings and the Issuer shall have delivered to the Initial Purchasers a certificate (it being understood that a certificate of TRP Holdings in its capacity as sole equity member and manager of the Issuer shall be sufficient for purposes of the Issuer’s compliance with this requirement), dated the Closing Date, of its secretary or other duly elected, qualified and acting officer certifying its certificate of incorporation, limited liability company agreement, bylaws or other organizational documents; board or similar resolutions authorizing the execution, delivery and performance of the Transaction Documents to which it is a party, as applicable; and the incumbency of all officers that signed any of the Transaction Documents.
(l) The Initial Purchasers shall have received a certificate from a nationally recognized insurance broker with respect to the public liability insurance required by Section 5.04(f) of the Indenture.
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(m) Any Transaction Documents which are required to be executed on or prior to the Closing Date that have not been executed by the date of this Agreement will be subject to a condition precedent that requires such agreements to be in form and substance satisfactory to the Initial Purchasers.
(n) (i) The Hired NRSROs shall have delivered to the Issuer, TILC, RIV 2013, TRP Holdings and the Initial Purchasers a final rating letter setting forth a rating with respect to the Class A Notes of at least “A (sf)” and the Class B Notes of at least “BBB (sf)” and (ii) subsequent to the execution and delivery of this Agreement the Hired NRSROs shall not have announced in writing (which shall include, without limitation, any press release by such organization) that it has under surveillance or review its rating of any of the Offered Notes (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating).
(o) On or prior to the Closing Date, DTC shall have approved as to form the “Regulation S Temporary Global Note” and the “144A Book‑Entry Note” as those terms are defined in the Indenture.
(p) On or before the Closing Date the Issuer shall have caused the Indenture (or memorandum thereof) delivered at the Closing Date, to be duly filed, recorded and deposited with the Surface Transportation Board of the United States of America in conformity with 49 U.S.C. §11301 and with the Registrar General of Canada pursuant to Section 90 of the Railway Act of Canada, and the Issuer shall furnish the Initial Purchasers with proof thereof.
Documents described as being “in the agreed form” are documents which are in the form reasonably satisfactory to the Initial Purchasers and Mayer Brown LLP.
The Issuer, TILC, RIV 2013 and TRP Holdings will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers reasonably request.
8. Indemnification and Contribution. (a) The Issuer, TILC, RIV 2013 and TRP Holdings will jointly and severally indemnify and hold harmless (i) each Initial Purchaser and (ii) its respective officers, partners, members, directors, employees and affiliates and each person, if any, who controls such Initial Purchaser, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (the “Initial Purchaser Representatives”), against any losses, claims, damages, liabilities or expenses, joint or several, to which such Initial Purchaser or the Initial Purchaser Representatives may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) relate to, arise out of or are based upon (1) any breach of any of the representations, warranties and covenants of the Issuer, TILC, RIV 2013 or TRP Holdings contained herein, (2) any untrue statement or alleged untrue statement of any material fact contained in any document comprising a part of the Offering Document, any Limited Use Issuer Free Writing Communication or any amendment or supplement thereto, or any Additional Issuer Information or (3) any omission or alleged omission to state, in any document comprising a part of the Offering Documents, any Limited Use Issuer Free Writing Communication, or any amendment of or supplement thereto, or any
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Additional Issuer Information, a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, including, without limitation, any losses, claims, damages, liabilities or expenses arising out of or based upon the Issuer’s, TILC’s, RIV 2013’s or TRP Holdings’ failure to perform its obligations under Section 5 of this Agreement, and will reimburse each Initial Purchaser and the Initial Purchaser Representatives for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action as such expenses are incurred; provided, however, that neither the Issuer, TILC, RIV 2013 nor TRP Holdings will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Issuer, TILC, RIV 2013 or TRP Holdings by such Initial Purchaser specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) below.
(b) Each Initial Purchaser severally and not jointly will indemnify and hold harmless (i) the Issuer, TILC, RIV 2013 and TRP Holdings and (ii) their respective directors and officers and each person, if any, who controls the Issuer, TILC, RIV 2013 or TRP Holdings within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (the “Seller Representatives”), against any losses, claims, damages, liabilities or expenses to which the Issuer, TILC, RIV 2013, TRP Holdings or the Seller Representatives may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any document comprising a part of the Offering Document, any Limited Use Issuer Free Writing Communication or any amendment or supplement thereto, or any related preliminary offering circular, or arise out of or are based upon the omission or the alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Issuer, TILC, RIV 2013 or TRP Holdings by the Initial Purchasers specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Issuer, TILC, RIV 2013, TRP Holdings or the Seller Representatives in connection with investigating or defending any such loss, claim, damage, liability, expense or action as such expenses are incurred, it being understood and agreed that the only such information furnished by the Initial Purchasers consists of the information in the Offering Document as highlighted in the excerpt from the Offering Document set forth on Schedule E hereto; provided, however, that the Initial Purchasers shall not be liable for any losses, claims, damages, liabilities or expenses arising out of or based upon the Issuer’s, TILC’s, RIV 2013’s or TRP Holdings’ failure to perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b)
25

above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that differing interests may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties, and the indemnifying party will reimburse any legal expenses incurred by the indemnified party having separate counsel, as incurred. And after any such notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence, (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party or parties, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party. It is understood that all such fees and expenses of counsel for the indemnified party for which the indemnifying party is liable shall be reimbursed as they are incurred. Notwithstanding the foregoing, the indemnifying party shall have no right to retain counsel or otherwise participate in or assume the defense or settlement of any such action brought by a governmental agency, regulatory authority or self-regulatory organization having or claiming to have jurisdiction over the business or financial affairs of the relevant indemnified party or any of its affiliates. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which will not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which such indemnified party is or could have been a party and indemnity could have been sought hereunder by
26

such indemnified party unless such settlement includes (i) an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer, TILC, RIV 2013 and TRP Holdings on the one hand and the Initial Purchasers on the other from the offering of the Offered Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Issuer, TILC, RIV 2013 and TRP Holdings on the one hand and the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations. The relative benefits received by the Issuer, TILC, RIV 2013 and TRP Holdings on the one hand and the Initial Purchasers on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Issuer bear to the total discounts, commissions and fees received by the Initial Purchasers from the Issuer under this Agreement. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer, TILC, RIV 2013, TRP Holdings or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Initial Purchaser shall be required to contribute any amount in excess of the total discounts, commissions and fees received by such Initial Purchaser from the Issuer and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Initial Purchasers in this subsection (d) to contribute are several in proportion to their respective purchase obligations and not joint.
(e) The obligations of the Issuer, TILC, RIV 2013 and TRP Holdings under this Section shall be in addition to any liability which the Issuer, TILC, RIV 2013 and TRP Holdings may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Initial Purchaser within the meaning of the Securities Act or the Exchange Act; and the obligations of each Initial Purchaser under this Section shall be in addition to any liability which it may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls
27

the Issuer, TILC, RIV 2013 and TRP Holdings within the meaning of the Securities Act or the Exchange Act.
9. Default of Initial Purchasers, Special Resolution Regime.
(a) If any one or more Initial Purchasers shall fail to purchase and pay for the Offered Notes agreed to be purchased by such Initial Purchasers (the “Defaulting Initial Purchasers”) hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the non‑Defaulting Initial Purchasers (the “Non‑Defaulting Initial Purchasers”) may make arrangements satisfactory to the Issuer for the purchase of the Offered Notes by other persons, including any of the Non‑Defaulting Initial Purchasers, but if no such arrangements are made by the Closing Date, the Non‑Defaulting Initial Purchasers shall be obligated severally and not jointly to take up and pay for (in the respective proportions that the amount of Offered Notes set forth opposite their names in Schedule A bears to the aggregate amount of Offered Notes set forth opposite the names of all the Non‑Defaulting Initial Purchasers) the Offered Notes which the Defaulting Initial Purchasers agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Offered Notes which the Defaulting Initial Purchasers agreed but failed to purchase shall exceed 10% of the aggregate amount of the Offered Notes set forth in Schedule A, the Non‑Defaulting Initial Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Offered Notes. If the Non‑Defaulting Initial Purchasers do not purchase all the Offered Notes, this Agreement will terminate without liability on the part of any Non‑Defaulting Initial Purchaser, the Issuer, TILC, RIV 2013 or TRP Holdings, except as provided in Section 10. As used in this Agreement, the term “Initial Purchaser” includes any person substituted for an Initial Purchaser under this Section. Nothing herein will relieve any Defaulting Initial Purchaser from liability for its default.
(b) In the event that any Initial Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Initial Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. In the event that any Initial Purchaser that is a Covered Entity or a BHC Act Affiliate of such Initial Purchaser becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Initial Purchaser are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 9(b):
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
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(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Issuer, TILC, RIV 2013 or TRP Holdings or their respective officers and of the Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Initial Purchasers, the Issuer, TILC, RIV 2013 or TRP Holdings, or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Notes. If this Agreement is terminated pursuant to Section 9 or if for any reason the purchase of the Offered Notes by the Initial Purchasers is not consummated, the Issuer, TRP Holdings, RIV 2013 and TILC shall remain responsible for the expenses to be paid or reimbursed by them pursuant to Section 5 and the respective obligations of the Issuer, TRP Holdings, RIV 2013, TILC and the Initial Purchasers pursuant to Section 8 shall remain in effect. Further, if the purchase of the Offered Notes by the Initial Purchasers is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9, the Issuer or TRP Holdings will reimburse each Initial Purchaser for all out‑of‑pocket expenses (including fees and disbursements of counsel) reasonably incurred by it in connection with the offering of the Offered Notes.
11. Notices. All communications hereunder will be in writing and, if sent to the Initial Purchasers will be mailed, delivered or telegraphed and confirmed to each of the Initial Purchasers at its respective address below:

Credit Suisse Securities (USA) LLC Eleven Madison Avenue
New York, NY 10010 		Wells Fargo Securities LLC
550 S. Tryon Street
Charlotte, NC 28202
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, NY 10019 		Deutsche Bank Securities Inc.
60 Wall Street, 5th Floor
New York, New York 10005
29

BofA Securities, Inc.
One Bryant Park, 11th Floor
New York, NY 10036
Fifth Third Securities, Inc.
38 Fountain Square Plaza
Cincinnati, Ohio 45263
If sent to the Issuer, TILC, RIV 2013 or TRP Holdings, as the case may be, will be mailed, delivered or emailed and confirmed to such party at the following address:
c/o Trinity Industries Leasing Company 14221 N. Dallas Parkway, Suite 1100 Dallas, TX 75254 Attention: TILC Capital Markets Group Re: TRP 2021 LLC Email: TILC.CapitalMarkets.notices@trin.net
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder, except that holders of Offered Notes shall be entitled to enforce the agreements for their benefit contained in the second and third sentences of Section 5(b) hereof against the Issuer as if such holders were parties thereto.
13. Counterparts. This Agreement may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same Agreement and any party may enter into this Agreement by executing a counterpart. Delivery by facsimile or other electronic transmission of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart hereof.
14. Absence of Fiduciary Relationship. Each of the Issuer, TILC, RIV 2013 and TRP Holdings acknowledges and agrees that:
(a) Each Initial Purchaser has been retained solely to act as an initial purchaser in connection with the initial purchase, offering and resale of the Offered Notes, and no Initial Purchaser shall be liable to the Issuer, TILC, RIV 2013 or TRP Holdings for any losses, claims, damages or other liabilities with respect to any other Notes or Certificates (as defined in the Master Indenture), and that no fiduciary, advisory or agency relationship between any of the Issuer, TILC, RIV 2013 or TRP Holdings or their respective affiliates, stockholders, creditors or employees, on the one hand, and such Initial Purchaser, on the other hand, has been created in respect of any of the transactions contemplated by this Agreement or the Offering Document, irrespective of whether such Initial Purchaser has advised or is advising the Issuer, TILC, RIV 2013 or TRP Holdings on other matters;
(b) the purchase and sale of the Offered Notes pursuant to this Agreement, including the determination of the offering price of the Offered Notes and any related discount and commissions, is an arm’s‑length commercial transaction among the Initial Purchasers, the Issuer, TILC, RIV 2013 and TRP Holdings, and the Issuer, TILC, RIV 2013 and TRP Holdings are capable of evaluating and understanding, and do understand and hereby accept, the terms, risks and conditions of the transactions contemplated by this Agreement;
30

(c) the Issuer, TILC, RIV 2013 and TRP Holdings have been advised that the Initial Purchasers and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Issuer, TILC, RIV 2013 and TRP Holdings and the Initial Purchasers have no obligation to disclose such interests and transactions to any of the Issuer, TILC, RIV 2013 or TRP Holdings by virtue of any fiduciary, advisory or agency relationship; and
(d) each of the Issuer, TILC, RIV 2013 or TRP Holdings waives, to the fullest extent permitted by law, any claims it may have against any Initial Purchaser for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that no Initial Purchaser shall have any liability (whether direct or indirect) to any of the Issuer, TILC, RIV 2013 or TRP Holdings in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of any of the Issuer, TILC, RIV 2013 or TRP Holdings, including stockholders, employees or creditors of the Issuer, TILC, RIV 2013 or TRP Holdings.
15. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the state of New York without regard to principles of conflicts of laws (other than Section 5‑1401 of the New York General Obligations Law).
Each of the Issuer, TILC, RIV 2013 and TRP Holdings hereby submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States of America for the Southern District of New York, in each case sitting in the Borough of Manhattan in The City of New York and appellate courts from any thereof in any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, THE OFFERED NOTES OR ANY OF THE OTHER OPERATIVE AGREEMENTS, WHICH WAIVER IS INFORMED AND VOLUNTARY.
16. No Petition in Bankruptcy. Each Initial Purchaser agrees that, prior to the date which is one year and one day after the payment in full of all outstanding Offered Notes, such Initial Purchaser will not institute against, or join any other Person in instituting against, the Issuer an action in bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceeding under the laws of the United States or any state of the United States.
17. Integration. As to the matters set forth in this Agreement, so long as this Agreement is in full force and effect, the provisions herein shall supersede any and all prior agreements as to such subject matter, except any Engagement Letter and any other fee arrangement entered into between any Initial Purchaser, the Issuer, TILC, RIV 2013 and TRP Holdings.
18. Amendments. This Agreement may not be amended, waived, discharged or terminated unless such amendment, waiver, discharge or termination is in writing and signed by each of the parties hereto.
19. Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, such provision shall be fully severable and this Agreement shall be
31

construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement, unless such continued effectiveness of this Agreement, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.
20. USA Patriot Act. Each of the Issuer, TILC, RIV 2013 and TRP Holdings acknowledges that the Initial Purchasers are required by U.S. Federal law, in an effort to help fight the funding of terrorism and money laundering activities, to obtain, verify and record information that identifies each person or corporation who opens an account or enters into a business relationship with a financial institution.
21. Titles. CS is hereby designated as Sole Structuring Agent, CS and Wells Fargo Securities LLC are hereby designated as Lead Bookrunners, DB and CA are hereby designated as Joint Bookrunners, CA is hereby designated as Green Advisor, and BofA and Fifth Third are hereby designated as Co‑Managers.

[Signature pages follow]



32

If the foregoing is in accordance with the Initial Purchasers’ understanding of our agreement, kindly sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement between the Issuer, TILC, RIV 2013, TRP Holdings and the Initial Purchaser in accordance with its terms.


Very truly yours,
TRINITY RAIL LEASING 2012 LLC,

By: TRP 2021 RAILCAR HOLDINGS LLC, as sole equity member and manage

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director


TRINITY INDUSTRIES LEASING COMPANY

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director

RIV 2013 RAIL HOLDINGS LLC

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director

TRP 2021 RAILCAR HOLDINGS LLC

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director




The foregoing Agreement is hereby confirmed and accepted as of the date first above written.


CREDIT SUISSE SECURITIES (USA) LLC



By: /s/ Shailesh S. Deshpande
Name: Shailesh S. Deshpande
Title: MD






WELLS FARGO SECURITIES LLC



By: /s/ John Fulvimar
Name: John Fulvimar
Title: Director






CREDIT AGRICOLE SECURITIES (USA) INC.



By: /s/ Michael Regan
Name: Michael Regan
Title: Managing Director







DEUTSCHE BANK SECURITIES INC.



By: /s/ Kevin Fagan
Name: Kevin Fagan
Title: Director

By: /s/ Daniel Gerber
Name: Daniel Gerber
Title: Managing Director







BOFA SECURITIES, INC.



By: /s/ Bradley Sohl
Name: Bradley Sohl
Title: Director







FIFTH THIRD SECURITIES, INC.



By: /s/ Ricardo Valeriano
Name: Ricardo Valeriano
Title: Managing Director





Exhibit 10.2.1
EXECUTION VERSION
MASTER INDENTURE
dated as of June 15, 2021



by and between



TRP 2021 LLC,
a Delaware limited liability company,
as the Issuer,


and



U.S. BANK NATIONAL ASSOCIATION,
a national banking association,
as Indenture Trustee


TABLE OF CONTENTS
Page
GRANTING CLAUSES................................................................................................................ 1

ARTICLE 1 DEFINITIONS.................................................................................................. 8
Section 1.01        Definitions..................................................................................... 8
Section 1.02        Rules of Construction...........................…..................................... 8
Section 1.03        Compliance Certificates and Opinions.......................................... 9
Section 1.04        Acts of Holders............................................................................ 10

ARTICLE 2 THE SECURITIES.......................................................................................... 11
Section 2.01    Authorization, Issuance and Authentication of the Securities; Amount of Outstanding Principal Balance; Terms; Form; Execution and Delivery................................................................................. 11
Section 2.02        Restrictive Legends..................................................................... 15
Section 2.03        Securities Registrar and Paying Agents...................................... 20
Section 2.04        Paying Agent to Hold Money in Trust.......................................... 22
Section 2.05        Method of Payment..................................................................... 22
Section 2.06        Minimum Denomination.............................................................. 23
Section 2.07        Exchange Option for Notes......................................................... 23
Section 2.08        Mutilated, Destroyed, Lost or Stolen Securities.......................... 25
Section 2.09        Payments of Transfer Taxes........................................................ 25
Section 2.10        Book-Entry Registration............................................................…25
Section 2.11        Special Transfer Provisions......................................................... 27
Section 2.12        Temporary Definitive Securities................................................... 31
Section 2.13        Statements to Holders................................................................. 31
Section 2.14        CUSIP, CINS and ISIN Numbers................................................. 33
Section 2.15        Tax Treatment of the Securities................................................... 33
Section 2.16        Compliance with Withholding Requirements............................... 33
Section 2.17        Limitation on Transfers................................................................ 33
Section 2.18        Holder Tax Identification Information........................................... 36
Section 2.19        Later Sold Notes.......................................................................... 36

ARTICLE 3 INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS................................ 37
Section 3.01        Establishment of Indenture Accounts; Investments..................... 37
Section 3.02        Collections Account..................................................................... 40
Section 3.03        Withdrawal upon an Event of Default.......................................... 41
Section 3.04        Liquidity Reserve Account; Liquidity Facilities............................. 41
Section 3.05        Optional Reinvestment Account.................................................. 43
Section 3.06        Expense Account......................................................................... 44
Section 3.07        Series Accounts........................................................................... 44
Section 3.08        Redemption/Defeasance Account............................................... 44
Section 3.09        [Reserved.].................................................................................. 45
Section 3.10        Calculations................................................................................. 45
Section 3.11        Payment Date Distributions from the Collections Account.......... 48
Section 3.12        Optional Redemptions................................................................. 58
Section 3.13        Procedure for Redemptions......................................................... 59
Section 3.14        Adjustments in Targeted Principal Balances............................… 61
Section 3.15        Liquidity Facilities........................................................................ 62
Section 3.16        Hedge Agreements...................................................................... 63
i

TABLE OF CONTENTS
(continued)
Page
Section 3.17        Capital Contributions to Indenture Accounts and/or Portfolio...... 65

ARTICLE 4 DEFAULT AND REMEDIES........................................................................... 65
Section 4.01        Events of Default......................................................................... 65
Section 4.02        Remedies Upon Event of Default................................................ 68
Section 4.03        Limitation on Suits....................................................................... 71
Section 4.04        Waiver of Existing Defaults.......................................................... 71
Section 4.05        Restoration of Rights and Remedies........................................... 72
Section 4.06        Remedies Cumulative..............................................................… 72
Section 4.07        Authority of Courts Not Required................................................. 72
Section 4.08        Rights of Holders to Receive Payment........................................ 73
Section 4.09        Indenture Trustee May File Proofs of Claim................................ 73
Section 4.10        Undertaking for Costs.................................................................. 73
Section 4.11        Purchase Right of Class B Holders............................................. 73
Section 4.12        Purchase Right of Class C Holders............................................. 74
Section 4.13        Purchase Rights of the Holder of the Class E Certificates.......... 75

ARTICLE 5 REPRESENTATIONS, WARRANTIES AND COVENANTS........................... 76
Section 5.01        Representations and Warranties................................................. 76
Section 5.02        General Covenants...................................................................... 81
Section 5.03        Portfolio Covenants..................................................................... 88
Section 5.04        Operating Covenants................................................................... 92

ARTICLE 6 THE INDENTURE TRUSTEE....................................................................... 101
Section 6.01        Acceptance of Trusts and Duties............................................... 101
Section 6.02        Absence of Duties..................................................................... 101
Section 6.03        Representations or Warranties.................................................. 101
Section 6.04        Reliance; Agents; Advice of Counsel......................................... 102
Section 6.05        Not Acting in Individual Capacity................................................ 105
Section 6.06        No Compensation from Holders................................................ 105
Section 6.07    Notice of Defaults; Communications During Continuance of Event of Default................................................................................... 105
Section 6.08        Indenture Trustee May Hold Securities..................................... 105
Section 6.09        Corporate Trustee Required; Eligibility...................................... 106
Section 6.10        Reports by the Issuer................................................................. 106
Section 6.11        Compensation........................................................................… 106
Section 6.12        Certain Rights of the Requisite Majority..................................... 106
Section 6.13        Lessee Contact.......................................................................... 106

ARTICLE 7 SUCCESSOR TRUSTEES........................................................................... 107
Section 7.01        Resignation and Removal of Indenture Trustee........................ 107
Section 7.02        Appointment of Successor......................................................... 107

ARTICLE 8 INDEMNITY.................................................................................................. 108
Section 8.01        Indemnity................................................................................... 108
Section 8.02        Holders’ Indemnity..................................................................... 109
Section 8.03        Survival...................................................................................... 109

ii

TABLE OF CONTENTS
(continued)
Page
ARTICLE 9 SUPPLEMENTAL INDENTURES................................................................. 109
Section 9.01        Supplemental Indentures Without the Consent of the Holders.. 109
Section 9.02        Supplemental Indentures with the Consent of Holders.............. 110
Section 9.03        Execution of Indenture Supplements and Series Supplements. 112
Section 9.04        Effect of Indenture Supplements................................................ 112
Section 9.05        Reference in Securities to Supplements.................................... 112
Section 9.06        Issuance of Additional Series of Notes...................................... 112

ARTICLE 10 MODIFICATION AND WAIVER.................................................................... 114
Section 10.01        Modification and Waiver with Consent of Holders..................... 114
Section 10.02        Modification Without Consent of Holders................................... 115
Section 10.03    Consent of Servicer, Hedge Providers and Liquidity Facility Providers.................................................................................... 115
Section 10.04        Subordination and Priority of Payments..................................... 115
Section 10.05        Execution of Amendments by Indenture Trustee....................... 115

ARTICLE 11 SUBORDINATION......................................................................................... 116
Section 11.01        Subordination............................................................................. 116

ARTICLE 12 DISCHARGE OF INDENTURE; DEFEASANCE.......................................... 117
Section 12.01        Discharge of Liability on the Securities; Defeasance................. 117
Section 12.02        Conditions to Defeasance.......................................................... 118
Section 12.03        Application of Trust Money......................................................... 119
Section 12.04        Repayment to the Issuer............................................................ 119
Section 12.05    Indemnity for Government Obligations and Corporate Obligations ............................................................................… 120
Section 12.06        Reinstatement........................................................................... 120

ARTICLE 13 MISCELLANEOUS....................................................................................... 120
Section 13.01        Right of Indenture Trustee to Perform....................................... 120
Section 13.02        Waiver........................................................................................ 120
Section 13.03        Severability................................................................................ 121
Section 13.04        Notices....................................................................................... 121
Section 13.05        Assignments.............................................................................. 122
Section 13.06        Currency Conversion................................................................. 122
Section 13.07        Application to Court................................................................... 123
Section 13.08        Governing Law........................................................................... 123
Section 13.09        Jurisdiction................................................................................. 123
Section 13.10        Jury Trial.................................................................................... 124
Section 13.11        Counterparts; Electronic Signatures.......................................... 124
Section 13.12        No Petition in Bankruptcy........................................................... 125
Section 13.13        Table of Contents, Headings, Etc.............................................. 125



iii




Annex
Description
Annex A Defined Terms
Schedule Description
Schedule 1 Account Information
Exhibit Description
Exhibit A-1 Form of Certificate to be Given by Holders
Exhibit A-2 Form of Certificate to be Given by Euroclear or Clearstream
Exhibit A-3 Form of Certificate to Depository Regarding Interest
Exhibit A-4 Form of Depositary Certificate Regarding Interest
Exhibit A-5 Form of Transfer Certificate for Exchange or Transfer from 144A Book-Entry Note to Regulation S Book-Entry Note
Exhibit A-6 Form of Initial Purchaser Exchange Instructions
Exhibit A-7 Form of Certificate to be Given by Transferee of Beneficial Interest in a Regulation S Book-Entry Note
Exhibit A-8 Form of Transfer Certificate for Exchange or Transfer from Unrestricted Book-Entry Note to 144A Book-Entry Note
Exhibit B Form of Investment Letter to be Delivered in Connection with Transfers to Non-QIB Accredited Investors
Exhibit C-1 Form of Monthly Report
Exhibit C-2 Form of Annual Report
Exhibit D-1 Form of Full Service Freight Railcar Lease
Exhibit D-2 Form of Full Service Tank Railcar Lease
Exhibit E-1 Form of Net Freight Railcar Lease
Exhibit E-2 Form of Net Tank Railcar Lease

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This MASTER INDENTURE, dated as of June 15, 2021 (as modified, amended or supplemented from time to time by Indenture Supplements, this “Master Indenture”) is between TRP 2021 LLC (formerly known as Trinity Rail Leasing 2012 LLC), a Delaware limited liability company, as the issuer of the Notes hereunder (the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as indenture trustee for the Notes hereunder (the “Indenture Trustee”).
W I T N E S S E T H:
WHEREAS, the Issuer and the Indenture Trustee are executing and delivering this Master Indenture in order to provide for the issuance from time to time by the Issuer of Securities, including Notes and Class E Certificates, in one or more Series, the Principal Terms of which shall be specified in one or more Series Supplements to this Master Indenture; and
WHEREAS, except as otherwise provided herein, the obligations of the Issuer under the Securities issued pursuant to this Master Indenture and the other Secured Obligations shall be secured on a pari passu basis by the Collateral further granted and described below;
NOW THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
GRANTING CLAUSES
The Issuer hereby pledges, transfers, assigns, and otherwise conveys to the Indenture Trustee for the benefit and security of the Secured Parties, and grants to the Indenture Trustee for the benefit and security of the Secured Parties a security interest in and Encumbrance on, all of the Issuer’s right, title and interest, whether now existing or hereafter created or acquired and wherever located, in, to and under the assets and property described below (collectively, the “Collateral”):
(a)    each Issuer Document and the Certificate Purchase Agreement, in each case, as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”);
(b)    (i) all Railcars described on a schedule to a Series Supplement, together with all other Railcars conveyed to the Issuer from time to time, whether pursuant to an Asset Transfer Agreement or otherwise, and any and all substitutions and replacements therefor, (ii) all licenses, manufacturer’s warranties and other warranties, Supporting Obligations (including in respect of any related Lease), Payment Intangibles, Accounts, Instruments, Chattel Paper (including the Leases described on a schedule to a Series Supplement and any other related Leases of the Railcars and all related Lease Payments), General Intangibles and all other rights and obligations related to any such aforementioned Assigned Agreement, Railcars or Leases, including, without limitation, all rights, powers, privileges, options and other benefits of the Issuer to receive moneys and other property due and to become due under or pursuant to such Assigned Agreements, such Railcars or Leases, including, without limitation, all rights, powers, privileges, options and other benefits to receive and collect rental payments, income, revenues, profits and other amounts, payments, tenders or security (including any cash collateral) from any other party thereto (including, in the case of related Leases, from the


Lessees thereunder), (iii) all rights, powers, privileges, options and other benefits of the Issuer to receive proceeds of any casualty insurance, condemnation award, indemnity, warranty or guaranty with respect to such Assigned Agreements, Railcars or Leases, (iv) all claims of the Issuer for damages arising out of or for breach of or default under any Assigned Agreement or in respect of any related Lease, and (v) the rights, powers, privileges, options and other benefits of the Issuer to perform under each Assigned Agreement and related Lease, to compel performance and otherwise exercise all remedies thereunder and to terminate each Assigned Agreement and related Lease;
(c)    all (i) Railroad Mileage Credits allocable to such Railcars and any payments in respect of such credits, (ii) tort claims or any other claims of any kind or nature related to such Railcars and any payments in respect of such claims, (iii) SUBI Certificates evidencing a 100% special unit of beneficial interest in the Trinity Marks related to such Railcars and (iv) other payments owing by any Person (including any railroads or similar entities) in respect of or attributable to such Railcars or the use, loss, damage, casualty, condemnation of such Railcars or the Marks associated therewith, in each case whether arising by contract, operation of law, course of dealing, industry practice or otherwise;
(d)    all Indenture Accounts (other than Series Accounts and the Certificate Account) and any other deposit accounts and securities accounts established in connection with any Liquidity Facility Documents, and all the funds standing to the credit thereof, all Investment Property credited thereto (including, without limitation, all (i) securities, whether certificated or uncertificated, (ii) Security Entitlements, (iii) Securities Accounts, (iv) commodity contracts and (v) commodity accounts) in which the Issuer has now, or acquires from time to time hereafter, any right, title or interest in any manner, and the certificates or instruments, if any, representing or evidencing such Investment Property, and all dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Investment Property with respect thereto, including, without limitation, any Permitted Investments purchased with funds on deposit in any Indenture Accounts or in any other deposit accounts and securities accounts established in connection with any Liquidity Facility Documents, and all income from the investment of funds therein;
(e)    all insurance policies maintained by the Issuer or for its benefit (including, without limitation, all insurance policies maintained by the Servicer or the Insurance Manager for the benefit of the Issuer) covering all or any portion of the Collateral, and all payments thereon or with respect thereto;
(f)    all other Accounts, Chattel Paper, commercial tort claims (as defined in the UCC), documents (as defined in the UCC), equipment (as defined in the UCC), General Intangibles, Instruments, inventory (as defined in the UCC), letter-of-credit rights (as defined in the UCC), and Supporting Obligations; and
(g)    all Proceeds, accessions, profits, products, income benefits, substitutions and replacements, whether voluntary or involuntary, of and to any of the property of the Issuer described in the preceding clauses (including, without limitation, the Issuer’s claims for indemnity thereunder and payments with respect thereto).
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Such Security Interests are granted and subject to the terms and conditions of this Master Indenture as collateral security for the payment and performance in full by the Issuer of all Outstanding Obligations and for the prompt payment in full by the Issuer of the respective amounts due and the prompt performance in full by the Issuer of all of its other obligations, in each case, under this Master Indenture, the other Issuer Documents (except for any Liquidity Facility Documents that are identified in a Series Supplement as being excluded from the Secured Obligations) and the other Operative Agreements to which the Issuer is a party (collectively, the “Secured Obligations”), all as provided in this Master Indenture.
For the avoidance of doubt it is expressly understood and agreed that, to the extent the UCC is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties hereto desire that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision.
The Indenture Trustee acknowledges such Security Interests, accepts the duties created hereby in accordance with the provisions hereof and agrees to hold and administer all Collateral for the use and benefit of all present and future Secured Parties.
The Issuer hereby irrevocably authorizes the Indenture Trustee at any time, and from time to time, to file, without the signature of the Issuer, in any filing office in any UCC jurisdiction necessary or desirable to perfect the Security Interests granted herein, any initial financing statements, continuation statements and amendments thereto that (i) indicate or describe the Collateral regardless of whether any particular asset constituting Collateral falls within the scope of Article 9 of the UCC in the same manner as described herein or in any other manner as is necessary or desirable to ensure the perfection of the Security Interests granted herein, or (ii) provide any other information required by Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement, continuation statement or amendment, including whether the Issuer is an organization, the type of organization and any organization identification number issued to the Issuer. The Issuer agrees to furnish the information described in clause (ii) of the preceding sentence to the Indenture Trustee promptly upon the Indenture Trustee’s request. Nothing in the foregoing shall be deemed to create an obligation of the Indenture Trustee to file any financing statement, continuation statements or amendment thereto.
1.    Priority. The Issuer intends the Security Interests in favor of the Indenture Trustee to be prior to all other Encumbrances (other than Permitted Encumbrances) in respect of the Collateral, and the Issuer has taken and shall take or cause to be taken all actions necessary to obtain and maintain, in favor of the Indenture Trustee, for the benefit of the Secured Parties, a first priority, perfected security interest in the Collateral, to the extent that perfection can be achieved by the filing of a UCC-1 financing statement in any UCC jurisdiction and/or other similar filings with the STB, subject to Permitted Encumbrances. With respect to Leases related to Portfolio Railcars where the Lessee thereunder is a Canadian resident, the Issuer has taken and shall take or cause to be taken all actions necessary or advisable to obtain and maintain, in favor of the Indenture Trustee, a first priority, perfected security interest in the related Railcars including, without limitation, making all such filings, registrations and
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recordings with the Registrar General of Canada as are necessary or advisable to obtain and maintain a first priority, perfected security interest in such Railcars (subject to Permitted Encumbrances). Notwithstanding the foregoing, the Issuer shall not be required to make any filings, registrations or recordation in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada. The Indenture Trustee shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party under all applicable law in addition to, and not in limitation of, the other rights, remedies and recourses granted to the Indenture Trustee by this Master Indenture or any law relating to the creation and perfection of security interests in the Collateral.
2.    Continuance of Security.
(a)    Except as otherwise provided under “Releases” in subsection 4(e) below, the Security Interests created under this Master Indenture shall remain in force as continuing security to the Indenture Trustee, for the benefit of the Secured Parties, until the repayment and performance in full of all Secured Obligations, notwithstanding any intermediate payment or satisfaction of any part of the Secured Obligations or any settlement of account or any other act, event or matter whatsoever, and shall secure Secured Obligations, including, without limitation, the ultimate balance of the moneys and liabilities hereby secured.
(b)    No assurance, security or payment which may be avoided or adjusted under the law, including under any enactment relating to bankruptcy or insolvency, and no release, settlement or discharge given or made by the Indenture Trustee on the faith of any such assurance, security or payment, shall prejudice or affect the right of the Indenture Trustee to recover the Secured Obligations from the Issuer (including any moneys which it may be compelled to pay or refund under the provisions of any applicable insolvency legislation of any applicable jurisdiction and any costs payable by it pursuant to or otherwise incurred in connection therewith) or to enforce the Security Interests granted under this Master Indenture to the full extent of the Secured Obligations and accordingly, if any release, settlement or discharge is or has been given hereunder and there is subsequently any such avoidance or adjustment under the law, it is expressly acknowledged and agreed that such release, settlement or discharge shall be void and of no effect whatsoever.
(c)    If a Responsible Officer of the Indenture Trustee shall have received written notice from a Secured Party or the Issuer or Administrator that the Issuer may be insolvent pursuant to the provisions of any applicable insolvency legislation in any relevant jurisdiction as at the date of any payment made by the Issuer to the Indenture Trustee (provided that the Indenture Trustee shall have no duty to inquire or investigate and shall not be deemed to have knowledge of same absent written notice received by a Responsible Officer of the Indenture Trustee), the Indenture Trustee shall retain the Security Interests contained in or created pursuant to this Master Indenture until the expiration of a period of one month plus such statutory period within which any assurance, security, guarantee or payment can be avoided or invalidated after the payment and discharge in full of all Secured Obligations notwithstanding any release, settlement, discharge or arrangement which may be given or made by the Indenture Trustee on, or as a consequence of, such payment or discharge of liability.
3.    No Transfer of Duties. The Security Interests granted hereby are granted as security only and shall not (i) transfer or in any way affect or modify, or relieve the Issuer from,
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any obligation to perform or satisfy any term, covenant, condition or agreement to be performed or satisfied by the Issuer under or in connection with this Master Indenture or any Issuer Document or any Collateral or (ii) impose any obligation on any of the Secured Parties or the Indenture Trustee to perform or observe any such term, covenant, condition or agreement or impose any liability on any of the Secured Parties or the Indenture Trustee for any act or omission on the part of the Issuer relative thereto or for any breach of any representation or warranty on the part of the Issuer contained therein or made in connection therewith unless otherwise expressly provided therein.
4.    Collateral.
(a)    Generally. On each Closing Date, all Instruments, Chattel Paper, UCC Securities or other documents, including, without limitation, any SUBI Certificates, representing or evidencing Collateral (to the extent not held by the Servicer pursuant to the terms of the Servicing Agreement) shall be delivered to and held by or on behalf of the Indenture Trustee on behalf of the Secured Parties pursuant hereto all in form and substance reasonably necessary to protect the pledge of such Collateral. Subject to subsection (b) under this heading, until the termination of the Security Interest granted hereby, if the Issuer shall acquire (by purchase, contribution, substitution, replacement or otherwise) any additional Collateral evidenced by Instruments or Chattel Paper at any time or from time to time after the date hereof, the Issuer shall promptly pledge the Collateral so evidenced as security for the Secured Obligations with the Indenture Trustee and deliver same to the custodial possession of the Servicer in accordance with Section 5.04(v), and the Servicer shall accept under this Master Indenture such delivery.
(b)    Safekeeping. The Indenture Trustee agrees to maintain the Collateral received by it and all records and documents relating thereto at such address or addresses as may from time to time be specified by the Indenture Trustee in writing to each Secured Party and the Issuer. The Indenture Trustee shall keep all Collateral and related documentation in its possession separate and apart from all other property that it is holding in its possession and from its own general assets and shall maintain accurate records pertaining to the Permitted Investments and Indenture Accounts included in the Collateral in such a manner as shall enable the Indenture Trustee, the Secured Parties and the Issuer to verify the accuracy of such record keeping. The Indenture Trustee’s books and records shall at all times show that to the extent that any Collateral is held by the Indenture Trustee such Collateral shall be held as agent of and custodian for the Secured Parties and is not the property of the Indenture Trustee. The Indenture Trustee will promptly report to each Secured Party and the Issuer any failure on its part to hold the Collateral as provided in this subsection and will promptly take appropriate action to remedy any such failure.
(c)    Limitation on Non-Severable Mixed Riders. The percentage of Portfolio Railcars in the aggregate (measured by Adjusted Value) contained on Non-Severable Mixed Riders shall not exceed twenty percent (20%) of the Portfolio Railcars in the aggregate (measured by Adjusted Value).
(d)    Notifications. The Indenture Trustee at the expense of the Issuer shall promptly forward to the Issuer and the Servicer a copy of each notice, request, report, or other document relating to any Issuer Document included in the Collateral that is received by a
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Responsible Officer of the Indenture Trustee from any Person other than the Issuer or the Servicer on and after the Closing Date.
(e)    Releases. If at any time all or any part of the Collateral is to be sold, transferred, assigned or otherwise disposed of by the Issuer or the Indenture Trustee or any Person on its or their behalf (but in any such case only as required or permitted by the Operative Agreements), the Indenture Trustee agrees, upon receipt of written notice from the Issuer or the Administrator, which notice shall be delivered at least five (5) Business Days prior to such sale, transfer, assignment or disposal, on or prior to the date of such sale, transfer, assignment or disposal (but not to be effective until the date of such sale, transfer, assignment or disposal) (or, in the case of a Lessee’s exercise of a purchase option, on, immediately prior to or after the date of such purchase, as may be requested by the Issuer or the Administrator), at the expense of the Issuer, to execute such instruments of release prepared by the Issuer or the Administrator, in recordable form, if necessary, in favor of the Issuer or any other Person as the Issuer or the Administrator may reasonably request, deliver the relevant part of the Collateral in its possession to the Issuer, otherwise release the Security Interest evidenced by this Master Indenture on such Collateral and release and deliver such Collateral to the Issuer and issue confirmation, to the relevant purchaser, transferee, assignee, insurer, and such other Persons as the Issuer may direct in writing, upon being requested to do so by the Issuer, that the relevant Collateral is no longer subject to the Security Interests. Any such release to the Issuer shall be deemed to release or reassign as appropriate in respect of the Collateral such grants and assignments arising hereunder.
At the written request of the Issuer, upon the payment in full of all Secured Obligations, including, without limitation, the payment in full in cash of all unpaid principal of and accrued interest on the Securities and all actual and contingent amounts (other than inchoate indemnification amounts) payable under the Hedge Agreements, the Indenture Trustee shall release the Security Interests in the Portfolio and the other Collateral hereunder. In connection therewith, the Indenture Trustee agrees, at the expense of the Issuer and without the necessity of any consent from any Secured Party, to execute such instruments of release, in recordable form if necessary, in favor of the Issuer as the Issuer may reasonably request in respect of the release of the Portfolio and the other Collateral from the Security Interests, and to otherwise release the security interests evidenced by this Master Indenture in and with respect to such Collateral to the Issuer and to issue confirmation to such Persons as the Issuer may direct, upon being requested to do so by the Issuer, that such Collateral is no longer subject to the Security Interests.
In connection with an Optional Redemption of Notes, concurrently with the deposit of the Redemption Price into the Redemption/Defeasance Account, if such Optional Redemption shall effect a redemption in whole of a Series of Notes then Outstanding, the Indenture Trustee shall be deemed to have been authorized to permit a release of Collateral in accordance with this paragraph. In order to effect any such Collateral release, the Servicer on behalf of the Issuer will identify in a Release Identification Letter a pool of individual Railcars and Leases (i) that were originally acquired by the Issuer on or prior to the issuance date of the Series being redeemed or substituted therefor, and (ii) that if such pool were released from the lien of this Master Indenture, would not result in (A) the Issuer being in violation of the Concentration Limits immediately after such proposed release of Collateral, (B) the Issuer’s remaining
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Portfolio Railcars immediately after such proposed release of Collateral having an average age which is more than twenty percent (20%) greater than the average age of the Issuer’s remaining Portfolio Railcars immediately prior to such proposed release of Collateral, (C) the Issuer’s remaining Portfolio Leases immediately after such proposed release of Collateral having an average remaining term which is less than eighty percent (80%) of the average remaining term of the Issuer’s Portfolio Leases immediately prior to such proposed release of Collateral, (D) the Book LTV Ratio immediately after such proposed release of Collateral being greater than the Book LTV Ratio immediately prior to such proposed release of Collateral and (E) the Current LTV Ratio immediately after such proposed release of Collateral being greater than the Current LTV Ratio immediately prior to such proposed release of Collateral. For this purpose:
“Release Identification Letter” means a letter from the Servicer (on behalf of the Issuer) addressed to the Indenture Trustee that identifies a pool of Railcars and Leases referred to in the preceding paragraph and certifies as to the satisfaction of the conditions in clause (ii) of the preceding paragraph. The Indenture Trustee shall be entitled to rely conclusively and exclusively on a Release Identification Letter without further investigation in connection with any release contemplated by the preceding paragraph.
“Book LTV Ratio” means, as of any date of determination, a ratio equivalent to a fraction, the numerator of which is the Outstanding Principal Balance of the Equipment Notes as of such date of determination, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such date of determination.
“Current LTV Ratio” means, as of any date of determination, a ratio equivalent to a fraction, the numerator of which is the Outstanding Principal Balance of the Equipment Notes as of such date of determination, and the denominator of which is the aggregate Special Appraised Value of the Portfolio Railcars as of such date of determination.
“Special Appraised Value” means the value assigned to the Railcars by Rail Solutions, Inc. or another independent railcar appraiser that is of comparable standing and reputation in the good faith judgment of the Servicer, as performed no earlier than ninety (90) days prior to the release date and obtained by the Servicer at the cost of the Issuer.
5.    Exercise of the Issuer’s Rights Concerning the Servicing Agreement. The Issuer hereby agrees that, whether or not an Event of Default has occurred and is continuing, so long as this Master Indenture has not been terminated and the Security Interests on the Collateral released, the Indenture Trustee (acting at the Direction of the Requisite Majority) shall have the exclusive right to exercise and enforce all of the rights of the Issuer set forth in Sections 8.2, 8.3, 8.5 (other than the right to propose the list of replacement servicers pursuant to Section 8.5(b)) and 8.6 of the Servicing Agreement (including, without limitation, the rights to deliver all notices, declare a Servicer Termination Event, terminate the Servicing Agreement, elect to replace the Servicer and/or elect to appoint a Successor Servicer and select any replacement Servicer, and the right to increase the Servicing Fee and/or add an incentive fee payable to any such Successor Servicer); provided that so long as no Event of Default has occurred and is continuing, the Issuer shall retain the non-exclusive right to approve the list of proposed replacement Servicers (such approval not to be unreasonably withheld or delayed) and to deliver notices under Section 8.2 of the Servicing Agreement and declare a Servicer
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Termination Event thereunder. In furtherance of the foregoing, the Issuer hereby irrevocably appoints the Indenture Trustee as its attorney-in-fact to exercise all rights described in this Granting Clause provision in its place and stead.
ARTICLE 1
DEFINITIONS

Section 1.01    Definitions. For purposes of this Master Indenture, the terms set forth in Annex A hereto shall have the meanings indicated in such Annex A.
Section 1.02 Rules of Construction. Unless the context otherwise requires:
(a)A term has the meaning assigned to it and an accounting term not otherwise defined has the meaning assigned to it in accordance with U.S. GAAP.
(b)The terms “herein”, “hereof” and other words of similar import refer to this Master Indenture as a whole and not to any particular Article, Section or other subdivision.
(c)Unless otherwise indicated in context, all references to Articles, Sections, Schedules, Exhibits or Annexes refer to an Article or Section of, or a Schedule, Exhibit or Annex to, this Master Indenture.
(d)Words of the masculine, feminine or neuter gender shall mean and include the correlative words of other genders, and words in the singular shall include the plural, and vice versa.
(e)The terms “include”, “including” and similar terms shall be construed as if followed by the phrase “without limitation”.
(f)References in this Master Indenture to an agreement or other document (including this Master Indenture) mean the agreement or other document and all schedules, exhibits, annexes and other materials that are part of such agreement and include references to such agreement or document as amended, supplemented, restated or otherwise modified in accordance with its terms and the provisions of this Master Indenture, and the provisions of this Master Indenture apply to successive events and transactions.
(g)References in this Master Indenture to any statute or other legislative provision shall include any statutory or legislative modification or re-enactment thereof, or any substitution therefor.
(h)References in this Master Indenture to the Securities of any Series or any Class, as the case may be, include the terms and conditions applicable to the Securities of such Series or such Class, as the case may be, and any reference to any amount of money due or payable by reference to the Securities of any Series or any Class, as the case may be, shall include any sum covenanted to be paid by the Issuer under this Master Indenture and the related Series Supplement in respect of the Securities of such Series or such Class, as applicable.
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(i)References in this Master Indenture to any action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security shall be deemed to include, in respect of any jurisdiction other than the State of New York, references to such action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security available or appropriate in such jurisdiction as shall most nearly approximate such action, remedy or method of judicial proceeding described or referred to in this Master Indenture.
(j)Where any payment is to be made, funds applied or any calculation is to be made hereunder on a day which is not a Business Day, unless this Master Indenture or any other Operative Agreement otherwise provides, such payment shall be made, funds applied and calculation made on the next succeeding Business Day, and payments shall be adjusted accordingly.
(k)For purposes of determining the balance of amounts credited to and/or deposited in an Indenture Account, the “value” of Permitted Investments deposited in and/or credited to an Indenture Account shall be the lower of the acquisition cost thereof and the then fair market value thereof and the “value” of Dollars and cash equivalents of Dollars (other than cash equivalents of Dollars included in the definition of Permitted Investments) shall be the face value thereof.
Section 1.03 Compliance Certificates and Opinions. Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Master Indenture or any Series Supplement, the Issuer shall furnish to the Indenture Trustee an Officer’s Certificate stating that, in the opinion of the signers thereof, all conditions precedent, if any, provided for in this Master Indenture and/or such Series Supplement relating to the proposed action have been complied with, and, if requested by the Indenture Trustee, an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Master Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Master Indenture, any Series Supplement or any Indenture Supplement shall include:
(a)a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions in this Master Indenture, such Series Supplement and/or such Indenture Supplement relating thereto;
(b)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c)a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
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(d)a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.04 Acts of Holders.
(a)Any direction, consent, waiver or other action provided by this Master Indenture in respect of the Securities of any Series or Class or the Collateral to be given or taken by the Indenture Trustee at the Direction of Holders (including a Control Party or a Requisite Majority) may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders, Control Party or Requisite Majority, as applicable, in person or by an agent or proxy duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, to each Rating Agency where it is hereby expressly required pursuant to this Master Indenture and to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders, Control Party or Requisite Majority signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose under this Master Indenture and any Series Supplement and conclusive in favor of the Indenture Trustee or the Issuer, if made in the manner provided in this Section.
(b)The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or such other officer and where such execution is by an officer of a corporation or association, trustee of a trust or member of a partnership, on behalf of such corporation, association, trust or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner that the Indenture Trustee deems sufficient.
(c)In determining whether any Holders, any Control Party or any Requisite Majority shall have given any direction, consent, request, demand, authorization, notice, waiver or other Act (any of the foregoing may be referred to as a “Direction”) under this Master Indenture or any Series Supplement (including without limitation any consent pursuant to Sections 4.04 or 9.02(a)), any Equipment Notes legally or beneficially owned by any Issuer Group Member shall be disregarded and deemed not to be Outstanding for purposes of any such determination. In determining whether the Indenture Trustee shall be protected in relying upon any such Direction, only Equipment Notes that a Responsible Officer of the Indenture Trustee actually knows to be so owned shall be so disregarded. Notwithstanding the foregoing, if any such Person legally or beneficially owns 100% of the Equipment Notes then Outstanding then such Equipment Notes shall not be so disregarded for purposes of such determination.
(d)The Issuer may at its option, by delivery of an Officer’s Certificate to the Indenture Trustee, set a record date other than the Record Date to determine the Holders in respect of the Securities of any Series entitled to give any Direction in respect of such
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Securities. Such record date shall be the record date specified in such Officer’s Certificate which shall be a date not more than 30 days prior to the first solicitation of Holders in connection therewith. If such a record date is fixed, such Direction may be given before or after such record date, but only the Holders of record of such Series at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities of such Series have authorized or agreed or consented to such Direction, and for that purpose the Outstanding Securities of such Series shall be computed as of such record date; provided that no such Direction by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Master Indenture not later than one year after the related record date.
(e)Any Direction or other action by a Holder (including a Control Party or a Requisite Majority) shall bind the Holder of every Security issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such action is made upon such Security.
ARTICLE 2

THE SECURITIES
Section 2.01 Authorization, Issuance and Authentication of the Securities; Amount of Outstanding Principal Balance; Terms; Form; Execution and Delivery.
(a)The number of Series of Notes which may be created by this Master Indenture is not limited. A single Series of Class E Certificates shall be created on the Initial Closing Date. The Securities shall be issued in such Series as may from time to time be created by Series Supplements pursuant to this Master Indenture and may be issued in such Classes within a Series as may be authorized by the related Series Supplement for such Series. Each Series shall be created by a separate Series Supplement and shall be identified in a manner sufficient to differentiate the Securities of each such Series from the Securities of any other Series. The Securities of each Series (and Classes within such Series) will rank pari passu with the Securities of each other Series upon the occurrence and during the continuation of an Event of Default and otherwise will be paid in accordance with the Flow of Funds.
(b)Upon satisfaction of and compliance with the requirements and conditions to closing set forth in the related Series Supplement, the Securities of the applicable Series to be executed and delivered on a particular Closing Date pursuant to such Series Supplement may be executed by the Issuer and delivered to the Indenture Trustee for authentication following the execution and delivery of the related Series Supplement creating such Series or from time to time thereafter, and the Indenture Trustee shall authenticate and deliver the Securities of such Series upon the Issuer’s request and direction set forth in an Officer’s Certificate of the Issuer signed by one of its Responsible Officers, without further action on the part of the Issuer. Notwithstanding anything to the contrary contained hereunder or in any Series Supplement, any such authentication may be made on separate counterparts and by facsimile.
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(c)There shall be issued, delivered and authenticated on the relevant Closing Date to each of the Holders identified on such Securities, Securities in the principal amounts and maturities and bearing interest at the relevant Stated Rate, in each case in registered form and substantially in the form set forth in an exhibit to the applicable Series Supplement or the Certificate Purchase Agreement, as applicable, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Master Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements printed, lithographed, typewritten or engraved thereon, as may be required to comply with the rules of any securities exchange on which such Securities may be listed or to conform to any usage in respect thereof, or as may, consistently herewith, be prescribed by the Indenture Trustee executing such Securities, such determination by said Indenture Trustee to be evidenced by its authentication of such Securities. Definitive Securities of a Series shall be printed, lithographed, typewritten or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the Indenture Trustee authenticating such Securities, as evidenced by such authentication.
(i)Each Series of Equipment Notes (or Class thereof) sold in reliance on Rule 144A shall be represented by one or more permanent 144A Book-Entry Notes which will be deposited with DTC or its custodian, the Indenture Trustee or an agent of the Indenture Trustee and registered in the name of Cede as nominee of DTC. The 144A Book-Entry Note shall only be transferred to a successor organization subject to the same terms and any other transfers of such 144A Book-Entry Note shall otherwise be limited as necessary in order for the 144A Book-Entry Note to constitute an immobilized obligation for purposes of Internal Revenue Service Notice 2012-20 (or such other guidance as may be adopted under the Code and Treasury Regulations).
(ii)Each Series of Equipment Notes (or Class thereof) offered and sold outside of the United States in reliance on Regulation S shall be represented by a Regulation S Temporary Book-Entry Note, which will be deposited with the Indenture Trustee or an agent of the Indenture Trustee as custodian for and registered in the name of Cede, as nominee of DTC. The Regulation S Temporary Book-Entry Note shall only be transferred to a successor organization subject to the same terms and any other transfers of such Regulation S Temporary Book-Entry Note shall otherwise be limited as necessary in order for the Regulation S Temporary Book-Entry Note to constitute an immobilized obligation for purposes of Internal Revenue Service Notice 2012-20 (or such other guidance as may be adopted under the Code and Treasury Regulations). Beneficial interests in each Regulation S Temporary Book-Entry Note may be held only through Euroclear or Clearstream; provided, however, that such interests may be exchanged for interests in a 144A Book-Entry Note or a Definitive Note in accordance with the certification requirements described in Section 2.07.
(iii)A beneficial owner of an interest in a Regulation S Temporary Book-Entry Note may receive payments in respect of such Regulation S Temporary Book-Entry Notes only after delivery to Euroclear or Clearstream, as the case may be, of a written certification substantially in the form set forth in Exhibit A-1 to this Master Indenture, and upon delivery by Euroclear or Clearstream, as the case may be, to the
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Indenture Trustee and Securities Registrar of a certification or certifications substantially in the form set forth in Exhibit A-2 to this Master Indenture. The delivery by a beneficial owner of the certification referred to above shall constitute its irrevocable instruction to Euroclear or Clearstream, as the case may be, to arrange for the exchange of the beneficial owner’s interest in the Regulation S Temporary Book-Entry Note for a beneficial interest in the Unrestricted Book-Entry Note after the Exchange Date in accordance with the paragraph below.
(iv)Not earlier than the Exchange Date, interests in each Regulation S Temporary Book-Entry Note will be exchangeable for interests in the related permanent global note (an “Unrestricted Book-Entry Note”). Each Unrestricted Book-Entry Note will be deposited with the Indenture Trustee and registered in the name of Cede as nominee of DTC. After (1) the Exchange Date and (2) receipt by the Indenture Trustee and Securities Registrar of written instructions from Euroclear or Clearstream, as the case may be, directing the Indenture Trustee and Securities Registrar to credit or cause to be credited to either Euroclear’s or Clearstream’s, as the case may be, depositary account a beneficial interest in the Unrestricted Book-Entry Note in a principal amount not greater than that of the beneficial interest in the Regulation S Temporary Book-Entry Note, the Indenture Trustee and Securities Registrar shall instruct DTC to reduce the principal amount of the Regulation S Temporary Book-Entry Note and increase the principal amount of the Unrestricted Book-Entry Note, in each case by the principal amount of the beneficial interest in the Regulation S Temporary Book-Entry Note to be so transferred, and to credit or cause to be credited to the account of a Direct Participant a beneficial interest in the Unrestricted Book-Entry Note having a principal amount equal to the reduction in the principal amount of such Regulation S Temporary Book-Entry Note.
(v)Upon the exchange of the entire principal amount of the Regulation S Temporary Book-Entry Note for beneficial interests in the Unrestricted Book-Entry Note, the Indenture Trustee shall cancel the Regulation S Temporary Book-Entry Note in accordance with the Indenture Trustee’s policies in effect from time to time.
(vi)No interest in the Regulation S Book-Entry Notes may be held by or transferred to a United States Person except for exchanges for a beneficial interest in a 144A Book-Entry Note or a Definitive Note as described below.
(vii)The Subordinated Notes shall be represented by Definitive Notes at all times and shall be held by either the applicable Holder or the Authorized Agent for the benefit of the applicable Holders of such Subordinated Notes, printed, lithographed, typewritten or otherwise produced, in any denomination, containing substantially the same terms and provisions as are set forth in the applicable exhibit to the Series Supplement. At the instruction of the Authorized Agent from time to time, a new Definitive Note representing a Subordinated Note shall be issued in the name and in a principal amount specified by the Authorized Agent in writing to the Issuer and the Indenture Trustee, and the applicable existing Definitive Note held by the Authorized Agent for the benefit of the Holders of Subordinated Notes will be exchanged for such
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new Definitive Note accordingly. In connection with transfers in whole or part of any Definitive Notes held directly by Holders of Subordinated Notes, the Authorized Agent may also from time to time request that new Definitive Notes be issued and old Definitive Notes be exchanged or cancelled, as applicable. The Authorized Agent must request in writing that the Issuer execute, and the Indenture Trustee authenticate any issuance or reissuance of Definitive Notes in accordance with Section 2.11(f).
(viii)The Class E Certificates, which are sold in reliance on Regulation D, shall be initially represented by Definitive Certificates held by the Certificate Agent for the benefit of the Holder of the Class E Certificates, printed, lithographed, typewritten or otherwise produced, in any denomination, containing substantially the same terms and provisions as are set forth in the applicable exhibit to the Certificate Purchase Agreement. Under the circumstances set forth in the Certificate Purchase Agreement, a Holder of the Class E Certificates may request that it receive a Definitive Certificate. At the instruction of the Certificate Agent, a new Definitive Certificate of the applicable class shall be issued in the name, and in a stated amount, specified by the Certificate Agent in writing to the Issuer and the Indenture Trustee, and the applicable existing Definitive Certificate held by the Certificate Agent for the benefit of the other Holders of the Class E Certificates will be exchanged for a new Definitive Certificate with a reduced stated amount. In connection with transfers in whole or part of any Definitive Certificates held directly by the Holders of the Class E Certificates, the Certificate Agent may also from time to time request that new Definitive Certificates be issued and old Definitive Certificates be exchanged or cancelled. The Certificate Agent must request in writing that the Issuer execute, and the Indenture Trustee authenticate, any issuance or reissuance of Definitive Certificates in accordance with clause (g) below.
(d)The Securities shall be executed on behalf of the Issuer by the manual or facsimile signature of an Authorized Representative of the Issuer.
(e)Each Security bearing the manual or facsimile signatures of any individual who was at the time such Security was executed an Authorized Representative of the Issuer shall bind the Issuer, notwithstanding that any such individual has ceased to hold such office prior to the authentication and delivery of such Securities or any payment thereon.
(f)No Security shall be entitled to any benefit under this Master Indenture or any related Series Supplement or be valid or obligatory for any purpose, unless it shall have been executed on behalf of the Issuer as provided in clause (b) and (e) above and authenticated by or on behalf of the Indenture Trustee as provided in clause (b) above. Such signatures shall be conclusive evidence that such Security has been duly executed and authenticated under this Master Indenture and any related Series Supplement. Each Security shall be dated the date of its authentication.
(g)At the written direction of the Certificate Agent from time to time, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver to the Certificate Agent, new and replacement Definitive Certificates from time to time in the amounts and in the names so directed by the Certificate Agent. The Indenture Trustee shall have no responsibility to deliver any such Definitive Certificate to the Holder of such Class E Certificate, and the issuance of Definitive Certificates shall not create any obligation on the part of the Issuer or the
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Indenture Trustee to make payments to any party other than the Certificate Agent, who will remain solely liable for distribution of amounts received in connection with the Class E Certificates to the Holders of the Class E Certificates.
Section 2.02 Restrictive Legends. The Class E Certificates shall bear the legends required under the Certificate Purchase Agreement. Each 144A Book-Entry Note, each Regulation S Temporary Book-Entry Note, each Unrestricted Book-Entry Note, each Subordinated Note and each Definitive Note (and all Notes issued in exchange therefor or upon registration of transfer or substitution thereof) shall bear a legend on the face thereof substantially in the form set forth below (unless counsel to the Issuer advises that a different legend or additional legend is required for any reason):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES OR “BLUE SKY” LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF TRP 2021 LLC (THE “ISSUER”) THAT THIS NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE), (2) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE UNITED STATES TO A PERSON WHO IS NOT A U.S. PERSON (AS SUCH TERM IS DEFINED IN REGULATION S OF THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH REGULATION S OF THE SECURITIES ACT OR (4) IN A TRANSACTION COMPLYING WITH OR EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (SUBJECT IN THE CASE OF THIS CLAUSE (4) TO RECEIPT OF AN OPINION OF COUNSEL AND SUCH CERTIFICATES AND OTHER DOCUMENTS AS ARE REQUIRED UNDER THE INDENTURE REFERRED TO BELOW), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
[In the case of Class A Equipment Notes or Class B Equipment Notes:
BY ITS ACQUISITION OF THIS NOTE, EACH PURCHASER AND TRANSFEREE (AND ITS FIDUCIARY, IF APPLICABLE) WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED EITHER THAT (A) IT IS NOT AND IS NOT USING THE ASSETS OF AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, A “PLAN” AS DEFINED BY AND SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR OTHER PLAN’S INVESTMENT IN SUCH ENTITY
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(EACH, A “BENEFIT PLAN”), OR A GOVERNMENTAL PLAN, NON-U.S. PLAN OR CHURCH PLAN SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”), OR (B) THE PURCHASE AND HOLDING OF SUCH NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW.
ADDITIONALLY, IF A PURCHASER OR TRANSFEREE IS A BENEFIT PLAN, IT WILL BE DEEMED TO REPRESENT BY ITS PURCHASE OR ACQUISITION OF THIS NOTE (OR AN INTEREST THEREIN) THAT (I) NONE OF THE TRANSACTION PARTIES HAVE PROVIDED ANY INVESTMENT ADVICE WITHIN THE MEANING OF SECTION 3(21) OF ERISA TO THE BENEFIT PLAN, OR TO ANY FIDUCIARY OR OTHER PERSON INVESTING ON BEHALF OF THE BENEFIT PLAN OR WHO OTHERWISE HAS DISCRETION OR AUTHORITY OVER THE INVESTMENT AND MANAGEMENT OF “PLAN ASSETS” OF THE BENEFIT PLAN, IN CONNECTION WITH ITS ACQUISITION OF THIS NOTE AND (II) NO TRANSACTION PARTY IS ACTING AS A FIDUCIARY TO THE BENEFIT PLAN IN CONNECTION WITH THE BENEFIT PLAN’S PURCHASE OR ACQUISITION OF THIS NOTE.]
[In the case of Class C Equipment Notes or Class R Notes:
BY ITS ACQUISITION OF THIS NOTE, EACH PURCHASER AND TRANSFEREE (AND ITS FIDUCIARY, IF APPLICABLE) WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (A) IT IS NOT AND IS NOT USING THE ASSETS OF AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, A “PLAN” AS DEFINED BY AND SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR OTHER PLAN’S INVESTMENT IN SUCH ENTITY AND (B) IT IS NOT AND IS NOT USING THE ASSETS OF A GOVERNMENTAL PLAN, NON-U.S. PLAN OR CHURCH PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
[In the case of Book-Entry Notes:
THIS NOTE IS A GLOBAL BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE REFERRED TO BELOW.
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UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO BELOW.]
[In the case of a Note issued with original issue discount, as defined in Section 1271 et seq. of the Code:
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED. FOR INFORMATION REGARDING THE ISSUE DATE, ISSUE PRICE, YIELD TO MATURITY AND THE AMOUNT OF OID, PLEASE CONTACT [ ], ATTN: [ ]]
[In the case of Subordinated Notes:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.]
[In the case of Subject Notes:
EACH HOLDER OF THIS NOTE AGREES (AND EACH APPLICABLE PERSON BY VIRTUE OF ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE (OR BY VIRTUE OF AGREEING TO ACT AS AN AGENT, REPRESENTATIVE OR INTERMEDIARY OF OR WITH RESPECT TO THE HOLDER OF SUCH A BENEFICIAL INTEREST) IS DEEMED TO AGREE) THAT THIS NOTE MAY NOT BE TRANSFERRED, AND NO TRANSFER (OR PURPORTED TRANSFER) OF ALL OR ANY PART OF THIS NOTE (OR ANY DIRECT OR INDIRECT BENEFICIAL INTEREST THEREIN) WHETHER TO THE INITIAL HOLDER, ANOTHER HOLDER OR TO A
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PERSON THAT IS NOT A HOLDER (ANY OF THESE, A “TRANSFEREE”) SHALL BE EFFECTIVE, AND TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW ANY SUCH TRANSFER (OR PURPORTED TRANSFER) SHALL BE VOID AB INITIO, AND NO PERSON SHALL OTHERWISE BECOME A HOLDER OF THIS NOTE (OR A HOLDER OF ANY DIRECT OR INDIRECT BENEFICIAL INTEREST HEREIN), UNLESS: (I) (A) EITHER (I) THE TRANSFEREE (OR, IF THE TRANSFEREE IS A DISREGARDED ENTITY FOR U.S. FEDERAL INCOME TAX PURPOSES, THE SOLE OWNER OF THE TRANSFEREE) IS NOT AND WILL NOT BECOME FOR U.S. FEDERAL INCOME TAX PURPOSES A PARTNERSHIP, SUBCHAPTER S CORPORATION OR GRANTOR TRUST (EACH SUCH ENTITY, A “FLOW-THROUGH ENTITY”) OR (II) IF THE TRANSFEREE (OR, IF THE TRANSFEREE IS A DISREGARDED ENTITY FOR U.S. FEDERAL INCOME TAX PURPOSES, THE SOLE OWNER OF THE TRANSFEREE) IS OR BECOMES A FLOW-THROUGH ENTITY, THEN EITHER (X) NONE OF THE DIRECT OR INDIRECT BENEFICIAL OWNERS OF ANY OF THE INTERESTS IN THE TRANSFEREE HAVE OR EVER WILL HAVE ALL OR SUBSTANTIALLY ALL THE VALUE OF ITS INTEREST IN THE TRANSFEREE ATTRIBUTABLE TO THE INTEREST OF THE TRANSFEREE IN THIS NOTE, ANY OTHER SUBJECT SECURITIES, OTHER INTEREST (DIRECT OR INDIRECT) IN THE ISSUER, OR ANY INTEREST CREATED UNDER THE MASTER INDENTURE OR (Y) IT IS NOT AND WILL NOT BE A PRINCIPAL PURPOSE OF THE ARRANGEMENT INVOLVING THE INVESTMENT OF THE TRANSFEREE IN THIS NOTE TO PERMIT ANY PARTNERSHIP TO SATISFY THE ONE HUNDRED (100) PARTNER LIMITATION OF SECTION 1.7704-1(H)(1)(II) OF THE TREASURY REGULATIONS NECESSARY FOR SUCH PARTNERSHIP NOT TO BE CLASSIFIED AS A PUBLICLY TRADED PARTNERSHIP UNDER THE CODE, (B) THE TRANSFEREE WILL NOT SELL, ASSIGN, TRANSFER OR OTHERWISE CONVEY ANY PARTICIPATING INTEREST IN THIS NOTE OR ANY FINANCIAL INSTRUMENT OR CONTRACT THE VALUE OF WHICH IS DETERMINED BY REFERENCE IN WHOLE OR IN PART TO THIS NOTE, AND (C) IT IS NOT ACQUIRING, AND WILL NOT SELL, TRANSFER, ASSIGN, PARTICIPATE, PLEDGE OR OTHERWISE DISPOSE OF, THIS NOTE (OR INTEREST THEREIN) OR CAUSE THIS NOTE (OR INTEREST THEREIN) TO BE MARKETED, ON OR THROUGH AN “ESTABLISHED SECURITIES MARKET” WITHIN THE MEANING OF SECTION 7704(B) OF THE CODE, INCLUDING, WITHOUT LIMITATION, AN INTERDEALER QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS, AND (II) AFTER SUCH TRANSFER THERE WOULD BE NO MORE THAN NINETY (90) MEMBERS OF THE LIMITED LIABILITY COMPANY THAT IS THE ISSUER (INCLUDING AS MEMBERS, SOLELY FOR PURPOSES OF THIS CLAUSE (II), HOLDERS OF ANY SUBJECT SECURITY (AND HOLDERS OF ANY BENEFICIAL INTEREST THEREIN) AND HOLDERS OF ANY OTHER INSTRUMENTS SUBJECT TO THE TRANSFER RESTRICTIONS OF SECTION 2.17(a) OF THE MASTER INDENTURE). ANY SUBSEQUENT TRANSFER OF THIS NOTE BY A TRANSFEREE SHALL BE SUBJECT TO THE LIMITATIONS OF THIS PARAGRAPH AND SHALL BE VOID AB INITIO, AND NO PERSON SHALL OTHERWISE BECOME A HOLDER OF THIS NOTE, UNLESS THIS PARAGRAPH AND THE PROVISIONS OF SECTION 2.17(a) OF THE MASTER INDENTURE ARE SATISFIED. {FOR DEFINITIVE NOTES ONLY: THE
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AUTHORIZED AGENT SHALL NOT REGISTER ANY TRANSFER OF THIS NOTE UNLESS THE AUTHORIZED AGENT (IN CONSULTATION WITH THE ISSUER) HAS CONFIRMED THAT AFTER SUCH TRANSFER, THE REQUIREMENTS OF SECTION 2.17(a) OF THE MASTER INDENTURE SHALL HAVE BEEN SATISFIED}. THE ISSUER SHALL NOT RECOGNIZE ANY PROHIBITED TRANSFER DESCRIBED IN THIS PARAGRAPH, INCLUDING WITHOUT LIMITATION BY (I) REDEEMING THE TRANSFEROR’S INTEREST, OR (II) RECOGNIZING THE TRANSFEREE AS A HOLDER OR OTHERWISE RECOGNIZING ANY RIGHT OF THE TRANSFEREE (INCLUDING, WITHOUT LIMITATION, ANY RIGHT OF THE TRANSFEREE TO RECEIVE PAYMENTS OR OTHER DISTRIBUTIONS FROM THE ISSUER, DIRECTLY OR INDIRECTLY).
EACH HOLDER OF THIS NOTE AND EACH OWNER OF A BENEFICIAL INTEREST IN THIS NOTE REPRESENTS AND AGREES THAT IF IT IS PART OF A SECTION 385 EXPANDED GROUP (OR IS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO A SECTION 385 EXPANDED GROUP), AND IF THE ISSUER IS TREATED AS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO SUCH SECTION 385 EXPANDED GROUP (ASSUMING SOLELY FOR THIS PURPOSE THAT THIS NOTE IS TREATED FOR U.S. FEDERAL INCOME TAX PURPOSES AS EQUITY), THEN NEITHER IT NOR ANY MEMBER OF (NOR ANY SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO) SUCH SECTION 385 EXPANDED GROUP WILL OWN OR WILL THEREAFTER (FOR SO LONG AS THIS NOTES IS SO OWNED) OWN ANY NOTES (THAT ARE OUTSTANDING FOR U.S. FEDERAL INCOME TAX PURPOSES) OF A CLASS OR SERIES SENIOR TO THIS NOTE (“SENIOR NOTES”), UNLESS SUCH HOLDER (OR OWNER) HAS EITHER (1) OBTAINED AND PROVIDED TO THE SECURITIES REGISTRAR AND THE ISSUER AN OPINION OF U.S. TAX COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT, UNDER THEN-EXISTING LAW, SUCH ACQUISITION AND OWNERSHIP OF SENIOR NOTES SHOULD NOT (ASSUMING SOLELY FOR THIS PURPOSE THAT THIS NOTE IS TREATED FOR U.S. FEDERAL INCOME TAX PURPOSES AS EQUITY) CAUSE SECTION 385 OF THE CODE, AND ANY PROPOSED, TEMPORARY, OR FINAL TREASURY REGULATIONS PROMULGATED THEREUNDER, TO APPLY TO SUCH SENIOR NOTES SO AS TO CAUSE ANY SUCH SENIOR NOTES TO BE RECLASSIFIED AS (OR GIVING RISE TO) EQUITY FOR U.S. FEDERAL INCOME TAX PURPOSES OR (2) AFTER HAVING PROVIDED THE SECURITIES REGISTRAR AND THE ISSUER SUCH INFORMATION, REPRESENTATIONS AND COVENANTS AS MAY BE REQUIRED BY THE ISSUER (IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER IN ITS SOLE DISCRETION) RELATING TO THE RISK OF RECHARACTERIZATION OF ANY SUCH SENIOR NOTES AS EQUITY UNDER TREASURY REGULATION SECTION 1.385-3, OBTAINS A WRITTEN CONFIRMATION FROM THE ISSUER THAT THE FOREGOING OPINION IS NOT REQUIRED. THE PRECEDING SENTENCE SHALL NOT APPLY IF EACH MEMBER OF THE SECTION 385 EXPANDED GROUP THAT INCLUDES SUCH HOLDER OR BENEFICIAL OWNER (OR WITH RESPECT TO WHICH SUCH HOLDER OR
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BENEFICIAL OWNER IS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY) IS A MEMBER OF THE SAME CONSOLIDATED GROUP (AS DESCRIBED IN TREASURY REGULATION SECTION 1.1502-1(H)) THAT FILES A CONSOLIDATED U.S. FEDERAL INCOME TAX RETURN.]
[In the case of Notes that are U.S.-Restricted Securities:
EACH HOLDER OF THIS NOTE AGREES (AND EACH APPLICABLE PERSON BY VIRTUE OF ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE (OR BY VIRTUE OF AGREEING TO ACT AS AN AGENT, REPRESENTATIVE OR INTERMEDIARY OF OR WITH RESPECT TO THE HOLDER OF SUCH A BENEFICIAL INTEREST) IS DEEMED TO AGREE) THAT THIS NOTE (AND ANY INTEREST THEREIN) MAY BE HELD ONLY BY UNITED STATES PERSONS AS DEFINED IN SECTION 7701(A)(30) OF THE CODE, AND THAT HE, SHE OR IT SHALL NOT MAKE ANY ISSUANCE, DELIVERY, SALE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE (OR ANY BENEFICIAL INTEREST IN THIS NOTE), AND ANY ISSUANCE, DELIVERY, SALE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE (OR ANY BENEFICIAL INTEREST IN THIS NOTE) WILL NOT BE EFFECTIVE AND WILL BE VOID AB INITIO, IF IT WOULD RESULT IN ANY PERSON THAT IS NOT A UNITED STATES PERSON HOLDING THIS NOTE OR ANY INTEREST THEREIN.]
[In the case of Notes, other than Subject Notes that, pursuant to Section 2.19(b), are to be reported as equity for U.S. federal income tax purposes:
EACH HOLDER OF THIS NOTE AGREES TO TREAT THIS NOTE AS DEBT FOR U.S. FEDERAL INCOME TAX PURPOSES.]
[In the case of Subject Notes that, pursuant to Section 2.19(b), are to be reported as equity for U.S. federal income tax purposes:
EACH HOLDER OF THIS NOTE AGREES TO TREAT THIS NOTE AS EQUITY FOR U.S. FEDERAL INCOME TAX PURPOSES.]
Section 2.03 Securities Registrar and Paying Agents.
(a)With respect to each Series of Securities, there shall at all times be maintained an office or agency in the location set forth in Section 13.04 where Securities of such Series may be presented or surrendered for registration of transfer or for exchange (each, a “Securities Registrar”), and for payment thereof (each, a “Paying Agent”) and where notices to or demands upon the Issuer in respect of such Securities may be served. For so long as any Series of Notes is listed on any stock exchange, the Issuer shall appoint and maintain a Paying Agent and a Securities Registrar acting for this purpose as an agent of the Issuer in the jurisdiction in which such stock exchange is located. The Issuer shall cause each Securities Registrar to keep a register of the Securities for which it is acting as Securities Registrar and of their transfer and exchange (the “Register”), which shall include the name and address of, and the Outstanding Principal Balance owing to, each Holder. Written notice of the location of each such other office or agency and of any change of location thereof shall be given by the Indenture Trustee to the Issuer and the Holders of the Securities of such Series so long as U.S. Bank is acting as Securities Registrar and Paying Agent. In the event
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that no such office or agency shall be maintained or no such notice of location or of change of location shall be given, presentations and demands may be made and notices may be served at the Corporate Trust Office of the Indenture Trustee. Notwithstanding anything to the contrary in this Master Indenture, the entries in the applicable Register shall be conclusive, in the absence of manifest error, and the Issuer, the Indenture Trustee, and the Holders shall treat each Person in whose name a Security is registered as the beneficial owner thereof (including with respect to all payments of principal and stated interest thereon) for all purposes of this Master Indenture. No transfer of a Security shall be effective unless such transfer has been recorded in the applicable Register as provided in this Section. U.S. Bank shall initially be a Paying Agent and Securities Registrar hereunder with respect to the Notes. With respect to the Class E Certificates, the Certificate Agent shall act as Paying Agent and Securities Registrar and will maintain the Register for the Class E Certificates.
(b)Each Authorized Agent (other than the Certificate Agent with respect to the Class E Certificates) shall (i) maintain an office or agency in the location listed as its address set forth in Section 13.04, (ii) be a bank, trust company or a corporation organized and doing business under the laws of the United States or any state or territory thereof or of the District of Columbia, with a combined capital and surplus of at least $75,000,000 (or having a combined capital and surplus in excess of $5,000,000 and the obligations of which, whether now in existence or hereafter incurred, are fully and unconditionally guaranteed by a corporation organized and doing business under the laws of the United States, any state or territory thereof or of the District of Columbia and having a combined capital and surplus of at least $75,000,000), and (iii) be authorized under the laws of the United States or any state or territory thereof to exercise corporate trust powers, subject to supervision by Federal or state authorities (such requirements, the “Eligibility Requirements”). The Certificate Agent and any other Securities Registrar other than the Indenture Trustee shall furnish to the Indenture Trustee, at stated intervals of not more than six months, and at such other times as the Indenture Trustee may request in writing, a copy of the Register maintained by such Securities Registrar.
(c)Any Person into which any Authorized Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authorized Agent shall be a party, or any Person succeeding to the corporate trust business of any Authorized Agent, shall be the successor of such Authorized Agent hereunder, if such successor Person is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authorized Agent or such successor Person.
(d)Any Authorized Agent may at any time resign by giving written notice of resignation to the Indenture Trustee and the Issuer; provided however that the Certificate Agent may only resign in accordance with the terms of the Certificate Purchase Agreement. The Issuer may, and at the request of the Indenture Trustee shall, at any time terminate the agency of any Authorized Agent by giving written notice of termination to such Authorized Agent and to the Indenture Trustee. Upon the resignation or termination of an Authorized Agent or if at any time any such Authorized Agent shall cease to be eligible under this Section (when, in either case, no other Authorized Agent performing the functions of such Authorized Agent shall have been appointed by the Indenture Trustee), the Issuer shall
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promptly appoint one or more qualified successor Authorized Agents to perform the functions of the Authorized Agent that has resigned or whose agency has been terminated or who shall have ceased to be eligible under this Section. The Issuer shall give written notice of any such appointment made by it to the Indenture Trustee; and in each case the Indenture Trustee shall send notice of such appointment to all Holders of the Securities of the related Series as their names and addresses appear on the Register for the Securities of such Series.
(e)The Issuer agrees to pay, or cause to be paid, from time to time reasonable compensation to each Authorized Agent (other than the Certificate Agent) for its services and to reimburse it for its reasonable expenses to be agreed to pursuant to separate agreements with each such Authorized Agent.
Section 2.04 Paying Agent to Hold Money in Trust. The Indenture Trustee shall require each Paying Agent other than the Indenture Trustee to agree in writing that all moneys deposited with any Paying Agent for the purpose of any payment on the Securities shall be deposited and held in trust for the benefit of the Holders entitled to such payment, subject to the provisions of this Section. Moneys so deposited and held in trust shall constitute a separate trust fund for the benefit of the Holders with respect to which such money was deposited. No Paying Agent shall hold monies payable by the Issuer to Hedge Providers.
The Indenture Trustee may at any time, for the purpose of obtaining the satisfaction and discharge of this Master Indenture or for any other purpose, direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such moneys.
Section 2.05 Method of Payment.
(a)On each Payment Date, the Indenture Trustee shall, or shall instruct a Paying Agent to, pay to the Holders of each Series all interest, principal, premium and/or other distributions, if any, on the Securities of such Series required to be paid on such Payment Date, in each case to the extent of the Available Collections Amount and pursuant to the Flow of Funds; provided, that in the event and to the extent receipt of any payment is not confirmed by the Indenture Trustee or such Paying Agent by noon (New York City time) on such Payment Date or any Business Day thereafter, distribution thereof shall be made on the Business Day following the Business Day such payment is received; provided further, that (i) payment on a Regulation S Temporary Book-Entry Note shall be made to the Holder thereof only in conformity with Section 2.05(c) and (ii) the Indenture Trustee shall make all payments with respect to the Class E Certificates to the Certificate Agent, who shall be responsible as Paying Agent for all payments to the Holders of such Class E Certificates in accordance with the Certificate Purchase Agreement. Each such payment on any Payment Date other than the final payment with respect to any Series of Securities shall be made by the Indenture Trustee or the applicable Paying Agent to the Holders as of the Record Date for such Payment Date. The final payment with respect to any Security, however, shall be made only upon presentation and surrender of such Security by the Holder or its agent at the Corporate Trust Office or agency of the Indenture Trustee or Paying Agent specified in the notice given by the Indenture Trustee or Paying Agent with respect to such final payment.
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(b)At such time, if any, as the Notes of any Series are issued in the form of Definitive Notes, payments on a Payment Date shall be made by wire transfer to an account designated by each Holder in writing at least five (5) Business Days prior to such Payment Date, provided that if a Holder has not provided such information on a timely basis such payment shall be made by check mailed to each Holder of a Definitive Note on the applicable Record Date at its address appearing on the Register maintained with respect to such Series; provided that the final payment for each Series of Notes shall be made only upon presentation and surrender of the Definitive Notes of such Series by the Holder or its agent at the Corporate Trust Office or agency of the Indenture Trustee or Paying Agent specified in the notice of such final payment given by the Indenture Trustee or Paying Agent. The Indenture Trustee or Paying Agent shall mail such notice of the final payment of such Series to each of the Holders of such Series, specifying the date and amount of such final payment.
(c)The beneficial owner of a Regulation S Temporary Book-Entry Note of any Series may arrange to receive interest, principal and premium payments through Euroclear or Clearstream on such Regulation S Temporary Book-Entry Note only after delivery by such beneficial owner to Euroclear or Clearstream, as the case may be, of a written certification substantially in the form of Exhibit A-3 hereto, and upon delivery of Euroclear or Clearstream, as the case may be, to the Paying Agent of a certification or certifications substantially in the form of Exhibit A-4 hereto. No interest, principal or premium shall be paid to any beneficial owner, and no interest, principal or premium shall be paid to Euroclear or Clearstream on such beneficial owner’s interest in a Regulation S Temporary Book-Entry Note unless Euroclear or Clearstream, as the case may be, has provided such a certification to the Paying Agent with respect to such interest, principal and/or premium.
Section 2.06 Minimum Denomination. Unless otherwise specified in the Series Supplement for a Series, each Security shall be issued in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof; provided that, notwithstanding anything to the contrary herein, the Class E Certificates and one Note of each Class of a Series of Notes may be issued with such excess in integral multiples of $1.
Section 2.07 Exchange Option for Notes. If the holder (other than an Initial Purchaser) of a beneficial interest in an Unrestricted Book-Entry Note deposited with DTC wishes at any time to exchange its interest in the Unrestricted Book-Entry Note, or to transfer its interest in the Unrestricted Book-Entry Note to a Person who wishes to take delivery thereof in the form of an interest in the 144A Book-Entry Note, the holder may, subject to the rules and procedures of Euroclear or Clearstream and DTC, as the case may be, give directions for the Indenture Trustee and Securities Registrar to exchange or cause the exchange or transfer or cause the transfer of the interest for an equivalent beneficial interest in the 144A Book-Entry Note. Upon receipt by the Indenture Trustee and Securities Registrar of (a) instructions from Euroclear or Clearstream (based on instructions from depositaries for Euroclear and Clearstream) or from a DTC Participant, as applicable, or DTC, as the case may be, directing the Indenture Trustee and Securities Registrar to credit or cause to be credited a beneficial interest in the 144A Book-Entry Note equal to the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or transferred (such instructions to contain information regarding the DTC Participant account to be credited with the increase, and, with respect to an exchange or transfer of an interest in the Unrestricted Book-Entry Note, information regarding the DTC Participant account to be
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debited with the decrease), and (b) a certificate in the form of Exhibit A-8, given by the Holder (and the proposed transferee, if applicable), the Indenture Trustee and Securities Registrar shall instruct DTC to reduce the Unrestricted Book-Entry Note by the aggregate principal amount of the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or transferred, and the Indenture Trustee shall instruct DTC, concurrently with the reduction, to increase the principal amount of the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the Unrestricted Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in the instructions a beneficial interest in the 144A Book-Entry Note equal to the reduction in the principal amount of the Unrestricted Book-Entry Note.
If a holder (other than an Initial Purchaser) of a beneficial interest in the 144A Book-Entry Note wishes at any time to exchange its interest in the 144A Book-Entry Note for an interest in a Regulation S Book-Entry Note, or to transfer its interest in the 144A Book-Entry Note to a Person who wishes to take delivery thereof in the form of an interest in the Regulation S Book-Entry Note, the holder may, subject to the rules and procedures of DTC, give directions for the Indenture Trustee and Securities Registrar to exchange or cause the exchange or transfer or cause the transfer of the interest for an equivalent beneficial interest in the Regulation S Book-Entry Note. Upon receipt by the Indenture Trustee and Securities Registrar of (a) instructions given in accordance with DTC’s procedures from a DTC Participant directing the Indenture Trustee and Securities Registrar to credit or cause to be credited a beneficial interest in the Regulation S Book-Entry Note in an amount equal to the beneficial interest in the 144A Book-Entry Note to be exchanged or transferred, (b) a written order given in accordance with DTC’s procedures containing information regarding the account of the depositaries for Euroclear or Clearstream or another Clearing Agency Participant, as the case may be, to be credited with the increase and the name of the account and (c) certificates in the forms of Exhibits A-5 and A-7 hereto, respectively, given by the Holder and the proposed transferee of the interest, the Indenture Trustee and Securities Registrar shall instruct DTC to reduce the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred, and the Indenture Trustee and Securities Registrar shall instruct DTC, concurrently with the reduction, to increase the principal amount of the Regulation S Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in the instructions a beneficial interest in the Regulation S Book-Entry Note equal to the reduction in the principal amount of the 144A Book-Entry Note.
Notwithstanding anything to the contrary herein, an Initial Purchaser may exchange beneficial interests in the Regulation S Temporary Book-Entry Note held by it for interests in the 144A Book-Entry Note only after delivery by the Initial Purchaser of instructions to DTC for the exchange, substantially in the form of Exhibit A-6 hereto. Upon receipt of the instructions provided in the preceding sentence, the Indenture Trustee and Securities Registrar shall instruct DTC to reduce the principal amount of the Regulation S Temporary Book-Entry Note to be so transferred and shall instruct DTC to increase the principal amount of the 144A Book-Entry Note and credit or cause to be credited to the account of the placement agent a beneficial interest in the 144A Book-Entry Note having a principal amount equal to the amount
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by which the principal amount of the Regulation S Temporary Book-Entry Note was reduced upon the transfer pursuant to the instructions provided in the first sentence of this paragraph.
If a Book-Entry Note is exchanged for a Definitive Note, such Equipment Notes may be exchanged or transferred for one another only in accordance with such procedures as are substantially consistent with the provisions of the three immediately preceding paragraphs (including the certification requirements intended to ensure that the exchanges or transfers comply with Rule 144 or Regulation S, as the case may be) and as may be from time to time adopted by the Indenture Trustee.
Section 2.08 Mutilated, Destroyed, Lost or Stolen Securities. If any Security shall become mutilated, destroyed, lost or stolen, the Issuer shall issue, upon the written request of the Holder thereof and presentation of the Security or satisfactory evidence of destruction, loss or theft thereof to the Indenture Trustee or Securities Registrar, and the Indenture Trustee shall authenticate and the Indenture Trustee or Securities Registrar shall deliver in exchange therefor or in replacement thereof, a new Security of the same Series and Class (if applicable), payable to such Holder in the same principal amount, of the same maturity, with the same payment schedule, bearing the same interest rate and dated the date of its authentication. If the Security being replaced has become mutilated, such Security shall be surrendered to the Indenture Trustee or a Securities Registrar and forwarded to the Issuer by the Indenture Trustee or such Securities Registrar. If the Security being replaced has been destroyed, lost or stolen, the Holder thereof shall furnish to the Issuer, the Indenture Trustee or a Securities Registrar (i) such security or indemnity as may be required by them to save the Issuer, the Indenture Trustee and such Securities Registrar harmless and (ii) evidence satisfactory to the Issuer, the Indenture Trustee and such Securities Registrar of the destruction, loss or theft of such Security and of the ownership thereof. The Holder will be required to pay any tax or other governmental charge imposed in connection with such exchange or replacement and any other expenses (including the fees and expenses of the Indenture Trustee and any Securities Registrar) connected therewith.
Section 2.09 Payments of Transfer Taxes. Upon the transfer of any Security or Securities pursuant to Section 2.07, the Issuer or the Indenture Trustee may require from the party requesting such new Security or Securities payment of a sum to reimburse the Issuer or the Indenture Trustee for, or to provide funds for the payment of, any transfer tax or similar governmental charge payable in connection with the transfer.
Section 2.10 Book-Entry Registration.
(a)Upon the issuance of any Book-Entry Notes, DTC or its custodian will credit, on its book-entry registration and transfer system, the respective principal amounts of the individual beneficial interests represented by such Book-Entry Notes to the accounts of a Direct Participant. Ownership of beneficial interests in a Book-Entry Note will be limited to DTC Participants or Persons who hold interests through DTC Participants. Ownership of beneficial interests in the Book-Entry Notes will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC (with respect to interests of DTC Participants) and the records of DTC Participants (with respect to interests of Persons other than DTC Participants).
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(b)So long as DTC, or its nominee, is the registered owner or holder of a Book-Entry Note, DTC or such nominee, as the case may be, will be considered the sole owner or Holder represented by such Book-Entry Note for all purposes under this Master Indenture, the Series Supplements and the Book-Entry Notes. Unless (a) DTC notifies the Issuer that it is unwilling or unable to continue as depository for a Book-Entry Note with respect to a Series, (b) the Issuer elects to terminate the book-entry system for the Book-Entry Notes with respect to a Series, or (c) an Event of Default has occurred and the Indenture Trustee acting at the Direction of the Control Party for the applicable Series certifies that continuation of a book-entry system through DTC (or a successor) for the Equipment Notes of such Series is no longer in the best interests of the Holders of such Series, owners of beneficial interests in a Book-Entry Note of such Series will not be entitled to have any portion of such Book-Entry Note registered in their names, will not receive or be entitled to receive physical delivery of Equipment Notes in definitive form and will not be considered to be the owners or Holders under this Master Indenture, the applicable Series Supplement or the Book-Entry Notes. In addition, no beneficial owner of an interest in a Book-Entry Note will be able to transfer that interest except in accordance with DTC’s applicable procedures (in addition to those under the related Series Supplement and those of Clearstream and Euroclear, in each case, as applicable).
(c)Investors may hold their interest in a Regulation S Book-Entry Note through Clearstream or Euroclear, if they are participants in such systems, or indirectly through organizations that are participants in such systems. After the Exchange Date, investors also may hold such interests through organizations other than Clearstream and Euroclear that are DTC Participants. Clearstream and Euroclear will hold interests in a Regulation S Book-Entry Note on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries, which in turn will hold such interests in a Regulation S Book-Entry Note in customers’ accounts in the depositaries’ names on the books of DTC. Investors may hold their interests in a 144A Book-Entry Note directly through DTC, if they are DTC Participants, or indirectly through organizations that are DTC Participants.
(d)All payments of principal and interest will be made by the Paying Agent on behalf of the Issuer in immediately available funds or the equivalent, so long as DTC continues to make its Same-Day Funds Settlement System available to the Issuer.
None of the Issuer, the Securities Registrar, the Paying Agent or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such registration instructions. Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the Persons in whose name the Definitive Notes are registered in the Register as Holders hereunder. Neither the Issuer nor the Indenture Trustee shall be liable if the Indenture Trustee or the Issuer is unable to locate a qualified successor Holder.
Definitive Notes of a Series will be transferable and exchangeable for Definitive Notes of the same Series at the office of the Indenture Trustee or the office of a Securities Registrar upon compliance with the requirements set forth herein. In the case of a transfer of only part of a holding of Definitive Notes, a new Definitive Note
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shall be issued to the transferee in respect of the part transferred and a new Definitive Note in respect of the balance of the holding not transferred shall be issued to the transferor and may be obtained at the office of the applicable Securities Registrar.
(e)Any beneficial interest in one of the Book-Entry Notes of any Series that is transferred to a Person who takes delivery in the form of an interest in another Book-Entry Note of the same Series will, upon transfer, cease to be an interest in such Book-Entry Note and become an interest in such other Book-Entry Note and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Book-Entry Note for as long as it remains such an interest.
(f)Any Definitive Note delivered in exchange for an interest in a 144A Book-Entry Note pursuant to Section 2.07 shall bear the Private Placement Legend applicable to a 144A Book-Entry Note set forth in Section 2.02.
(g)Any Definitive Note delivered in exchange for an interest in an Unrestricted Book-Entry Note pursuant to Section 2.07 shall bear the Private Placement Legend applicable to a Unrestricted Book-Entry Note set forth in Section 2.02.
Section 2.11 Special Transfer Provisions.
(a)Transfers of Equipment Notes to Non-QIB Institutional Accredited Investors. The following provisions shall apply with respect to the registration of any proposed transfer of an Equipment Note (other than a Regulation S Temporary Book-Entry Note) or any interest therein to any Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons):
(i)The Securities Registrar shall register the transfer of any Equipment Note, whether or not such Equipment Note bears the Private Placement Legend, if the proposed transferee has delivered to the Securities Registrar (A) a certificate substantially in the form of Exhibit B hereto and (B) an Opinion of Counsel acceptable to the Issuer that such transfer is in compliance with the Securities Act.
(ii)If the proposed transferor is a Direct Participant holding a beneficial interest in the 144A Book-Entry Note, upon receipt by the Securities Registrar of (x) the documents, if any, required by paragraph (i) and (y) instructions given in accordance with the DTC’s and the Securities Registrar’s procedures, the Securities Registrar shall reflect on its books and records the date and a decrease in the principal amount of the 144A Book-Entry Note in an amount equal to the principal amount of the beneficial interest in the 144A Book-Entry Note to be transferred, and the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver, one or more Definitive Notes of like tenor and amount.
(b)Transfers of Equipment Notes to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of an interest in a 144A Book-Entry Note or a Definitive Note (other than a Subordinated Note) issued in exchange for an interest in such 144A Book-Entry Note in accordance with this Section 2.11(b) to a QIB (excluding Non-U.S. Persons):
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(i)If the Equipment Note to be transferred consists of (x) Definitive Notes, the Securities Registrar shall register the transfer if such transfer is being made by a proposed transferor who delivers a certificate in the form of Exhibit A-8 hereto to the Issuer and the Securities Registrar, or has otherwise advised the Issuer and the Securities Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has advised the Issuer and the Securities Registrar in writing, that it is purchasing the Equipment Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account are QIBs within the meaning of Rule 144A, are aware that the sale to it is being made in reliance on Rule 144A and acknowledge that they have received such information regarding the Issuer as they have requested pursuant to Rule 144A or have determined not to request such information and that they are aware that the transferor is relying upon their foregoing representations in order to claim the exemption from registration provided by Rule 144A or (y) an interest in a 144A Book-Entry Note, the transfer of such interest may be effected only through the book-entry system maintained by the DTC.
(ii)If the proposed transferee is a Direct Participant, and the Equipment Note to be transferred is a Definitive Note, upon receipt by the Securities Registrar of the documents referred to in clause (i) and instructions given in accordance with the DTC’s and the Securities Registrar’s procedures, the Securities Registrar shall reflect on its books and records the date and an increase in the principal amount at maturity of the 144A Book-Entry Note in an amount equal to the principal amount at maturity of the Definitive Note to be transferred, and the Indenture Trustee shall cancel the Definitive Note so transferred.
(c)Transfers of Interests in a Regulation S Temporary Book-Entry Note. The following provisions shall apply with respect to registration of any proposed transfer of interests in a Regulation S Temporary Book-Entry Note:
(i)The Securities Registrar shall register the transfer of any interest in a Regulation S Temporary Book-Entry Note (x) if the proposed transferee is a Non-U.S. Person and the proposed transferor has delivered to the Securities Registrar a certificate substantially in the form of Exhibit A-7 or (y) if the proposed transferee is a QIB and the proposed transferor has checked the box provided for on the form of such Equipment Note stating, or has otherwise advised the Issuer and the Securities Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has advised the Issuer and the Securities Registrar in writing, that it is purchasing such Equipment Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account are QIBs within the meaning of Rule 144A, are aware that the sale to them is being made in reliance on Rule 144A and acknowledge that they have received such information regarding the Issuer as they have requested pursuant to Rule 144A or have determined not to request such information and that they are aware that the transferor is relying upon their foregoing representations in order to claim the exemption from registration provided by Rule 144A.
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(ii)If the proposed transferee is a Direct Participant that provides the documents referred to in clause (i)(y) above, upon receipt by the Securities Registrar of such documents and instructions given in accordance with DTC’s and the Securities Registrar’s procedures, the Securities Registrar shall reflect on its books and records the date and an increase in the principal amount of the 144A Book-Entry Note of the relevant Series, in an amount equal to the principal amount of the Regulation S Temporary Book-Entry Note of such Series to be transferred, and the Indenture Trustee shall decrease the amount of the Regulation S Temporary Book-Entry Note of such Series.
(d)Transfers of Interests in an Unrestricted Book-Entry Note. The Securities Registrar shall register any transfer of interests in an Unrestricted Book-Entry Note, or a Definitive Note issued in exchange for an interest in a Regulation S Temporary Book-Entry Note or Unrestricted Book-Entry Note in accordance with Section 2.11(b), to U.S. Persons in accordance with Section 2.07, or to Non-U.S. Persons in accordance with the applicable procedures of Euroclear or Clearstream and their respective participants.
(e)Transfers of Equipment Notes to Non-U.S. Persons at any Time. With respect to any transfer of an Equipment Note to a Non-U.S. Person prior to the applicable Exchange Date, the Securities Registrar shall register any proposed transfer of a Regulation S Temporary Book-Entry Note to a Non-U.S. Person upon receipt of a certificate substantially in the form of Exhibit A-7 hereto from the proposed transferor.
(f)Transfers and Exchanges of Subordinated Notes. The Subordinated Notes or any beneficial interests therein may not be sold, pledged or otherwise transferred without an effective registration statement under the Securities Act related thereto or receipt by the Issuer of an opinion of counsel in a form satisfactory to the Issuer that such registration is not required under the Securities Act. Subject to Section 2.01(c)(vii) hereof, at the written instruction of the Authorized Agent from time to time, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver to the Authorized Agent, new and replacement Definitive Notes, as applicable, representing the Subordinated Notes, in the principal amounts and in the names so specified by the Authorized Agent in writing, and the applicable existing Definitive Notes held by the Authorized Agent for the benefit of the Holders of the Subordinated Notes will be exchanged for new Definitive Notes accordingly. The issuance of any new or replacement Definitive Notes, as applicable, shall not create any new obligation on the part of the Issuer or the Indenture Trustee to make payments to any party other than the Authorized Agent, who will remain solely liable for distribution of amounts received in connection with the Subordinated Notes to the Holders of such Subordinated Notes.
(g)Transfers of Class E Certificates. All transfers of Class E Certificates shall be subject to the transfer restrictions set forth in Section 2.17(a), Section 2.17(b) and in the Certificate Purchase Agreement.
(h)ERISA Transfer Restrictions.
(i)With respect to a Class A Equipment Note or Class B Equipment Note, each purchaser and subsequent transferee of any such Equipment Note will be deemed to have represented and warranted either that (A) it is not and is not using the assets of
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an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, a “plan” as defined by and subject to Section 4975 of the Code (a “Plan”), an entity whose underlying assets include “plan assets” by reason of an employee benefit plan’s or other plan’s investment in such entity (a “Benefit Plan”), or a governmental plan, non-U.S. plan or church plan subject to any federal, state, local or other law that is substantially similar to Title I of ERISA or Section 4975 of the Code (“Similar Law”), or (B) the purchase and holding of such Equipment Note will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of Similar Law. Additionally, if a purchaser or transferee is a Benefit Plan, it will be deemed to represent by its purchase or acquisition of a Class A Equipment Note or Class B Equipment Note (or an interest therein) that (i) none of the Transaction Parties have provided any investment advice within the meaning of Section 3(21) of ERISA to the Benefit Plan, or to any fiduciary or other person investing on behalf of the Benefit Plan or who otherwise has discretion or authority over the investment and management of “plan assets” of the Benefit Plan, in connection with its acquisition of such Notes, and (ii) no Transaction Party is acting as a fiduciary to the Benefit Plan in connection with the Benefit Plan’s purchase or acquisition of such Notes.
(ii)With respect to a Class C Equipment Note or Class R Note, each purchaser and subsequent transferee of any such Note will be deemed to have represented and warranted that (A) it is not and is not using the assets of an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, a Plan, or an entity whose underlying assets include “plan assets” by reason of an employee benefit plan’s or other plan’s investment in such entity and (B) it is not and is not using the assets of a governmental plan, non-U.S. plan or church plan that is subject to any Similar Law.
(iii)With respect to a Class E Certificate, each purchaser and subsequent transferee of any such Security will be deemed to have represented and warranted that (A) it is not and is not using the assets of an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, a Plan, or an entity whose underlying assets include “plan assets” by reason of an employee benefit plan’s or other plan’s investment in such entity and (B) it is not and is not using the assets of a governmental plan, non-U.S. plan or church plan that is subject to any Similar Law.
(i)General. By its acceptance of any Equipment Note bearing the Private Placement Legend, each Holder of such Equipment Note acknowledges the restrictions on transfer of such Equipment Note set forth in this Master Indenture and in the Private Placement Legend and agrees that it will transfer such Equipment Note only as provided in this Master Indenture. The Securities Registrar shall not register a transfer of any Equipment Note unless such transfer complies with the restrictions on transfer of such Equipment Note set forth in this Master Indenture. In connection with any transfer of Equipment Notes, each Holder agrees by its acceptance of its Equipment Notes to furnish the Indenture Trustee the certifications and legal opinions described herein to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities
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Act; provided that the Indenture Trustee shall not be required to determine (but may rely on a determination made by the Issuer with respect to) the sufficiency of any such legal opinions.
Section 2.12 Temporary Definitive Securities. Pending the preparation of Definitive Securities of a Series, the Issuer may execute and the Indenture Trustee may authenticate and deliver temporary Definitive Securities of such Series which are printed, lithographed, typewritten or otherwise produced, in any denomination, containing substantially the same terms and provisions as are set forth in the applicable exhibit to the related Series Supplement, except for such appropriate insertions, omissions, substitutions and other variations relating to their temporary nature as the Authorized Representative of the Issuer executing such temporary Definitive Securities may determine, as evidenced by his execution of such temporary Definitive Securities.
If temporary Definitive Securities of a Series are issued, the Issuer will cause Definitive Securities of such Series to be prepared without unreasonable delay. After the preparation of Definitive Securities of such Series, the temporary Definitive Securities shall be exchangeable for Definitive Securities upon surrender of such temporary Definitive Securities at the Corporate Trust Office of the Indenture Trustee, without charge to the Holder thereof. Upon surrender for cancellation of any one or more temporary Definitive Securities, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor Definitive Securities of the same Series, in authorized denominations and in the same aggregate principal amounts. Until so exchanged, such temporary Definitive Securities shall in all respects be entitled to the same benefits under this Master Indenture as Definitive Securities.
Section 2.13 Statements to Holders.
(a)With respect to each Collection Period, the Issuer shall, not later than the last Business Day before the Payment Date immediately following the last day of such Collection Period, cause the Administrator to deliver to the Indenture Trustee, and the Indenture Trustee shall (or shall instruct any Paying Agent to) promptly thereafter (but not later than such Payment Date) make available on the Indenture Trustee’s internet website, initially located at https://pivot.usbank.com, to each Rating Agency, each Hedge Provider and each Liquidity Facility Provider, and to each Holder of record with respect to such Payment Date, a report, substantially in the form attached as Exhibit C-1 hereto prepared by the Administrator or Servicer and setting forth the information described therein (each, a “Monthly Report”). Beginning in December of 2021, the Issuer shall cause the Administrator or Servicer to deliver to the Indenture Trustee with the Monthly Report for each December, and the Indenture Trustee shall (or shall instruct any Paying Agent to) make available at its internet website with the Monthly Report for each December to the Persons described in the first sentence in this Section 2.13(a), a report, substantially in the form attached as Exhibit C-2 hereto prepared by the Administrator or Servicer and setting forth the information described therein (each, an “Annual Report”). As soon as practicable following receipt, the Indenture Trustee shall (or shall instruct any Paying Agent to) make available to each Holder of record at the time of such posting at its internet website the Green Bond Report delivered by the Administrator pursuant to the Administrative Services Agreement. The Indenture Trustee shall also make available at its internet website, promptly upon written request, a copy of each Monthly Report and Annual
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Report to any Holder or other Secured Party and, at the written request of any Holder, to any prospective purchaser of any Securities from such Holder. If any Series of Securities is then listed on any stock exchange, the Indenture Trustee also shall make available at its internet website a copy of each Monthly Report and each Annual Report to the applicable listing agent on behalf of such stock exchange. The Indenture Trustee may change its website from time to time as shall be specified by the Indenture Trustee from time to time in writing to the Issuer, the Holders and each Rating Agency. In connection with providing access to the Indenture Trustee’s internet website, the Indenture Trustee may require registration and the acceptance of a disclaimer. The Indenture Trustee shall not be liable for the dissemination of information in accordance with this Indenture.
(b)After the end of each calendar year but not later than the latest date permitted by law, the Administrator or Servicer shall deliver to the Indenture Trustee, and the Indenture Trustee shall (or shall instruct any Paying Agent to) furnish to each Person who at any time during such calendar year was a Holder of record of any Securities, a statement (for example, a Form 1099 or any other means required by law) prepared by the Administrator or Servicer containing such information as is required to be provided to such Person for U.S. federal income tax purposes with respect to each Series of Securities for such calendar year or, in the event such Person was a Holder of record of any Series during only a portion of such calendar year, for the applicable portion of such calendar year, and such other items as are readily available to the Administrator or Servicer and which a Holder shall reasonably request as necessary for the purpose of such Holder’s preparation of its U.S. federal income or other tax returns. So long as any of the Equipment Notes are registered in the name of DTC or its nominee, such report and such other items will be prepared on the basis of such information supplied to the Administrator by DTC and the Direct Participants, and will be delivered by the Indenture Trustee, when received from the Administrator or Servicer, to DTC for transfer to the applicable beneficial owners in the manner described above. In the event that any such information has been provided by any Paying Agent directly to such Person through other tax-related reports or otherwise, the Indenture Trustee in its capacity as Paying Agent shall not be obligated to comply with such request for information.
(c)With respect to the Class E Certificates, the Certificate Agent shall prepare and deliver the information described in Section 2.13(b) to the Issuer and each Holder of a Class E Certificate for the period of its ownership of such Class E Certificate as the same appears on the records of the Certificate Agent in accordance with the terms of the Certificate Purchase Agreement. At such time, if any, as the Notes of any Series are issued in the form of Definitive Notes, the Indenture Trustee shall prepare and deliver the information described in Section 2.13(b) to each Holder of record of a Definitive Note of such Series for the period of its ownership of such Definitive Notes as the same appears on the records of the Indenture Trustee.
(d)Whenever a notice or other communication is required under this Master Indenture to be given to Holders of a Series: (i) if any Equipment Notes of such Series are registered with DTC, Euroclear and/or Clearstream, the Indenture Trustee shall give all such notices and communications to DTC, Euroclear and/or Clearstream, as the case may be; (ii) if Definitive Notes of a Series have been issued, then the Indenture Trustee shall give notices and communications to the Holders of such Definitive Notes by U.S. mail to the addresses of
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such Holders in the Register and (iii) with respect to the Class E Certificates, the Indenture Trustee shall give all such notices and communications to the Certificate Agent.
Section 2.14 CUSIP, CINS and ISIN Numbers. The Issuer in issuing the Notes may use “CUSIP”, “CINS”, “ISIN” or other identification numbers (if then generally in use), and if so, the Indenture Trustee shall use CUSIP numbers, CINS numbers, ISIN numbers or other identification numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or exchange and that reliance may be placed only on the other identification numbers printed on the Securities; provided further, that failure to use “CUSIP”, “CINS”, “ISIN” or other identification numbers in any notice of redemption or exchange shall not affect the validity or sufficiency of such notice.
Section 2.15 Tax Treatment of the Securities. The parties hereto agree, and the Holders of the Equipment Notes and interests therein, by their purchase thereof shall be deemed to have agreed, to treat the Equipment Notes as debt for U.S. federal income tax purposes (except in the case of an Equipment Note held by a Person that is treated as the same taxpayer as the Issuer for U.S. federal income tax purposes). In addition, the parties hereto agree, and the Holders of the Subordinated Notes and Class E Certificates, as the case may be, and interests therein, by their purchase of such Securities shall be deemed to have agreed (i) to treat the Subordinated Notes as debt for U.S. federal income tax purposes (except in the case of (i) a Subordinated Note held by a Person that is treated as the same taxpayer as the Issuer for U.S. federal income tax purposes or (ii) a Later Sold Note, if any, that is to be reported as equity for such purposes pursuant to Section 2.19(b)) and (ii) to treat the Class E Certificates as equity in the Issuer for all purposes, including for U.S. federal, state and local income and franchise tax.
Section 2.16 Compliance with Withholding Requirements. Notwithstanding any other provision of this Master Indenture, the Issuer and Indenture Trustee shall comply with all United States federal income tax withholding requirements (without any corresponding gross up) with respect to payments to Holders of interest, original issue discount, or other amounts that are subject to withholding under the Code, Treasury regulations thereunder, published rulings and judicial decisions. The consent of the Holders shall not be required for any such withholding. None of the Issuer, the Indenture Trustee, or any other party shall be obligated to pay any additional amounts to Holders as a result of any withholding or deduction for, or on account of, any tax imposed on or with respect to payments in respect of the Securities. For all purposes of this Master Indenture, any amount deducted or withheld pursuant to this Section 2.16 with respect to any Holder shall be treated as cash distributed to such Holder at the time it is withheld or deducted.
Section 2.17 Limitation on Transfers.
(a)Notwithstanding any other provision of this Master Indenture, any Note for which an Opinion of Counsel has not been rendered to the Issuer, in form and substance reasonably satisfactory to the Issuer, to the effect that such Note will be characterized as debt for United States federal income tax purposes (a “Subject Note”) and any Class E Certificate (together with the Subject Notes, the “Subject Securities”) shall be subject to the limitations of
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this Section 2.17(a). The Issuer and each Holder of a Subject Security agrees (and each Applicable Person by virtue of acquiring a beneficial interest in a Subject Security (or by virtue of agreeing to act as an agent, representative or intermediary of or with respect to the holder of such a beneficial interest) is deemed to agree) that no Subject Securities may be transferred, and no transfer (or purported transfer) of all or any part of a Subject Security (or any direct or indirect beneficial interest therein) (a “Transferred Security”) whether to the Initial Holder, another Holder or to a Person that is not a Holder (any of these, a “Transferee”) shall be effective, and to the greatest extent permitted under Applicable Law any such transfer (or purported transfer) shall be void ab initio, and no Person shall otherwise become a Holder of a Subject Security (or a holder of any direct or indirect beneficial interest therein), unless: (i) (A) either (I) the Transferee (or, if the Transferee is a disregarded entity for U.S. federal income tax purposes, the sole owner of the Transferee) is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity, a “flow-through entity”) or (II) if the Transferee (or, if the Transferee is a disregarded entity for U.S. federal income tax purposes, the sole owner of the Transferee) is or becomes a flow-through entity, then either (x) none of the direct or indirect beneficial owners of any of the interests in the Transferee have or ever will have all or substantially all the value of its interest in the Transferee attributable to the interest of the Transferee in any Transferred Security, any other Subject Securities, other interest (direct or indirect) in the Issuer, or any interest created under this Master Indenture or (y) it is not and will not be a principal purpose of the arrangement involving the investment of the Transferee in any Transferred Security to permit any partnership to satisfy the one hundred (100) partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Code, (B) the Transferee will not sell, assign, transfer or otherwise convey any participating interest in any Subject Security or any financial instrument or contract the value of which is determined by reference in whole or in part to any Subject Security and (C) it is not acquiring, and will not sell, transfer, assign, participate, pledge or otherwise dispose of, any Transferred Security (or interest therein) or cause any Transferred Security (or interest therein) to be marketed, on or through an “established securities market” within the meaning of Section 7704(b) of the Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations, and (ii) after such transfer there would be no more than ninety (90) members of the limited liability company that is the Issuer (including as members, solely for purposes of this Section 2.17(a), Holders of any Subject Security (and holders of any beneficial interest therein) and holders of any other instruments subject to the transfer restrictions of this Section 2.17(a)). Any subsequent transfer of a Transferred Security by a Transferee shall be subject to the limitations of this Section 2.17(a) and shall be void ab initio, and no Person shall otherwise become a Holder of such Transferred Security, unless this Section 2.17(a) is satisfied. In the case of Subject Securities that are Definitive Securities, the Authorized Agent shall not register any transfer of such Subject Security unless the Authorized Agent (in consultation with the Issuer) has confirmed that after such transfer, the requirements of this Section 2.17(a) shall have been satisfied. The Issuer shall not recognize any prohibited transfer described in this Section 2.17(a), including without limitation by (i) redeeming the transferor’s interest, or (ii) recognizing the Transferee as a Holder or otherwise recognizing any right of the Transferee (including, without limitation, any right of the Transferee to receive payments or other distributions from the Issuer, directly or indirectly). The Series Supplement relating to each Series of Subject
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Securities may set forth such transfer restrictions (including minimum principal denominations), certification requirements, covenants and other matters applicable to such Subject Securities that the Issuer deems advisable to effectuate the requirements of this Section 2.17(a).
(b)Notwithstanding any other provision of this Master Indenture, any Class E Certificate, and any Subject Note for which an Opinion of Counsel has not been rendered to the Issuer, in form and substance reasonably satisfactory to the Issuer, to the effect that such Note will or should be characterized as debt for United States federal income tax purposes (collectively with the Class E Certificates, “U.S.-Restricted Securities”) shall be subject to the limitations of this Section 2.17(b). Each Holder of a U.S.-Restricted Security agrees (and each Applicable Person by virtue of acquiring a beneficial interest in a U.S.-Restricted Security (or by virtue of agreeing to act as an agent, representative or intermediary of or with respect to the holder of such a beneficial interest) is deemed to agree) that the U.S.-Restricted Security (and any interest therein) may be held only by United States persons as defined in Section 7701(a)(30) of the Code, and that he, she or it shall not make any issuance, delivery, sale, transfer or other disposition of the U.S.-Restricted Security (or any beneficial interest in the U.S.-Restricted Security), and any issuance, delivery, sale, transfer or other disposition of the U.S.-Restricted Security (or any beneficial interest in the U.S.-Restricted Security) will not be effective and will be void ab initio, if it would result in any person that is not a United States persons holding the U.S.-Restricted Security or any interest therein. In addition, each U.S.-Restricted Security shall be issued only as Definitive Securities.
(c)In addition to the transfer restrictions in Section 2.17(a) and Section 2.17(b), the Class E Certificates may only be transferred or assigned subject to certain limitations set forth in the Certificate Purchase Agreement.
(d)Each Holder of a Subject Security and each owner of a beneficial interest in a Subject Security represents and agrees that if it is part of a Section 385 Expanded Group (or is a Section 385 Controlled Partnership or disregarded entity with respect to a Section 385 Expanded Group), and if the Issuer is treated as a Section 385 Controlled Partnership or disregarded entity with respect to such Section 385 Expanded Group (assuming solely for this purpose that such Subject Security is treated for U.S. federal income tax purposes as equity, to the extent not otherwise so treated), then neither it nor any member of (nor any Section 385 Controlled Partnership or disregarded entity with respect to) such Section 385 Expanded Group will own or will thereafter (for so long as the Subject Security are so owned) own any Notes (that are outstanding for U.S. federal income tax purposes) of a Class or Series senior to such Subject Security (“Senior Notes”), unless such Holder (or owner) has either (i) obtained and provided to the Securities Registrar and the Issuer an opinion of U.S. tax counsel in form and substance satisfactory to the Issuer to the effect that, under then-existing law, such acquisition and ownership of Senior Notes should not (assuming solely for this purpose that the Subject Security are treated for U.S. federal income tax purposes as equity) cause Section 385 of the Code, and any proposed, temporary, or final treasury regulations promulgated thereunder, to apply to such Senior Notes so as to cause any such Senior Notes to be reclassified as (or giving rise to) equity for U.S. federal income tax purposes or (ii) after having provided the Securities Registrar and the Issuer such information, representations and covenants as may be required by the Issuer (in form and substance satisfactory to the Issuer in its sole discretion) relating to the risk of recharacterization of any such Senior Notes as equity
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under Treasury Regulation Section 1.385-3, obtains a written confirmation from the Issuer that the foregoing opinion is not required. The preceding sentence shall not apply if each member of the Section 385 Expanded Group that includes such Holder or beneficial owner (or with respect to which such Holder or beneficial owner is a Section 385 Controlled Partnership or disregarded entity) is a member of the same consolidated group (as described in Treasury Regulation section 1.1502-1(h)) that files a consolidated U.S. federal income tax return.
Section 2.18 Holder Tax Identification Information. Each Holder and holder of an interest in a Security, by acceptance of a Security or such interest therein, will be deemed to have agreed to provide the Issuer, the Indenture Trustee and each Paying Agent with such Holder Tax Identification Information as requested from time to time by the Issuer, the Indenture Trustee, or such Paying Agent. Each Holder and holder of an interest in a Security will be deemed to understand and agree that each of the Issuer, the Indenture Trustee and each Paying Agent has the right to (i) withhold tax (including without limitation taxes required to be withheld under FATCA) on interest and other applicable amounts under the Code (without any corresponding gross-up) payable with respect to each Holder and holder of an interest in a Security that fails to comply with the foregoing requirements or as otherwise required under the Code or other Applicable Law (including, for the avoidance of doubt, FATCA) and (ii) provide such information and documentation and any other information concerning its interest in the applicable Security to the Internal Revenue Service and any other relevant U.S. or foreign tax authority.
Section 2.19 Later Sold Notes. With respect to any outstanding Notes retained by the Issuer or originally issued to the sole owner (as determined for U.S. federal income tax purposes) of the Issuer and that are sold by such initial holder (or any Affiliate thereof) to an unrelated purchaser at a later time (a “Later Sold Note”), such sale will not be effective unless:
(a)the Issuer shall have obtained an opinion from tax counsel to the Issuer (which opinion is based on and subject to only customary representations, assumptions and qualifications for an opinion of this nature and may rely, as to factual matters, on a certificate of a Person whose duties relate to the matters being certified) to the effect that, for U.S. federal income tax purposes, (i) such action will not cause any Note of any Outstanding Series or Class for which an Opinion of Counsel to the Issuer was rendered in connection with the original issuance of such Note to the effect that such Note is characterized as debt for U.S. federal income tax purposes, to be characterized as other than debt and (ii) such action will not cause the Issuer to be treated as an association (or publicly traded partnership) taxable as a corporation,
(b)either (i) the Issuer shall have obtained an opinion from tax counsel to the Issuer (which opinion may rely, as to factual matters, on a certificate of a Person whose duties relate to the matters being certified) to the effect that, for U.S. federal income tax purposes, such Later Sold Note will be characterized as debt or (ii) the Issuer shall designate such Later Sold Note as a Subject Note. In the event such Later Sold Note is designated as a Subject Note, (i) the Issuer shall obtain advice of tax counsel as to whether such Subject Note is appropriately reported as debt, or equity, for U.S. federal income tax purposes, and the Issuer shall comply with such advice, (ii) such Subject Note shall be subject to the restrictions set forth in Section 2.17 and shall bear the appropriate legends as set forth in Section 2.02 and (iii)
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any such Subject Note characterized as equity pursuant to clause (i) of this sentence shall be represented by a Definitive Note at all times, and
(c)either (i) such Later Sold Note has a CUSIP number that is different than that of any other Notes Outstanding immediately prior to such sale, or (ii) the Issuer receives an Opinion of Counsel that, for U.S. federal income tax purposes, either (1) such Later Sold Note has the same issue price and issue date as any Outstanding Notes that have the same CUSIP number as the Later Sold Note or (2) neither the Later Sold Notes nor the Outstanding Notes that have the same CUSIP number as the Later Sold Notes were issued with original issue discount.
ARTICLE 3

INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS
Section 3.01 Establishment of Indenture Accounts; Investments.
(a)Indenture Accounts. The Administrator, on behalf and at the direction of the Issuer, will establish or cause to be established with the Indenture Trustee on or before the Initial Closing Date and maintain all of the following accounts: (i) a collections account (the “Collections Account”), (ii) an optional reinvestment account (the “Optional Reinvestment Account”), (iii) an expense account (the “Expense Account”), (iv) a liquidity reserve account (the “Liquidity Reserve Account”) and (v) a liquidity facility collateral account (the “Liquidity Facility Collateral Account”). From time to time thereafter, the Administrator, on behalf and at the direction of the Issuer, will establish with the Indenture Trustee such other Indenture Accounts as may be authorized or required by this Master Indenture and the other Operative Agreements. The Administrator, on behalf of and at the direction of the Issuer, will (i) establish with the Indenture Trustee on or before the Initial Closing Date and maintain the Certificate Account, and (ii) establish with the Indenture Trustee on or before the Closing Date for each Series, and maintain, an account for such Series of Notes (each, a “Series Account”) and may so establish and maintain one or more sub-accounts of such Series Account for each Class of such Series (each, a “Class Account”). The Series Account and any Class Account for a Series will be identified in the Series Supplement for such Account.
(b)The Collections Account, the Optional Reinvestment Account, the Expense Account, and the Liquidity Reserve Account shall bear the account numbers set forth on Schedule 1 hereto. All amounts from time to time held in each Indenture Account (other than the Certificate Account and any Series Account) shall be held (i) in the name of the Indenture Trustee, for the benefit of the Secured Parties, and (ii) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture, and all such amounts shall constitute a part of the Collateral and shall not constitute payment of any Secured Obligation or any other obligation of the Issuer until applied as hereinafter provided. All amounts from time to time held in the Certificate Account and each Series Account shall be held (A) in the name of the Indenture Trustee, for the benefit of the Holders of the Class E Certificates (in the case of the Certificate Account) or the Holders of the related Series (in the case of any Series Accounts), and (B) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture and the
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Certificate Purchase Agreement or the related Series Supplement, as applicable, and all such amounts shall be collateral only for the relevant Class E Certificates or such Series and shall not constitute payment of the relevant Class E Certificates or such Series or any other obligation of the Issuer until applied as provided in this Master Indenture and the Certificate Purchase Agreement or the related Series Supplement, as applicable.
(c)Withdrawals and Transfers. The Indenture Trustee shall have sole dominion and control over the Indenture Accounts (including, inter alia, the sole power to direct withdrawals from or transfers among the Indenture Accounts), and the Issuer shall have no right to withdraw, or to cause the withdrawal of, funds or other investments held in the Indenture Accounts or to direct the investment of such funds or the liquidation of any Permitted Investments, in each case, other than as expressly provided herein, in the Certificate Purchase Agreement or, with respect to a Series Account, in a Series Supplement.
(d)Investments. For so long as any Securities remain Outstanding, the Indenture Trustee, at the written direction of the Administrator, shall invest and reinvest the funds on deposit in the Indenture Accounts (other than the Certificate Account and the Series Accounts, which shall not be invested) in Permitted Investments; provided, however, that if an Event of Default has occurred and is continuing, the Administrator shall have no right to direct such reinvestment and the Indenture Trustee shall invest such amount in Indenture Investments from the time of receipt thereof until such time as such amounts are required to be distributed pursuant to the terms of this Master Indenture. In the absence of written direction delivered to the Indenture Trustee from the Administrator, the Indenture Trustee shall invest any funds in a U.S. Bank money market deposit account. The Indenture Trustee shall make such investments and reinvestments in accordance with the terms of the following provisions:
(i)the Permitted Investments shall have maturities and other terms such that sufficient funds shall be available to make required payments pursuant to this Master Indenture on the Business Day immediately preceding the first Payment Date after which such investment is made; and
(ii)if any funds to be invested are not received in the Indenture Accounts by noon, New York City time, on any Business Day, such funds shall, if possible, be invested in a U.S. Bank money market deposit account.
(e)Earnings. Earnings on investments of funds in the Indenture Accounts shall be deposited in the Collections Account when received and credited as Collections for the Collection Period when so received, it being understood that funds in the Series Accounts and the Certificate Account shall not be invested.
(f)U.S. Bank as Securities Intermediary; Control.
(i)U.S. Bank shall act as the “securities intermediary” (within the meaning of the UCC) in respect of all securities and other property credited to the Indenture Accounts.
(ii)U.S. Bank as securities intermediary agrees with the parties hereto that each Indenture Account shall be an account to which financial assets (within the meaning of the UCC) may be credited and undertakes to treat the Indenture Trustee as
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entitled to exercise rights that comprise such financial assets. U.S. Bank as securities intermediary agrees with the parties hereto that each item of property credited to each Indenture Account shall be treated as such a financial asset. U.S. Bank as securities intermediary acknowledges that the “securities intermediary’s jurisdiction” as defined in the UCC with respect to the Collateral, shall be the State of New York. U.S. Bank as securities intermediary represents and covenants that it is not and will not be (as long as it is acting as securities intermediary hereunder) a party to any agreement in respect of the Collateral that is inconsistent with the provisions of this Master Indenture. U.S. Bank as securities intermediary agrees that any item of property credited to any Indenture Account shall not be subject to any security interest, lien, or right of setoff in favor of the securities intermediary or anyone claiming through the securities intermediary (other than the Indenture Trustee).
(iii)It is the intent of the Indenture Trustee and the Issuer that each Indenture Account shall be a securities account of the Indenture Trustee and not an account of the Issuer. Nonetheless, U.S. Bank as securities intermediary agrees that it will comply with entitlement orders originated by the Indenture Trustee without further consent by the Issuer. U.S. Bank as securities intermediary hereby further covenants that it will not agree with any person or entity (other than the Indenture Trustee) that it will comply with entitlement orders originated by such person or entity.
(iv)Nothing herein shall imply or impose upon U.S. Bank as securities intermediary any duty or obligations other than those expressly set forth herein and those applicable to a securities intermediary under the UCC (and U.S. Bank as securities intermediary hereunder shall be entitled to all of the protections available to a securities intermediary under the UCC). Without limiting the foregoing, nothing herein shall imply or impose upon U.S. Bank as securities intermediary any duties of a fiduciary nature (but not in limitation of any such duties of the Indenture Trustee hereunder).
(v)U.S. Bank as securities intermediary hereby represents and warrants and agrees with the Issuer and for the benefit of the Indenture Trustee as follows:
(A)With respect to Permitted Investments and Indenture Investments that are book entry securities, such Permitted Investments and Indenture Investments have been credited to the Indenture Trustee’s securities account by accurate book entry.
(B)The securities intermediary shall not accept entitlement orders from any other person except as authorized by the Indenture Trustee.
(C)To the extent determined by the actions of U.S. Bank as securities intermediary, the Indenture Trustee shall at all times have “control” (as defined in Section 8-106 of the UCC) over the securities account and the Permitted Investments and Indenture Investments that are book entry securities.
(D)U.S. Bank as securities intermediary has received no notice of, and has no knowledge of any “adverse claim” (as such term is defined in the UCC) as to the Collateral.
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(E)U.S. Bank as securities intermediary waives any lien, claim or encumbrance in favor of the securities intermediary in the Collateral.
(F)U.S. Bank as securities intermediary is a “securities intermediary” as such term is defined in Section 8-102(a)(14) of the UCC and in the ordinary course of its business maintains “securities accounts” for others, as such terms are used in Section 8-501 of the UCC and as securities intermediary will be acting in such capacity hereunder.
(G)U.S. Bank as securities intermediary is not a “clearing corporation,” as such term is defined in Section 8-102(a)(5) of the UCC.
(vi)Each of the Issuer and the Indenture Trustee hereby agrees and acknowledges that U.S. Bank as securities intermediary, for the benefit of the Indenture Trustee and the Secured Parties, shall have “control” over each Indenture Account under and for purposes of Section 9-104(a)(1) of the UCC.
(g)Investment Disclosure. The Issuer and the Holders, by their acceptance of the Securities or their interests therein, acknowledge that shares or investments in Permitted Investments or Indenture Investments are not obligations of U.S. Bank, or any parent or affiliate of U.S. Bank, are not deposits and are not insured by the FDIC. The Indenture Trustee or its affiliate may be compensated by mutual funds or other investments comprising Permitted Investments or Indenture Investments for services rendered in its capacity as investment advisor, or other service provider, and such compensation is both described in detail in the prospectuses for such funds or investments, and is in addition to the compensation, if any, paid to U.S. Bank in its capacity as Indenture Trustee hereunder. The Issuer and Holders agree that the Indenture Trustee shall not be responsible for any losses or diminution in the value of the Indenture Accounts occurring as a result of the investment of funds in the Indenture Accounts in accordance with the terms hereof.
(h)Brokerage Confirmations. The Issuer acknowledges that to the extent the regulations of the Comptroller of the Currency or other applicable regulatory agency grant the Issuer the right to receive brokerage confirmations of securities transactions, the Issuer waives receipt of such confirmations. The Issuer shall retain the authority to institute, participate and join in any plan of reorganization, readjustment, merger or consolidation with respect to the issuer of any Permitted Investments held hereunder, and, in general, to exercise each and every other power or right with respect to such Permitted Investments as individuals generally have and enjoy with respect to their own assets and investments, including power to vote upon any matter relating to holders of such Permitted Investments.
Section 3.02 Collections Account.
(a)Pursuant to and in accordance with the terms of the Account Administration Agreement, the Account Collateral Agent is to, upon receipt thereof, deposit in the Customer Payment Account the Collections received by it. Pursuant to and subject to the terms of the Account Administration Agreement, on each Business Day all amounts constituting Collections on deposit in the Customer Payment Account are to be transferred by the Account Collateral Agent to the Collections Account.
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(b)The Indenture Trustee shall, upon receipt thereof, deposit in the Collections Account all Collections and all other payments received by it (and that are identified as such when received) in connection with the Portfolio.
(c)Additional funds may be deposited into the Collections Account from the Liquidity Reserve Account in accordance with Section 3.04, the Optional Reinvestment Account in accordance with Section 3.05 or by the Member through Capital Contributions in accordance with Section 3.17.
(d)All or any portion of any Net Disposition Proceeds from a Permitted Railcar Disposition received in the Collections Account may be transferred to the Optional Reinvestment Account pursuant to Section 3.05.
(e)On each Closing Date, at the direction of the Issuer, a portion of cash proceeds from the issuance of the Securities of the applicable Series, together with the amount of any necessary Capital Contribution made by the Member to the Issuer, will be deposited in the Collections Account in order to assure sufficient funds are available for payments on the first Payment Date for such Series pursuant to Section 3.11(a).
(f)All of the transfers of funds described in this Section 3.02 will be made prior to the distribution of the Available Collections Amount pursuant to Section 3.11.
Section 3.03 Withdrawal upon an Event of Default. After the occurrence of and during the continuance of an Event of Default, at the Direction of the Requisite Majority, the Indenture Trustee shall withdraw any or all funds then on deposit in any of the Indenture Accounts (other than the Certificate Account and the Series Accounts) and transfer such funds to the Collections Account for application on the next upcoming Payment Date in accordance with the Flow of Funds.
Section 3.04 Liquidity Reserve Account; Liquidity Facilities.
(a)On the Initial Closing Date, the Issuer shall enter into the Initial Liquidity Facility and deliver a copy thereof to the Indenture Trustee. On or after the Initial Closing Date, the Issuer: (i) may deliver to the Indenture Trustee one or more additional Liquidity Facilities issued in accordance with Section 3.15 in an amount up to the Liquidity Reserve Target Amount; or (ii) shall, if the Issuer does not deliver a Liquidity Facility, or delivers a Liquidity Facility or Liquidity Facilities in an amount that is less than the Liquidity Reserve Target Amount, deposit (or cause to be deposited) in the Liquidity Reserve Account, cash in an amount necessary to cause the amount on deposit in the Liquidity Reserve Account (plus the amount of the Liquidity Facilities) to equal the Liquidity Reserve Target Amount as of such date, out of the Net Proceeds of a new Series of Additional Notes and/or from funds contributed by the Member to the Issuer as equity on or prior to such date, as applicable.
(b)On each Payment Date on which the Available Collections Amount is to be distributed pursuant to the Flow of Funds, if (i) the sum of (A) the Liquidity Facility Available Amounts for all Liquidity Facilities plus (B) the Balance in the Liquidity Reserve Account is less than (ii) the Liquidity Reserve Target Amount as of such Payment Date, the Indenture Trustee shall, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e), deposit funds into the Liquidity Reserve Account in order to restore the Balance therein to the
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Liquidity Reserve Target Amount as of such Payment Date, to the extent of the Available Collections Amount as provided in the Flow of Funds.
(c)If the Available Collections Amount on any Payment Date is insufficient to pay (A) the interest then due on the Outstanding Class A Equipment Notes and Outstanding Class B Equipment Notes (excluding, in each case, Additional Interest), (B) the net payments owed by the Issuer under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) and (C) all amounts senior to the interest referred to in clause (A) above (excluding Additional Interest) in the Flow of Funds, the Indenture Trustee shall, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e), effect a draw on the Liquidity Reserve Account and, if necessary, a draw on one or more Liquidity Facilities (including but not limited to amounts on deposit in any Liquidity Facility Collateral Account or such similar account described in any Additional Liquidity Facility), and make a deposit in the Collections Account for allocation as part of the Available Collections Amount on the related Payment Date, in an amount equal to the lesser of (i) the aggregate amount of the shortfalls described in clauses (A), (B) and (C) and (ii) the Balance in the Liquidity Reserve Account and/or the Liquidity Facility Available Amounts for the Liquidity Facilities, as applicable, as of the related Determination Date as set forth in such Payment Date Schedule. If the Balance in the Liquidity Reserve Account and/or the Liquidity Facility Available Amounts for the Liquidity Facilities, as applicable, as of such Determination Date is less than the aggregate amount of such shortfalls for the related Payment Date, then any such balance remaining (after transfer to the Collections Account and allocation and application to amounts senior to interest on the Equipment Notes in the Flow of Funds) will be allocated on such Payment Date, first, pro rata (x) to pay interest then due on the Outstanding Class A Equipment Notes (other than Additional Interest) and (y) to pay such net payments owed by the Issuer under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) and second, to pay interest then due on the Outstanding Class B Equipment Notes (other than Additional Interest). After giving effect to such allocation and payment with respect to the interest then due on the Outstanding Equipment Notes (excluding Additional Interest), (a) any shortfall in the amount available to pay such interest then due on the Outstanding Equipment Notes (excluding Additional Interest) on such Payment Date shall be allocated pro rata among the Outstanding Series of Notes, (b) the amount of such shortfall allocated to each Series of Notes shall be the “Net Stated Interest Shortfall” for such Series of Notes, and (c) the Net Stated Interest Shortfall for each Series of Notes shall be added to the Stated Interest Amount of such Series for the next succeeding Payment Date.
(d)On each Payment Date on which the Available Collections Amount is to be distributed pursuant to the Flow of Funds, before making any distributions pursuant thereto, the Indenture Trustee, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e), shall withdraw from the Liquidity Reserve Account and deposit in the Collections Account the excess, if any, of (A) the sum of the Liquidity Facility Available Amounts for all Liquidity Facilities plus the Balance in the Liquidity Reserve Account (after giving effect to any withdrawals therefrom to be made on such Payment Date pursuant to Section 3.04(c)) over (B) the Liquidity Reserve Target Amount (determined after giving effect to any payments of principal on Equipment Notes to be made on such Payment Date).
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(e)Upon repayment in full of all Outstanding Equipment Notes, the Balance in the Liquidity Reserve Account (after giving effect to any withdrawals therefrom on such date pursuant to Section 3.04(c)), shall be deposited into the Collections Account for allocation pursuant to the Flow of Funds.
(f)The Issuer may attempt to procure a reduction in the amount of the Liquidity Reserve Target Amount from time to time, subject to obtaining a Rating Agency Confirmation and receiving the prior written consent of the Indenture Trustee (to be given only at the Direction of the Requisite Majority), following which the Liquidity Reserve Target Amount shall be the amount as so reduced.
Section 3.05 Optional Reinvestment Account.
(a)The Issuer may elect, by notice to the Indenture Trustee in writing, no later than the end of the Business Day immediately preceding the later of (i) the date of any Permitted Railcar Disposition and (ii) the date on which the relevant Net Disposition Proceeds are received from such Permitted Railcar Disposition, to deposit all or a portion of the Net Disposition Proceeds realized from such Permitted Railcar Disposition (as specified in such notice), whether or not initially deposited in the Collections Account, into the Optional Reinvestment Account. Such notice from the Issuer will include, among other things, the date on which the relevant Replacement Period will conclude. The Indenture Trustee shall deposit in the Collections Account all or any portion of the Net Disposition Proceeds realized from any Permitted Railcar Disposition as to which the direction described in the preceding sentence is not received (and for which such amounts have been identified to the Indenture Trustee in writing to be Net Disposition Proceeds) by the end of the last Business Day preceding the later of (x) the date of any such Permitted Railcar Disposition and (y) the date on which such Net Disposition Proceeds are received in connection with such Permitted Railcar Disposition.
(b)The Issuer may elect, at any time during the related Replacement Period, to apply the Net Disposition Proceeds from an Permitted Railcar Disposition deposited into the Optional Reinvestment Account pursuant to Section 3.05(a) in a Permitted Railcar Acquisition. On each Delivery Date during the Replacement Period on which the Issuer acquires an Additional Railcar from a Seller in a Permitted Railcar Acquisition, the Indenture Trustee, at the written direction of the Administrator accompanied by a written statement of the Administrator that all of the conditions for payment of the Purchase Price for such Additional Railcar specified in the applicable Asset Transfer Agreement have been satisfied, and that the requirements of Section 5.03(b) or 5.03(c), as applicable, have been satisfied, will transfer funds in an amount equal to the Purchase Price for such Additional Railcar from the Optional Reinvestment Account to the applicable Seller.
(c)The Issuer may elect to transfer to the Collections Account any Net Disposition Proceeds previously deposited in the Optional Reinvestment Account pursuant to Section 3.05(a) during the Replacement Period. The Indenture Trustee, without further direction from the Administrator, shall transfer any relevant Net Disposition Proceeds on deposit in the Optional Reinvestment Account remaining at the end of the relevant Replacement Period to the Collections Account on the next Business Day after the end of such Replacement Period. All amounts so transferred to the Collections Account may not be withdrawn therefrom except pursuant to Section 3.14.
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Section 3.06 Expense Account.
(a)On each Closing Date, the Administrator shall direct the Indenture Trustee in writing to (i) pay to such Persons as shall be specified by the Administrator such Issuance Expenses as shall be due and payable in connection with the issuance and sale of the Securities on such Closing Date, and (ii) transfer to the Expense Account the Required Expense Deposit, in each case out of the Net Proceeds of the Securities issued on such Closing Date or the proceeds of a Capital Contribution by the Member to the Issuer or from any combination thereof.
(b)On each Payment Date, the Administrator will, in accordance with the priority of payments set forth in the Flow of Funds, direct the Indenture Trustee, in writing, to pay or reimburse any Operating Expenses that have been actually incurred or that are due and payable on such Payment Date and to transfer to the Expense Account funds in an amount equal to the Required Expense Deposit.
(c)On any Business Day between Payment Dates, the Administrator may direct the Indenture Trustee, in writing, to withdraw funds from the Expense Account in order to pay or reimburse any Operating Expenses that the Administrator certifies in such writing are Operating Expenses that have been actually incurred or that are then due and payable.
(d)On the last Final Maturity Date for all Series of Notes, after payment of all Operating Expenses due on such Final Maturity Date, the Indenture Trustee shall transfer the Balance in the Expense Account to the Collections Account for distribution in accordance with the Flow of Funds.
Section 3.07 Series Accounts.
(a)Upon the issuance of a Series of Notes, the Administrator shall cause to be established and maintained a Series Account for such Series of Notes.
(b)On each Payment Date, amounts will be deposited into each applicable Series Account in accordance with Section 3.08 and Section 3.11.
(c)All amounts transferred to a Series Account for any Series of Notes in accordance with Section 3.08 and Section 3.11 shall be used by the Indenture Trustee for the payment of such Series of Notes (or Class thereof) in accordance with the terms of this Master Indenture and the related Series Supplement.
Section 3.08 Redemption/Defeasance Account.
(a)Upon the sending of a Redemption Notice in respect of any Series of the Securities or any Class thereof, or an election by the Issuer to effect a legal defeasance or covenant defeasance of any Series of the Securities or any Class thereof pursuant to Article 12, the Indenture Trustee will establish a Redemption/Defeasance Account to retain the proceeds to be used in order to redeem or defease such Series or Class. If any cash Capital Contribution is made in connection with any Optional Redemption, the Member will notify the Administrator in writing of the amount thereof, and the Administrator will notify the Indenture Trustee in writing within one Business Day after the making of any such Capital Contribution that such Capital Contribution has been made.
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(b)Amounts shall be deposited into any Redemption/Defeasance Account in accordance with Section 3.13.
(c)On each Redemption Date, the Administrator shall direct the Indenture Trustee in writing to transfer a portion of the proceeds of any Optional Redemption equal to the Redemption Price of such Series of Securities from the Redemption/Defeasance Account, established in respect of such Optional Redemption in accordance with Section 3.13, to the Series Account for such Series (except that an amount equal to the Hedge Termination Value that is owed by the Issuer, if any, included in the Redemption Price concurrently will be directed to be withdrawn from the Redemption/Defeasance Account and paid to the applicable Hedge Provider).
(d)On each Payment Date, in respect of any Series of Securities that is the subject of a legal defeasance or covenant defeasance, the Administrator shall direct the Indenture Trustee in writing to transfer from the Redemption/Defeasance Account to the Series Account or the Certificate Account, as applicable, for such Series, and from such Series Account or the Certificate Account to the Holders of such Securities the payments of principal and interest due on such Securities.
Section 3.09 [Reserved.]
Section 3.10 Calculations.
(a)As soon as reasonably practicable after each Determination Date, but in no event later than 12:00 noon (New York City time) on the third Business Day prior to the immediately succeeding Payment Date, the Issuer shall cause the Administrator, based on information known to it or Relevant Information provided to it, to determine the amount of Collections received during the Collection Period ending immediately prior to such Determination Date (including the amount of any investment earnings on the Balances in the Collections Account, if any, as of such Determination Date) and shall calculate the following amounts:
(i)(A) the Balances in each of the Indenture Accounts on such Determination Date, and (B) the amount of investment earnings (net of losses and investment expenses), if any, on investments of funds on deposit therein during such Collection Period;
(ii)(A) the Required Expense Amount for such Payment Date and (B) the excess, if any, of the Required Expense Reserve for such Payment Date over the Balance in the Expense Account after payment of all Operating Expenses on such Payment Date (the amount described in this clause (B), the “Required Expense Deposit”);
(iii)the Available Collections Amount for such Payment Date, net of the amounts described in Section 4.02(c)(i) if an Event of Default has occurred and is continuing on such Payment Date;
(iv)the Stated Interest Shortfall, if any, for each Series, the amounts, if any, required to be transferred from the Liquidity Reserve Account to the Collections
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Account in respect thereof pursuant to Section 3.04, and the Net Stated Interest Shortfall, if any, for each Series;
(v)all other amounts required to be reported in the Monthly Report and not included on the Payment Date Schedule to be provided pursuant to Section 3.10(e); and
(vi)any other information, determinations and calculations reasonably required in order to give effect to the terms of this Master Indenture and the Operative Agreements, including the preparation of the Monthly Report and Annual Report;
provided that, if the Administrator has not received all of the Relevant Information for such Payment Date, the Administrator shall make reasonable assumptions for purposes of the calculations contemplated by this Section 3.10.
(b)Calculation of Interest Amounts, etc. Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer shall cause the Administrator or the Servicer to make the following calculations or determinations with respect to interest amounts due for each Series or Class on such Payment Date:
(i)the Stated Interest Amount for the Notes, separated by Series and Class; and
(ii)the Additional Interest Amount, if any, separated by Series and Class.
(c)Calculation of Principal Payments and Distributions to the Issuer. Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer shall cause the Administrator or the Servicer to calculate or determine the following with respect to principal payments on the Notes due on such Payment Date and the amounts distributable to the Issuer on such Payment Date:
(i)the Outstanding Principal Balance of each Series of Notes (and Classes within such Series) on such Payment Date immediately prior to any principal payment on such date;
(ii)the amounts of the principal payments, if any, to be made in respect of each Series of Securities (and Classes within such Series) on such Payment Date, including the Scheduled Principal Payment Amounts for each Series of Notes (and Classes within such Series) and any unpaid Scheduled Principal Payment Amounts for each Series of Notes (and Classes within such Series) for prior Payment Dates; and
(iii)the amounts, if any, distributable to the Issuer on such Payment Date.
(d)Calculation of Payment Date Shortfalls. Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer shall cause the Administrator or the Servicer to perform the calculations necessary to determine the following:
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(i)the amount, if any, by which the Stated Interest Amounts due in respect of any Series of Equipment Notes on such Payment Date exceed the Available Collections Amount for such Payment Date remaining after payment in full of all amounts senior thereto in the Flow of Funds, but prior to giving effect to any transfer of funds to the Collections Account from the Liquidity Reserve Account or from the Liquidity Facilities pursuant to Section 3.04 (the “Stated Interest Shortfall”);
(ii)the Net Stated Interest Shortfall in respect of each Series;
(iii)the amount, if any, of payments to the Liquidity Facility Providers and the Hedge Providers that are contemplated to be paid pursuant to the Flow of Funds but will not be paid on such Payment Date out of the Available Collections Amount for such Payment Date;
(iv)the amount, if any, of the Scheduled Principal Payment Amount payable on each Series (separated by Class) that will not be paid on such Payment Date out of the Available Collections Amount for such Payment Date; and
(v)if such Payment Date is the Final Maturity Date for any Series of Notes or Class thereof, the amount, if any, by which the Outstanding Principal Balance of such Series of Notes or Class thereof exceeds the Available Collections Amount after payment in full of amounts senior thereto or pari passu therewith in the Flow of Funds (such remainder, a “Final Principal Payment Shortfall”).
(e)Application of the Available Collections Amount. Not later than 1:00 p.m., New York City time, three Business Days prior to each Payment Date, the Issuer will cause the Administrator (after consultation with the Servicer), to prepare and deliver to the Indenture Trustee the Payment Date Schedule setting forth the payments, transfers, deposits and distributions to be made in respect of the Liquidity Reserve Account pursuant to Section 3.04 or in respect of Net Disposition Proceeds pursuant to Section 3.14(a), and in respect of the Available Collections Amount (after giving effect to such payments, transfers, deposits and distributions, if any) pursuant to the Flow of Funds, and setting forth separately, in the case of payments in respect of each Series of Securities, the amount to be applied on such Payment Date to pay all interest, principal, premium and any other distributions, if any, on such Series of Securities (and each Class thereof), all in accordance with Section 3.11. On each Payment Date, the Indenture Trustee, based solely on the Payment Date Schedule provided by the Administrator for such Payment Date, will make payments, transfers, deposits and distributions in an aggregate amount equal to the Available Collections Amount in accordance with the order of priority set forth in the Flow of Funds. If the Indenture Trustee shall not have received such Payment Date Schedule by the last Business Day preceding any Payment Date, such Payment Date shall be deferred until the next Business Day after such Payment Date Schedule is received by the Indenture Trustee.
(f)Relevant Information. The Issuer shall cause each Service Provider having Relevant Information in its possession to make such Relevant Information available to the Administrator and the Servicer not later than 1:00 p.m., New York City time, at least five Business Days prior to each Payment Date.

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Section 3.11 Payment Date Distributions from the Collections Account.
(a)Regular Distributions. On each Payment Date, so long as no Event of Default has occurred and is continuing, after the withdrawals and transfers provided for in Section 3.02 and 3.04 have been made, the Available Collections Amount (excluding any Net Disposition Proceeds on deposit in the Collections Account as of the Determination Date, which amounts shall be applied pursuant to clause (c) below after giving effect to the application of all amounts pursuant to this clause (a)) will be applied in the following order of priority:
(1)pro rata, to the payment or reimbursement of the portion of the Required Expense Amount described in clause (i) of the definition thereof to the applicable payees, and to the Expense Account in an amount equal to the Required Expense Deposit;
(2)to the payment to the Service Providers of the Service Provider Fees, plus applicable Taxes (to the extent such Taxes are payable by the Issuer to the Service Providers under the Service Provider Agreements), pro rata based on the amount due;
(3)to the repayment of any outstanding Servicer Advances (together with interest thereon as provided in the Servicing Agreement);
(4)pro rata, based on the amount due, (i) to the applicable Series Accounts for the Class A Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class A Equipment Notes of each Series, other than current or past due Additional Interest, (ii) to the Liquidity Facility Providers, all interest owed to the Liquidity Facility Providers in connection with draws under the related Liquidity Facilities for such Liquidity Facility Providers, (iii) to each Hedge Provider, all Senior Hedge Payments and (iv) to the Liquidity Facility Providers, all indemnification obligations payable to the Liquidity Facility Providers in connection with the related Liquidity Facilities; provided that any amounts drawn from the Liquidity Reserve Account or any Liquidity Facility will be applied only to the items described in clauses (i) and (iii) hereof (other than payments of any Hedge Termination Value or Hedge Partial Termination Value);
(5)pro rata based on the amount due, to the applicable Series Accounts for the Class B Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class B Equipment Notes of each Series, other than current or past due Additional Interest;
(6)to first, reimburse or repay pro rata each related Liquidity Facility Provider the principal amounts drawn under any Liquidity Facility and not previously reimbursed, and second, deposit in the Liquidity Reserve Account an amount equal to the positive difference (if any) between (x) the Liquidity Reserve Target Amount (after giving effect to the payments in clause first) and (y) the balance in the Liquidity Reserve Account;
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(7)to the applicable Series Accounts for the Class A Equipment Notes, the Scheduled Principal Payment Amounts on all Series of Outstanding Class A Equipment Notes entitled thereto, first, to the Outstanding Class A Equipment Notes of the earliest issued Series and then to subsequent Series in chronological order of issuance, and second, within each Series, to each Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class;
(8)to pay or reimburse the Servicer for costs of Optional Modifications made or incurred on behalf of the Issuer (as determined by the Administrator and delivered in writing to the Indenture Trustee) to the extent not paid as Ordinary Course Expenses or from any other available source of revenues of the Issuer (the “Servicer Optional Modification Expense”), up to an aggregate amount with respect to all such payments not to exceed two percent (2.00%) of the Initial Appraised Value of all Portfolio Railcars (such amount, the “Servicer Optional Modification Cap”);
(9)to the applicable Series Accounts for the Class A Equipment Notes, for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class A Equipment Notes, first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (9);
(10)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class A Equipment Notes, for the payment of an amount equal to the Outstanding Principal Balance of the Class A Equipment Notes (after the payments in clause (7) above), pro rata according to the Outstanding Principal Balance of all Class A Equipment Notes;
(11)to the applicable Series Accounts for the Class B Equipment Notes, the Scheduled Principal Payment Amounts on all Series of Outstanding Class B Equipment Notes entitled thereto, first, to the Outstanding Class B Equipment Notes of the earliest issued Series and then to subsequent Series in chronological order of issuance, and second, within each Series, to each Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class;
(12)to the applicable Series Accounts for the Class B Equipment Notes, for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class B Equipment Notes, first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided,
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however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (12);
(13)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class B Equipment Notes, for the payment of an amount equal to the Outstanding Principal Balance of the Class B Equipment Notes (after the payments in clause (11) above), pro rata according to the Outstanding Principal Balance of all Class B Equipment Notes;
(14)pro rata based on the amount due, to the applicable Series Accounts for the Class C Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class C Equipment Notes of each Series, other than current or past due Additional Interest;
(15)to the applicable Series Accounts for the Class C Equipment Notes, the Scheduled Principal Payment Amounts on all Series of Outstanding Class C Equipment Notes entitled thereto, first, to the Outstanding Class C Equipment Notes of the earliest issued Series and then to subsequent Series in chronological order of issuance, and second, within each Series, to each Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class;
(16)to the applicable Series Accounts for the Class C Equipment Notes, for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class C Equipment Notes, first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (16);
(17)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class C Equipment Notes, for the payment of an amount equal to the Outstanding Principal Balance of the Class C Equipment Notes (after the payments in clause (15) above), pro rata according to the Outstanding Principal Balance of all Class C Equipment Notes;
(18)to the applicable Series Accounts for the Class A Equipment Notes, the payment of all current and past due Additional Interest due on the Class A Equipment Notes, pro rata based on the amount due;
(19)to the applicable Series Accounts for the Class B Equipment Notes, the payment of all current and past due Additional Interest due on the Class B Equipment Notes, pro rata based on the amount due;
(20)to the applicable Series Accounts for the Class C Equipment Notes, the payment of all current and past due Additional Interest due on the Class C Equipment Notes, pro rata based on the amount due;
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(21)to the applicable Series Accounts for the Class A Equipment Notes, the payment of any Redemption Premium owing to the Holders of the Class A Equipment Notes, pro rata based on the amount due;
(22)to the applicable Series Accounts for the Class B Equipment Notes, the payment of any Redemption Premium owing to the Holders of the Class B Equipment Notes, pro rata based on the amount due;
(23)to the applicable Series Accounts for the Class C Equipment Notes, the payment of any Redemption Premium owing to the Holders of the Class C Equipment Notes, pro rata based on the amount due;
(24)to the Hedge Providers for the payment of Subordinated Hedge Payments, pro rata based on the amount due;
(25)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class (i) first, all current and past due interest on such Series of Subordinated Notes, other than current or past due Additional Interest, pro rata based on the amount due, and (ii) second, if the Subordinated Note Amortization Date has occurred, to the repayment of the Outstanding Principal Amounts of such Series of Subordinated Notes, pro rata based on the amount due;
(26)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class, to the payment of all current and past due Additional Interest due on such Series of Subordinated Notes, pro rata based on the amount due;
(27)pro rata based on the amount due (i) to the Initial Purchasers of the Initial Notes, for the payment of any indemnities of the Issuer payable to such Initial Purchasers of the Initial Notes, and (ii) to the Initial Purchasers of any Additional Series, for the payment of any indemnities of the Issuer payable to such Initial Purchasers;
(28)pari passu and pro rata (as determined by the Administrator and delivered in writing to the Indenture Trustee) to pay or reimburse the Issuer (or the Servicer on its behalf) for costs of Optional Modifications to the extent not paid pursuant to clause (8) or any other available source of revenues of the Issuer;
(29)to pay all other monetary obligations of the Issuer under the Operative Agreements; and
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(30)as determined by the Administrator and delivered in writing to the Indenture Trustee, to the Certificate Account for distribution to the Holders of the Class E Certificates, or as the Holders of the Class E Certificates may otherwise direct.
(b)Event of Default Distributions. On each Payment Date, if an Event of Default has occurred and is then continuing, the Available Collections Amount will be applied in the following order of priority, after payment of the amounts described in Section 4.02(c)(i):
(1)pro rata, to the payment or reimbursement of the portion of the Required Expense Amount described in clause (i) of the definition thereof to the applicable payees, and to the Expense Account in an amount equal to the Required Expense Deposit;
(2)to the payment to the Service Providers of the Service Provider Fees, plus applicable Taxes (to the extent such Taxes are payable by the Issuer to the Service Providers under the Service Provider Agreements), pro rata based on the amount due;
(3)to the repayment of any outstanding Servicer Advances (together with interest thereon as provided in the Servicing Agreement);
(4)pro rata based on the amount due, (i) to the applicable Series Accounts for the Class A Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class A Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full; (ii) to the Liquidity Facility Providers, all interest owed to Liquidity Facility Providers in connection with draws under the related Liquidity Facilities for the Liquidity Facility Providers, together with all principal amounts drawn under any Liquidity Facility and not previously reimbursed, (iii) to the Hedge Providers, all unpaid Senior Hedge Payments and (iv) to the Liquidity Facility Providers, all indemnification obligations payable to the Liquidity Facility Providers in connection with the related Liquidity Facilities; provided that any amounts drawn from the Liquidity Reserve Account or any Liquidity Facility will be applied only to the items described in clauses (i) and (iii) hereof (other than payments of any Hedge Termination Value or Hedge Partial Termination Value);
(5)pro rata based on the Outstanding Principal Balances of the Outstanding Class A Equipment Notes of each Series, to the applicable Series Accounts for the Class A Equipment Notes, the Outstanding Principal Balances of the Class A Equipment Notes until paid in full;
(6)to pay or reimburse the Servicer for Servicer Optional Modification Expenses, up to an aggregate amount with respect to all such payments not to exceed the Servicer Optional Modification Cap;
(7)pro rata based on the amount due, to the applicable Series Accounts, all current and past due interest on the Outstanding Class B
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Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
(8)pro rata based on the Outstanding Principal Balances of the Outstanding Class B Equipment Notes of each Series, to the applicable Series Accounts, the Outstanding Principal Balances of the Class B Equipment Notes until paid in full;
(9)to the applicable Series Accounts for the Class A Equipment Notes, the payment of all current and past due Additional Interest due on the Class A Equipment Notes, pro rata based on the amount due;
(10)to the applicable Series Accounts for the Class B Equipment Notes, the payment of all current and past due Additional Interest due on the Class B Equipment Notes, pro rata based on the amount due;
(11)pro rata based on the amount due, to the applicable Series Accounts, the payment of any Redemption Premium owing to the Holders of the Class A Equipment Notes of the applicable Series;
(12)pro rata based on the amount due, to the applicable Series Accounts, the payment of any Redemption Premium owing to the Holders of the Class B Equipment Notes of the applicable Series;
(13)to the Hedge Providers, the amount of any Subordinated Hedge Payments, pro rata based on the amount due;
(14)pro rata based on the amount due, to the applicable Series Accounts, all current and past due interest on the Outstanding Class C Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
(15)pro rata based on the Outstanding Principal Balances of the Outstanding Class C Equipment Notes of each Series, to the applicable Series Accounts, the Outstanding Principal Balances of the Class C Equipment Notes until paid in full;
(16)to the applicable Series Accounts for the Class C Equipment Notes, the payment of all current and past due Additional Interest due on the Class C Equipment Notes, pro rata based on the amount due;
(17)pro rata based on the amount due, to the applicable Series Accounts, the payment of any Redemption Premium owing to the Holders of the Class C Equipment Notes of the applicable Series;
(18)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class (i) first, all current and past
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due interest on such Series of Subordinated Notes, other than current or past due Additional Interest, pro rata based on the amount due, and (ii) second, to the repayment of the Outstanding Principal Amounts of such Series of Subordinated Notes, pro rata based on the amount due;
(19)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class, to the payment of all current and past due Additional Interest due on such Series of Subordinated Notes;
(20)pro rata based on the amount due (A) to the Initial Purchasers of the Initial Notes, for the payment of any indemnities of the Issuer payable to the Initial Purchasers of the Initial Notes, and (B) to the Initial Purchasers of any Additional Series, for the payment of any indemnities of the Issuer payable to such Initial Purchasers;
(21)pari passu and pro rata (as determined by the Administrator and delivered in writing to the Indenture Trustee) to pay or reimburse the Issuer (or the Servicer on its behalf) for costs of Optional Modifications to the extent not paid pursuant to clause (6) above or from any other available source of revenues of the Issuer;
(22)to pay all other monetary obligations of the Issuer under the Operative Agreements; and
(23)as determined by the Administrator and delivered in writing to the Indenture Trustee, to the Certificate Account for distribution to the Holders of the Class E Certificates, or as the Holders of the Class E Certificates may otherwise direct.
(c)Railcar Disposition Distributions. On each Payment Date, so long as no Event of Default has occurred and is continuing, to the extent that Net Disposition Proceeds have been transferred to the Collections Account during the related Collection Period and without limiting in any way the application of the second to last sentence of Section 3.12, the balance in the Collections Account allocable to such Railcar Dispositions will be applied in accordance with the order of priority set forth below:
(1)pro rata based on the amount due, to the payment or reimbursement of the portion of the Required Expense Amount described in clause (i) of the definition thereof to the applicable payees, and to the Expense Account in an amount equal to the Required Expense Deposit;
(2)pro rata (A) to deposit in the Liquidity Reserve Account an amount equal to the positive difference (if any) between (x) the Liquidity Reserve Target Amount and (y) the sum of (i) the balance in the Liquidity Reserve Account and (ii) the then aggregate Liquidity Facility Available Amounts; and (B) to the
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Liquidity Facility Providers, to reimburse or repay pro rata the Liquidity Facility Providers in an amount equal to all principal and other amounts due to the Liquidity Facility Providers;
(3)pro rata based on the amount due, to (i) the applicable Series Accounts for the Class A Equipment Notes, Class B Equipment Notes and Class C Equipment Notes, an amount equal to 105% of the Allocable Note Balances of the Portfolio Railcars relating to the Railcar Disposition from which the Net Disposition Proceeds were obtained (provided that such amounts shall not exceed the Outstanding Principal Balance of such Class A Equipment Notes, Class B Equipment Notes and Class C Equipment Notes), applied sequentially first, to the Class A Equipment Notes of the earliest issued Series and then to subsequent Series of Class A Equipment Notes in chronological order of issuance, and within each Series by ascending numeric order among any numerical sub-classes of the Class A Equipment Notes in the same Series, but pro rata among any alphabetical sub-classes of the same Class until paid in full, second, to the Class B Equipment Notes of the earliest issued Series and then to subsequent Series of Class B Equipment Notes in chronological order of issuance, and within each Series by ascending numeric order among any numerical sub-classes of the Class B Equipment Notes in the same Series but pro rata among any alphabetical sub-classes of the same numerical Class until paid in full, and third, to the Class C Equipment Notes of the earliest issued Series and then to subsequent Series of Class C Equipment Notes in chronological order of issuance, and within each Series by ascending numeric order among any numerical sub-classes of the Class C Equipment Notes in the same Series but pro rata among any alphabetical sub-classes of the same numerical Class until paid in full and (ii) each Hedge Provider, all Senior Hedge Payments due in respect of Hedge Agreements, including any Hedge Partial Termination Value payable by the Issuer in connection with the partial redemption described in subsection (i) above;
(4)to pay or reimburse the Servicer for Servicer Optional Modification Expenses, up to an aggregate amount with respect to all such payments not to exceed the Servicer Optional Modification Cap;
(5)to the applicable Series Accounts for the Class A Equipment Notes, the payment of any Redemption Premium relating to the Railcar Disposition owing to the Holders of the Class A Equipment Notes, pro rata based on the amount due;
(6)to the applicable Series Accounts for the Class A Equipment Notes for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class A Equipment Notes (after the payments in first clause (3) above), first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes
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of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (6);
(7)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class A Equipment Notes for the payment of an amount equal to the then Outstanding Principal Balance of the Class A Equipment Notes (after the payments in clauses (3) and (6) above), pro rata according to the Outstanding Principal Balance of the Class A Equipment Notes;
(8)to the applicable Series Accounts for the Class B Equipment Notes, for payment of any Redemption Premium relating to the Railcar Disposition owing to the Holders of the Class B Equipment Notes, pro rata based on the amount due;
(9)to the applicable Series Accounts for the Class B Equipment Notes for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class B Equipment Notes (after the payments in first clause (3) above), first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (9);
(10)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class B Equipment Notes for the payment of an amount equal to the then Outstanding Principal Balance of the Class B Equipment Notes (after the payments in clauses (3) and (9) above), pro rata according to the Outstanding Principal Balance of the Class B Equipment Notes;
(11)to the Hedge Providers, the amount of any Subordinated Hedge Payments, pro rata based on the amount due;
(12)pro rata based on the amount due, to the applicable Series Accounts, all current and past due interest on the Outstanding Class C Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
(13)to the applicable Series Accounts for the Class C Equipment Notes, for payment of any Redemption Premium relating to the Railcar Disposition owing to the Holders of the Class C Equipment Notes, pro rata based on the amount due;
(14)to the applicable Series Accounts for the Class C Equipment Notes for the payment of the Outstanding Principal Balance of all Rapid
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Amortization Notes that are Class C Equipment Notes (after the payments in clause (3) above), first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (14);
(15)to the applicable Series Accounts for the Class A Equipment Notes, the payment of all current and past due Additional Interest due on the Class A Equipment Notes, pro rata based on the amount due;
(16)to the applicable Series Accounts for the Class B Equipment Notes, the payment of all current and past due Additional Interest due on the Class B Equipment Notes, pro rata based on the amount due;
(17)to the applicable Series Accounts for the Class C Equipment Notes, the payment of all current and past due Additional Interest due on the Class C Equipment Notes, pro rata based on the amount due;
(18)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class C Equipment Notes for the payment of an amount equal to the then Outstanding Principal Balance of the Class C Equipment Notes (after the payments in clauses (3) and (14) above), pro rata according to the Outstanding Principal Balance of the Class C Equipment Notes;
(19)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class (a) first all current and past due interest on such Series of Subordinated Notes, other than current or past due Additional Interest, pro rata, based on the amount due, (b) second, an amount equal to 105% of the Allocable Subordinated Note Balance of the Portfolio Railcars relating to the Railcar Disposition from which the Net Disposition Proceeds were obtained (provided that such amounts shall not exceed the Outstanding Principal Balance of such Series of Subordinated Notes) and (c) third, if the Subordinated Note Amortization Date has occurred, to the repayment of the Outstanding Principal Amounts of such Series of Subordinated Notes, pro rata, based on the amount due;
(20)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class, to the payment of all
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current and past due Additional Interest due on such Series of Subordinated Notes, pro rata, based on the amount due;
(21)pro rata, based on the amount due, (A) to the Initial Purchasers of the Initial Notes, for the payment of any indemnities of the Issuer payable to the Initial Purchasers of the Initial Notes, and (B) to the Initial Purchasers of any Additional Series, for the payment of any indemnities of the Issuer payable to such Initial Purchasers;
(22)pari passu and pro rata (as determined by the Administrator and delivered in writing to the Indenture Trustee) to pay or reimburse the Issuer (or the Servicer on its behalf) for costs of Optional Modifications to the extent not paid pursuant to clause (4) above or from any other available source of revenues of the Issuer;
(23)to pay all other monetary obligations of the Issuer under the Operative Agreements; and
(24)as determined by the Administrator and delivered in writing to the Indenture Trustee, to the Certificate Account for distribution to the Holders of the Class E Certificates, or as the Holders of the Class E Certificates may otherwise direct.
For the avoidance of doubt, if an Event of Default has occurred and is continuing, the Net Disposition Proceeds will be included in the Available Collections Amount and paid pursuant to Section 3.11(b).
(d)Optional Redemption. On any Redemption Date on which any Series of Equipment Notes or Class thereof is to be the subject of an Optional Redemption, the Administrator shall direct the Indenture Trustee in writing to distribute the amounts in the applicable Redemption/Defeasance Account to (x) the Holders of such Series or Class, as applicable, as provided in the relevant Redemption Notice and (y) to the extent the Redemption Price includes amounts owed to Hedge Providers, to such Hedge Providers.
(e)Payments by Wire Transfer. All payments to be made pursuant to this Section 3.11 to Persons other than Holders shall be made through a wire transfer of funds to the applicable Person. All payments to Holders shall be governed by Section 2.05.
Section 3.12 Optional Redemptions. If permitted under the related Series Supplement and if no Event of Default then exists, the Issuer will have the option to prepay, in whole or part, the Outstanding Principal Balance of any Class of the applicable Series of Equipment Notes in an Optional Redemption; provided that:
(a)any Optional Redemption in whole of the Class B Equipment Notes within a Series shall be subject to an Optional Redemption in whole of the Class A Equipment Notes within such Series, and any Optional Redemption in whole of the Class C Equipment Notes within a Series shall be subject to an Optional Redemption in whole of the Class A Equipment Notes and Class B Equipment Notes within such Series;
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(b)subject to subsection (c) below, (i) an Optional Redemption in part of the Class B Equipment Notes within a Series shall be subject to an Optional Redemption in part of the Class A Equipment Notes within such Series in the same proportion as the Optional Redemption in part of the Class B Equipment Notes, in each case, based on the ratio of (x) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series subject to such Optional Redemption to (y) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series and (ii) an Optional Redemption in part of the Class C Equipment Notes within a Series shall be subject to an Optional Redemption in part of the Class A Equipment Notes and Class B Equipment Notes within such Series in the same proportion as the Optional Redemption in part of the Class C Equipment Notes, in each case, based on the ratio of (x) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series subject to such Optional Redemption to (y) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series;
(c)if an Early Amortization Event is then continuing, the Issuer (x) shall not be permitted to prepay any Class C Equipment Notes until the Outstanding Principal Balance of all Class A Equipment Notes and Class B Equipment Notes shall have been paid in full, (y) shall not be permitted to prepay any Class B Equipment Notes until the Outstanding Principal Balance of all Class A Equipment Notes shall have been paid in full and (z) shall not be permitted to prepay any Class A Equipment Notes of any Series until the Outstanding Principal Balance of all Class A Equipment Notes in all earlier issued Series shall have been paid in full; and
(d)if an Event of Default then exists, the Issuer will have the option to prepay, in whole or in part, the Outstanding Principal Balance of all (but not less than all) Series of Equipment Notes then Outstanding. It is understood that Optional Redemptions do not effect a release of Collateral from the Security Interest of this Master Indenture, unless the subject of such Optional Redemption is a Series of Notes and it results in the repayment in full of all Secured Obligations relating to the Series of Notes being redeemed. Any Optional Redemption in part, if (in the case of Equipment Notes) permitted in accordance with the applicable Series Supplement, will be achieved by a pro rata prepayment of the Outstanding Principal Balance of the applicable Notes.
Section 3.13 Procedure for Redemptions.
(a)Method of Redemption. In the case of any Optional Redemption, the Issuer will deposit, or will cause to be deposited, in the Redemption/Defeasance Account an amount equal to the Redemption Price of the Notes or portion thereof to be redeemed. Once a Redemption Notice in respect of an Optional Redemption is published, the applicable Outstanding Principal Balance of each Series of Notes (or Class thereof) to which such Redemption Notice applies will become due and payable on the Redemption Date stated in such Redemption Notice at its Redemption Price. In the case of a redemption in whole of a Series, all Notes of such Series that are redeemed will be surrendered to the Indenture Trustee for cancellation and will be cancelled by the Indenture Trustee, and accordingly may not be reissued or resold.
(b)Deposit of Redemption Amount. On or before any Redemption Date in respect of an Optional Redemption under Section 3.12, the Issuer shall, to the extent an
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amount equal to the Redemption Price of the Notes to be redeemed and any transaction expenses as of the Redemption Date is not then held by the Issuer or on deposit in the Redemption/Defeasance Account, deposit or cause to be deposited such amount in the Redemption/Defeasance Account.
(c)Notes Payable on Redemption Date. After notice has been given under Section 3.13(d) as to the Redemption Date in respect of any Optional Redemption, the Outstanding Principal Balance of the Notes to be redeemed on such Redemption Date in the amount identified in such notice shall become due and payable on the Redemption Date at the Redemption Price (net of any portion thereof payable to the applicable Hedge Provider) at the Corporate Trust Office of the Indenture Trustee, and from and after such Redemption Date (unless there shall be a default in the payment of the applicable amount to be redeemed) such principal amount shall cease to bear interest. Upon surrender of any Notes for redemption in accordance with such notice, the Redemption Price of such Notes shall be paid in accordance with Section 3.11(d). If any Notes to be redeemed shall not be so paid, or shall only be paid in part in accordance with the terms of such notice, the remaining Outstanding Principal Balance of such Notes shall continue to bear interest from the Redemption Date until it is paid at the interest rate applicable to such Notes.
(d)Redemption Notice. In respect of any Optional Redemption of any Series or Class of Notes to be made out of amounts available for such purposes, the Indenture Trustee will give a Redemption Notice to each Holder of the Notes to be redeemed and to each Hedge Provider and Liquidity Facility Provider, provided that the Indenture Trustee shall have determined in advance of giving any such Redemption Notice whether funds are or will, on the applicable Redemption Date, be available for such Optional Redemption. Such Redemption Notice must be given at least ten (10) days but not more than sixty (60) days before such Redemption Date. Each Redemption Notice must state (i) the applicable Redemption Date, (ii) the Notes being redeemed (which may be some or all of a Series or Class, as permitted by Section 3.12 and any applicable Series Supplement) and, if applicable, the portion of the Outstanding Principal Balance of such Notes that is to be redeemed (and in respect thereof, the Redemption Price (less an amount equal to any portion thereof payable to the applicable Hedge Provider) will be distributed to the Holders of the applicable Notes pro rata in the same manner as partial repayments of principal on the Notes made pursuant to the Flow of Funds and the Indenture Trustee’s notice shall contain information to that effect), (iii) the Indenture Trustee’s arrangements for making payments due on the Redemption Date, (iv) the Redemption Price of the Notes to be redeemed, including a description of the portion thereof, if applicable, that is payable to the applicable Hedge Provider, (v) for an Optional Redemption of an entire Class or Series of Notes or of all Outstanding Notes, that the Notes to be redeemed must be surrendered (which action may be taken by any Holder of the Notes or its authorized agent) to the Indenture Trustee to collect the Redemption Price on such Notes (less an amount equal to any portion thereof payable to the applicable Hedge Provider), and (vi) that, unless the Issuer defaults in the payment of the Redemption Price, if any, interest on the portion of the Outstanding Principal Balance of the Notes called for redemption will cease to accrue on and after the Redemption Date.
(e)Notice to Hedge Providers and Rating Agencies. If so provided in a Series Supplement, the Issuer shall give each applicable Hedge Provider and each applicable Rating
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Agency prior written notice of a redemption of all or a portion of the Notes pursuant to Section 3.13 and 3.14.
Section 3.14 Adjustments in Targeted Principal Balances.
(a)Railcar Dispositions. If Net Disposition Proceeds have been transferred to the Collections Account, then (i) on the next following Payment Date, such Net Disposition Proceeds shall be applied in accordance with Section 3.11(c), unless an Event of Default has occurred and is continuing, in which case, such Net Disposition Proceeds shall be applied in accordance with Section 3.11(b), and (ii) on such Payment Date, the Scheduled Targeted Principal Balance of the Equipment Notes being partially redeemed on such Payment Date will be reduced to, for all subsequent Payment Dates, an amount equal to the result of (x) the Scheduled Targeted Principal Balances of such Notes for each such Payment Date, minus (y) the product of (A) the Redemption Fraction for such Equipment Notes as of each such Payment Date and (B) the Scheduled Targeted Principal Balance of such Equipment Notes for each such Payment Date. If Net Disposition Proceeds are applied to early repayment of Equipment Notes pursuant to this paragraph, then the Issuer shall also be required to pay, in connection with and on the date of the resulting prepayment, Redemption Premium on such prepaid principal amount if at such time an Optional Redemption of the applicable Equipment Notes would also require the payment of a Redemption Premium (with such Redemption Premium, if owing, to be determined in the same manner); provided, however, that notwithstanding anything herein to the contrary, no Redemption Premium will be due (i) as a result of any Permitted Discretionary Sales which in the aggregate are less than 25% of the sum of (x) the Adjusted Value of the Portfolio Railcars owned by the Issuer on the Initial Closing Date calculated as of the Initial Closing Date and (y) the Adjusted Value of the Portfolio Railcars acquired by the Issuer after the Initial Closing Date (if any) calculated as of the relevant Delivery Date or (ii) as a result of any Involuntary Railcar Dispositions, Scrap Value Dispositions or Purchase Option Dispositions, to the extent provided for in the related Series Supplement.
(b)Optional Redemption. In connection with any Optional Redemption in part, the Scheduled Targeted Principal Balance for the remaining Equipment Notes of such Series or Class shall be reduced on the Redemption Date and each subsequent Payment Date to an amount equal to the result of (x) the Scheduled Targeted Principal Balance of such Notes for each such Payment Date minus (y) the product of (A) the Redemption Fraction and (B) the Scheduled Targeted Principal Balance that existed for the Redemption Date or such subsequent Payment Date, as the case may be, immediately prior to such Optional Redemption. No Optional Redemption in part shall occur with respect to a Series or Class unless the Series Supplement for such Series or Class provides for an Optional Redemption in part with respect to such Series or Class, as applicable.
(c)Redemption Fraction. “Redemption Fraction” means, for any Equipment Notes subject to a partial redemption, a fraction, the numerator of which is the principal amount of such Equipment Notes that is being redeemed, and the denominator of which is the Outstanding Principal Balance of such Equipment Notes immediately prior to such partial redemption.
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Section 3.15 Liquidity Facilities. On the Initial Closing Date, the Issuer shall establish the Initial Liquidity Facility and thereafter, the Issuer may enter, from time to time, into one or more additional Liquidity Facility Agreements (each, an “Additional Liquidity Facility”) by entering into transaction documentation (the “Liquidity Facility Documents”) with one or more Additional Liquidity Facility Providers. The following conditions must be satisfied before the Issuer may establish an Additional Liquidity Facility:
(a)the Issuer having obtained Rating Agency Confirmation with respect to all Outstanding Series;
(b)no Servicer Termination Event, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the establishment of the Liquidity Facility, and no Servicer Termination Event, Event of Default or Early Amortization Event would occur as a result of the transactions associated with the establishment of the Additional Liquidity Facility;
(c)the Liquidity Facility Documents related to such Additional Liquidity Facility shall contain provisions (i) addressing the limited recourse nature of the Issuer’s obligation to make payments to the Additional Liquidity Facility Provider, (ii) consistent with the bankruptcy remoteness of the Issuer, (iii) restricting the ability of the Additional Liquidity Facility Provider to assign, transfer or delegate its obligations under such Additional Liquidity Facility, (iv) ensuring that draws on such Additional Liquidity Facility are payable on demand and without the need for a default or event of default to have occurred, (v) setting forth timetables consistent with the Issuer having funds to make timely payments on the Equipment Notes, and (vi) allowing a reasonable period of time for the Issuer to renew or to replace such Additional Liquidity Facility as it nears its stated maturity, and to effect draws under such Additional Liquidity Facility in the event such Additional Liquidity Facility is not timely renewed or replaced, or the Additional Liquidity Facility Provider is downgraded or defaults in its obligations after any applicable grace period; and
(d)the Issuer shall have delivered to the Indenture Trustee, on or prior to the establishment of such Additional Liquidity Facility:
(i)an original copy of the Liquidity Facility Documents for such Additional Liquidity Facility, duly executed by the Issuer and the Additional Liquidity Facility Provider, as applicable;
(ii)an officer’s certificate, duly executed by a Responsible Officer of the Issuer, meeting the requirements of Section 1.03 and stating that (A) the establishment of such Additional Liquidity Facility and the Liquidity Facility Documents are authorized and permitted by this Master Indenture and (B) all conditions precedent in this Master Indenture to (x) the establishment of such Additional Liquidity Facility and (y) the execution, delivery and performance of the Liquidity Facility Documents have been duly satisfied in accordance with the terms of this Master Indenture; and
(iii)one or more Opinions of Counsel, duly executed by counsel to the Issuer, meeting the requirements of Section 1.03 and containing a statement to the effect that (A) the establishment of such Additional Liquidity Facility and the Liquidity Facility Documents are authorized and permitted by this Master Indenture and (B) that
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all conditions precedent in this Master Indenture to (x) the establishment of such Liquidity Facility and (y) the execution, delivery and performance of such Liquidity Facility Documents have been duly satisfied in accordance with the terms of this Master Indenture.
Unless otherwise provided in a Series Supplement, each Liquidity Facility will be secured by the lien of this Master Indenture.
Section 3.16 Hedge Agreements.
(a)On each Closing Date on which the Issuer is issuing Floating Rate Notes, the Issuer must enter into one or more Hedge Agreements with one or more Eligible Hedge Providers and provide notice thereof to each Rating Agency. Each Hedge Agreement will be secured by the lien of this Master Indenture.
(b)For so long as any Series or Class of Floating Rate Notes remains Outstanding, the Issuer must maintain one or more Hedge Agreements with an aggregate notional balance (x) equal to or exceeding the minimum amount (if any) established in connection with the issuance of such Series or Class (the amount described in this clause (x) with respect to such Series or Class, the “Minimum Hedging Amount”) and (y) less than or equal to the maximum amount (if any) established in connection with the issuance of such Series or Class (the amount described in this clause (y) with respect to such Series or Class, the “Maximum Hedging Amount” and, collectively with the Minimum Hedging Amount, the “Hedging Requirement”) for such Series or Class, as applicable). Notwithstanding any other term or provision of this Master Indenture, but subject to Section 10.05, without the consent of Holders, the Issuer and the Indenture Trustee may amend this Master Indenture from time to time, with the prior written consent of all Hedge Providers and subject to receipt of Rating Agency Confirmation, to stipulate different percentages for the Minimum Hedging Amount or the Maximum Hedging Amount for such Series or Class, as applicable.
(c)If the Issuer is not able to meet the Minimum Hedging Amount, with respect to any Series or Class of Floating Rate Notes, it must, within ninety-five (95) days, use reasonable commercial efforts to enter into one or more Hedge Agreements, or, if the reason for such non-compliance is that a Hedge Agreement has terminated in its entirety, but Floating Rate Notes remain Outstanding, enter into one or more replacement Hedge Agreements at least sufficient to meet the Minimum Hedging Amount. If, at the expiration of such ninety-five (95) day period the Issuer has been unable to enter into additional or replacement Hedge Agreements in order to meet the Minimum Hedging Amount, the Requisite Majority (in its sole discretion) may direct the Indenture Trustee in writing on behalf of the Issuer to enter into, maintain or terminate (in whole or in part), one or more Hedge Agreements selected by the Requisite Majority (in its sole discretion) such that, after giving effect to such action, the Issuer will be in compliance with the Hedging Requirement. In the event the Requisite Majority determines to direct the Indenture Trustee to enter into, maintain or terminate (in whole or in part) a Hedge Agreement on the Issuer’s behalf, the Requisite Majority shall promptly send a copy of any such agreement to the Issuer.
(d)If contemplated by a Hedge Agreement, the Issuer may enter into off-setting interest rate transactions in order to comply with the Hedging Requirement.
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(e)Except as otherwise provided in this Master Indenture or the applicable Series Supplement, payments by the Issuer to Hedge Providers shall be made to such Hedge Providers on each Payment Date in accordance with the Flow of Funds and payments by Hedge Providers to the Issuer shall be made to the Collections Account.
(f)If a Hedge Provider is the “defaulting party” or “affected party” under a Hedge Agreement (a “Designated Hedge Agreement”) and, as a result, the Issuer is entitled to terminate such Designated Hedge Agreement, then, promptly after the Issuer becomes aware thereof, the Issuer (i) shall notify the Indenture Trustee and each Rating Agency and (ii) shall use commercially reasonable efforts to arrange for another Eligible Hedge Provider (a “Replacement Hedge Provider”) to enter into a replacement Hedge Agreement (a “Replacement Hedge Agreement”) with the Issuer to the extent that the Issuer would be required to enter into a Hedge Agreement under Section 3.16(c) if the Designated Hedge Agreement were not in effect (and subject to the timing, and the rights of the Requisite Majority, specified in Section 3.16(c)); provided that, subject to the terms of the Designated Hedge Agreement, the Issuer shall terminate such Designated Hedge Agreement at or prior to the time the Issuer enters into such Replacement Hedge Agreement. In connection with any termination in whole of a Hedge Agreement if the Issuer is entering, or will enter, into a Replacement Hedge Agreement, the Administrator, on behalf and at the direction of the Issuer, will establish with the Indenture Trustee a securities and cash account (a “Replacement and Termination Receipts Account”). The Issuer will deposit (or cause to be deposited) in the Replacement and Termination Receipts Account (x) any Hedge Termination Value paid by the Hedge Provider under the terminating Hedge Agreement to the Issuer, which Hedge Termination Value may be used by the Issuer to make payments required to a Replacement Hedge Provider in connection with a Replacement Hedge Agreement; and (y) any initial payment from a Replacement Hedge Provider that will be used to satisfy any obligation to pay a Hedge Termination Value to the Hedge Provider under the terminating Hedge Agreement. A Replacement and Termination Receipts Account will not be considered to be an Indenture Account for purposes of this Master Indenture and funds standing to its credit will not be considered to be Collateral for purposes of this Master Indenture. All amounts from time to time held in each Replacement and Termination Receipts Account shall be held (a) in the name of the Indenture Trustee, for the benefit of the Issuer, and (b) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture.
(g)If a Hedge Provider is required to post collateral under a Hedge Agreement (“Hedge Collateral”), the Administrator, on behalf and at the direction of the Issuer, will establish with the Indenture Trustee a securities and cash account (a “Hedge Collateral Account”). The Hedge Collateral will be deposited in the Hedge Collateral Account; provided that the Hedge Collateral will not be considered to be Collateral for purposes of this Master Indenture and the Hedge Collateral Account will not be considered to be an Indenture Account for purposes of this Master Indenture. All amounts from time to time held in each Hedge Collateral Account shall be held (a) in the name of the Indenture Trustee, for the benefit of the Issuer, and (b) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture. If a Hedge Agreement is terminated and a Hedge Collateral Account has been established with respect to the related Hedge Provider, then either: (x) if a Hedge Termination Value is
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determined to be payable by the Issuer to such Hedge Provider, then the Issuer shall direct the Indenture Trustee in writing to transfer to such Hedge Provider such Hedge Termination Value and, outside of the Flow of Funds, the relevant Hedge Collateral; or (y) if a Hedge Termination Value is determined to be payable by such Hedge Provider to the Issuer, and (A) if such Hedge Provider pays such Hedge Termination Value to the Issuer when due and payable, then the Issuer shall direct the Indenture Trustee in writing to immediately return the relevant Hedge Collateral to such Hedge Provider outside of the Flow of Funds, and (B) if such Hedge Provider does not pay such Hedge Termination Value to the Issuer when due and payable, then the Issuer shall direct the Indenture Trustee in writing to the extent necessary to liquidate such Hedge Collateral and to transfer such Hedge Collateral or the proceeds thereof to the Collections Account in an amount equal to the lesser of (I) such Hedge Termination Value and (II) the amounts standing to the credit of such Hedge Collateral Account (and such Hedge Provider’s obligation to pay such Hedge Termination Value shall be deemed to have been satisfied to the extent, but only to the extent, that such amounts are so transferred to the Collections Account), and the Issuer shall direct the Indenture Trustee in writing to pay any proceeds of such Hedge Collateral in excess of such Hedge Termination Value to such Hedge Provider outside of the Flow of Funds.
Section 3.17 Capital Contributions to Indenture Accounts and/or Portfolio. Nothing contained herein shall restrict the Member at any time from making capital contributions to the Issuer from time to time in the form of funds, Portfolio Railcars or other assets (each such contribution, a “Capital Contribution”). The Member may make such a Capital Contribution by depositing funds into the Indenture Accounts on behalf of the Issuer. For the avoidance of doubt, all Capital Contributions made by the Member after the Initial Closing Date shall be made on a voluntary basis and under no circumstances shall the Member be obligated to, or shall any Issuer or Holder compel the Member to, make any Capital Contribution to the Issuer. Any such Capital Contribution shall increase the Outstanding Stated Amount of the Class E Certificates in the manner set forth in the Certificate Purchase Agreement. On the first Determination Date after the completion of any Required Modification, if any Capital Contribution was made in connection with such Required Modification, the Administrator will allocate all amounts then remaining on deposit in the Expense Account in respect of such Required Modification to the Member.
ARTICLE 4

DEFAULT AND REMEDIES
Section 4.01 Events of Default. Each of the following events shall constitute an “Event of Default” hereunder, and each such 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)failure to pay interest on any Class A Equipment Notes or Class B Equipment Notes then Outstanding (other than Additional Interest, if any, applicable to such Class A Equipment Notes or Class B Equipment Notes), in each case when such amount becomes due and payable, and such default continues for a period of five (5) or more Business Days;
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(b)failure to make payment in full in cash of (i) the Outstanding Principal Balance of the Notes of any Series or Class, and (ii) accrued and unpaid interest on the Notes of any Series or Class (including, for the avoidance of doubt, interest on overdue interest), in each case, on the respective Final Maturity Date of such Series or Class;
(c)failure to pay any other amount (other than the amounts described in clauses (a) and (b)) in connection with the Notes or any amount (other than the amounts described in clause (b)), to the extent that, on any Payment Date, there are amounts available in the Collections Account or (with respect to the Equipment Notes) the Liquidity Reserve Account and Expense Account therefor, or, with respect to any amounts deposited in the Optional Reinvestment Account, the failure to apply such amounts or to transfer such amounts to the Collections Account, as the case may be, in accordance with Section 3.05, and in any such case such default continues for a period of five (5) or more Business Days after such Payment Date;
(d)failure by the Issuer or TILC (in the case of TILC, in respect of Operative Agreements to which either is a party other than any Operative Agreement that is described in clause (k), (m) or (n) below) to comply with any of the other covenants, obligations, conditions or provisions binding on it under this Master Indenture, any Series Supplement, any of the Securities or any other Operative Agreement to which it is a party (other than a payment default for which provision is made in clause (a), (b) or (c) of this Section 4.01, or a default addressed in clause (m) or (n) below), if any such failure continues for a period of thirty (30) days or more after written notice thereof has been given to the Issuer (provided that if such failure is capable of remedy and the Administrator has promptly provided the Indenture Trustee with a certificate stating that the Issuer or TILC, as applicable, has commenced, or will promptly commence, and diligently pursue all reasonable efforts to remedy such failure or breach, then such period of time shall be extended so long as the Issuer or TILC, as applicable, is diligently pursuing such remedy but in any event no longer than sixty (60) days after the date such written notice was given to the Issuer);
(e)any representation or warranty made by the Issuer under this Master Indenture and any Series Supplement or any other Operative Agreement to which it is a party or certificate delivered by it shall prove to be untrue or incorrect in any material respect when made, and such untruth or incorrectness, if curable, shall continue unremedied for a period of thirty (30) days or more after written notice thereof has been given to the Issuer (provided that if such untruth or incorrectness is capable of remedy and the Administrator has promptly provided the Indenture Trustee with a certificate stating that the Issuer has commenced, or will promptly commence, and diligently pursue all reasonable efforts to remedy such untruth or incorrectness, then such period of time shall be extended so long as the Issuer is diligently pursuing such remedy but in any event no longer than sixty (60) days after the date such written notice was given to the Issuer);
(f)a court having jurisdiction in respect of the Issuer enters a decree or order for (i) relief in respect of the Issuer under any Applicable Law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar law now or hereafter in effect; (ii) appointment of a receiver, liquidator, examiner, assignee, custodian, trustee, sequestrator or similar official of the Issuer; or (iii) the
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winding up or liquidation of the affairs of the Issuer and, in each case, such decree or order shall remain unstayed or such writ or other process shall not have been stayed or dismissed within sixty (60) days from entry thereof;
(g)the Issuer (i) commences a voluntary case under any Applicable Law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar law now or hereafter in effect, or consents to the entry of an order for relief in any involuntary case under any such law; (ii) consents to the appointment of or taking possession by a receiver, liquidator, examiner, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for all or substantially all of the property and assets of the Issuer; or (iii) effects any general assignment for the benefit of creditors, admits in writing its inability to pay its debts generally as they come due, voluntarily suspends payment of its obligations or becomes insolvent;
(h)a judgment or order for the payment of money in excess of $1,000,000 shall be rendered against the Issuer and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this Section 4.01(h) if and for so long as (x) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer (subject to customary deductible or co-payment) covering payment thereof and (y) such insurer, which shall be rated at least “A-” by A.M. Best Company or any similar successor entity (or a comparable rating by a nationally or internationally recognized rating group of comparable stature), has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order;
(i)the Issuer is required to register as an investment company under the Investment Company Act of 1940, as amended;
(j)the Issuer shall have asserted that this Master Indenture or any of the other Operative Agreements to which it is a party is not valid and binding on the parties thereto or any court, governmental authority or agency having jurisdiction over any of the parties to the Master Indenture or such other Operative Agreement shall find or rule that any material provision of any of such agreements is not valid or binding on the parties thereto;
(k)the Indenture Trustee, acting at the Direction of a Requisite Majority, shall have elected to remove the Servicer as a result of a Servicer Termination Event (or to remove the Administrator in accordance with the provisions of the Administrative Services Agreement providing for such rights of removal), and a replacement Servicer (or Administrator, as the case may be) shall not have assumed the duties of the Servicer (or Administrator, as the case may be) within one hundred eighty (180) days after the date of such election;
(l)written notice is provided by the Indenture Trustee, acting at the Direction of a Requisite Majority, that as of any Payment Date, the Outstanding Principal Balance of the Equipment Notes exceeds the Aggregate Adjusted Borrowing Value as of such date (and giving effect to repayments of principal to occur on such date);
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(m)TILC (or any successor thereto in its capacity as Servicer) shall have defaulted in any material respect in the performance of any of its obligations under the Marks Servicing Agreement or a default giving rise to a right to take remedial action shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, the Issuer shall have failed to exercise its rights thereunder in respect of such default for a period of thirty (30) days after receipt by the Issuer of written notice from the Indenture Trustee, demanding that such action be taken;
(n)an Insurance Manager Default shall have occurred and be continuing under the Insurance Agreement, and the Issuer shall have failed to exercise its rights under the Insurance Agreement in respect of such Insurance Manager Default for a period of thirty (30) days after receipt by the Issuer of written notice from the Indenture Trustee, demanding that such action be taken; and
(o)the Issuer shall have defaulted in any material respect in the performance of any of its covenants and agreements contained in Section 5.03(a) and such default shall continue unremedied for a period of thirty (30) days.
Section 4.02 Remedies Upon Event of Default.
(a)Upon the occurrence of an Event of Default of the type described in Section 4.01(f) or 4.01(g), the Outstanding Principal Balance of, and accrued interest on, all Series of Notes, together with all other amounts then due and owing to the Holders, shall become immediately due and payable without further action by any Person. If any other Event of Default occurs and is continuing, then the Indenture Trustee, acting at the Direction of the Requisite Majority, may declare the principal of and accrued interest on all Securities then Outstanding to be due and payable immediately, by written notice to the Issuer, the Servicer, the Hedge Providers, the Liquidity Facility Providers and the Administrator (a “Default Notice”), and upon any such declaration such principal and accrued interest shall become immediately due and payable. At any time after the Indenture Trustee has declared the Outstanding Principal Balance of the Notes to be due and payable and prior to the exercise of any other remedies pursuant to this Master Indenture, the Indenture Trustee (at the Direction of the Requisite Majority), by written notice to the Issuer, the Servicer and the Administrator may, except in the case of (i) a default in the deposit or distribution of any payment required to be made on the Securities, (ii) a payment default on the Securities or (iii) a default in respect of any covenant or provision of this Master Indenture that cannot by the terms hereof be modified or amended without the consent of each Holder affected thereby, rescind and annul such declaration and thereby annul its consequences, if (1) there has been paid to or deposited with the Indenture Trustee an amount sufficient to pay all overdue installments of interest on the Securities, and the principal of and premium, if any, on the Securities that would have become due otherwise than by such declaration of acceleration, (2) the rescission would not conflict with any judgment or decree, and (3) all other defaults and Events of Default, other than nonpayment of interest and principal on the Securities that have become due solely because of such acceleration, have been cured or waived.
(b)If an Event of Default shall occur and be continuing, the Indenture Trustee may, and shall, if given a Direction in writing by the Requisite Majority, do any or all of the
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following, provided that the Indenture Trustee shall dispose of the Portfolio Railcars only if it has received a Collateral Liquidation Notice:
(i)Institute any Proceedings, in its own name and as trustee of an express trust, for the collection of all amounts then due and payable on the Securities or under this Master Indenture or the related Series Supplement with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Collateral and any other assets of the Issuer any moneys adjudged due;
(ii)Subject to the quiet enjoyment rights of any Lessee of a Portfolio Railcar, conduct proceedings to sell, hold or lease the Collateral or any portion thereof or rights or interest therein, at one or more public or private transactions conducted in any manner permitted by law; provided that, the Indenture Trustee shall incur no liability as a result of the sale of the Collateral or any part thereof at any sale pursuant to this Section 4.02 conducted in a commercially reasonable manner, and the Issuer hereby waives any claims against the Indenture Trustee arising by reason of the fact that the price at which the Collateral may have been sold at such sale was less than the price that might have been obtained, even if the Indenture Trustee accepts the first offer received and does not offer the Collateral to more than one offeree;
(iii)Institute any Proceedings from time to time for the complete or partial foreclosure of the Encumbrance created by this Master Indenture with respect to the Collateral;
(iv)Institute such other appropriate Proceedings to protect and enforce any other rights, whether for the specific enforcement of any covenant or agreement in this Master Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy;
(v)Exercise any remedies of a secured party under the UCC or any Applicable Law and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee or the Holders under this Master Indenture and any Series Supplement;
(vi)Appoint a receiver or a manager over the Issuer or its assets; and
(vii)Exercise its rights under Section 3.03.
(c)If the Securities have been declared due and payable following an Event of Default, any money collected by the Indenture Trustee pursuant to this Master Indenture or otherwise, and any moneys that may then be held or thereafter received by the Indenture Trustee, shall be applied to the extent permitted by law in the following order, at the date or dates fixed by the Indenture Trustee;
(i)First, to the payment of all costs and expenses of collection incurred by the Indenture Trustee (including the reasonable fees and expenses of any counsel to the Indenture Trustee), and all other amounts due the Indenture Trustee under this Master Indenture and any Series Supplement; and
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(ii)Second, as set forth in the applicable provision of the Flow of Funds.
(d)The Indenture Trustee shall provide each Rating Agency with a copy of any Default Notice it receives or delivers pursuant to this Master Indenture. Within thirty (30) days after the occurrence of an Event of Default in respect of any Series of Notes, the Indenture Trustee shall give notice to the Holders of each Series of Securities of all uncured or unwaived Defaults actually known to a Responsible Officer of the Indenture Trustee on such date; provided that the Indenture Trustee may withhold such notice with respect to a Default (other than a payment default with respect to interest, principal or premium, if any) if it determines in good faith that withholding such notice is in the interest of the affected Holders.
(e)The Issuer hereby agrees that if an Event of Default shall have occurred and is continuing, the Indenture Trustee and any permitted delegee thereof are hereby irrevocably authorized and empowered to act as the attorney-in-fact for the Issuer with respect to the giving of any instructions or notices under this Master Indenture.
(f)If an Event of Default shall have occurred and is continuing, upon the written Direction of the Requisite Majority, the Indenture Trustee shall render an accounting of the current balance of each Indenture Account, and shall direct the Account Collateral Agent to render an accounting of the current balance of the Customer Payment Account.
(g)If an Event of Default shall have occurred and is continuing, and only in such event, upon the written Direction of the Requisite Majority, the Indenture Trustee shall be authorized to take any and all actions and to exercise any and all rights, remedies and options which it may have under this Master Indenture (which rights and remedies shall include the right to direct the withdrawal and disposition of amounts on deposit in the Indenture Accounts and the deposit thereof in the Collections Account, other than amounts on deposit in Series Accounts) and which the Requisite Majority directs it to take in writing under this Master Indenture, including realization and foreclosure on the Collateral.
(h)The Indenture Trustee may after the occurrence of and during the continuance of an Event of Default exercise any and all rights and remedies of the Issuer under or in connection with the Assigned Agreements (including, without limitation, the Servicing Agreement and any successor agreement therefor) and otherwise in respect of the Collateral, including, without limitation, any and all rights of the Issuer to demand or otherwise require payment of any amount under, or performance of any provision of, any Assigned Agreement. In addition, after the occurrence of and during the continuance of an Event of Default, upon the Direction of the Requisite Majority, the Indenture Trustee may exercise all rights of the “lessor” under Leases related to Portfolio Railcars, including, without limitation, the right to direct the applicable Lessees to make rental payments to such account as the Indenture Trustee shall specify, for application to the Collections Account and upon a Servicer Default, or a Servicer Replacement Event (as defined in the Servicing Agreement) in respect of which the Servicer has been replaced, and in each case upon the Direction of the Requisite Majority, the Indenture Trustee may exercise the right of the “lessor” to direct the applicable Lessees to make rental payments to such account as the Indenture Trustee shall specify, for application to the Collections Account.
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(i)If at any time within such period, the Issuer shall commence a voluntary winding-up or other voluntary case or other proceeding under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction seeking liquidation, reorganization or other relief with respect to the Issuer or the Issuer’s debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official of the Issuer or any substantial part of its property or if the Issuer shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against the Issuer, or making a general assignment for the benefit of any creditor of the Issuer under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction, the Indenture Trustee shall continue to retain such Security Interest until otherwise directed by the Requisite Majority and such Security Interest shall be deemed to have continued to have been held as security for the payment and discharge to the Indenture Trustee of all Secured Obligations.
Section 4.03 Limitation on Suits. No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Master Indenture or the Securities, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a)such Holder holds Securities of the Senior Class and has previously given written notice to the Indenture Trustee of a continuing Event of Default;
(b)the Holders of at least 25% of the aggregate Outstanding Principal Balance of the Senior Class give a written Direction to the Indenture Trustee to pursue a remedy hereunder;
(c)such Holder or Holders offer to the Indenture Trustee an indemnity reasonably satisfactory to the Indenture Trustee against any costs, expenses and liabilities to be incurred in complying with such request;
(d)the Indenture Trustee does not comply with such request within sixty (60) days after receipt of the request and the offer of indemnity; and
(e)during such sixty (60) day period, a Requisite Majority does not give the Indenture Trustee a Direction inconsistent with such request.
No one or more Holders may use this Master Indenture to affect, disturb or prejudice the rights of another Holder or to obtain or seek to obtain any preference or priority not otherwise created by this Master Indenture and the terms of the Securities over any other Holder or to enforce any right under this Master Indenture and a related Series Supplement, except in the manner herein provided.
Section 4.04 Waiver of Existing Defaults.
(a)The Indenture Trustee acting at the Direction of the Requisite Majority shall waive any existing Default or Event of Default hereunder and its consequences, except any waiver in respect of a covenant or provision hereof which, pursuant to Section 9.02(a),
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cannot be modified or amended without the consent of such Persons as are required to amend such covenant or provision in addition to the consent of the Requisite Majority.
(b)Upon any waiver made in accordance with Section 4.04(a), such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Master Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. Each such notice of waiver shall also be notified to each Rating Agency.
(c)Any written waiver of a Default or an Event of Default given by Holders of the Securities to the Indenture Trustee and the Issuer in accordance with the terms of this Master Indenture shall be binding upon the Indenture Trustee and the other parties hereto. Unless such writing expressly provides to the contrary, any waiver so granted shall extend only to the specific event or occurrence which gave rise to the Default or Event of Default so waived and not to any other similar event or occurrence which occurs subsequent to the date of such waiver.
Section 4.05 Restoration of Rights and Remedies. If the Indenture Trustee or any Secured Party has instituted any proceeding to enforce any right or remedy that it has, if any, under this Master Indenture and any Series Supplement, and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Indenture Trustee or such Secured Party, then in every such case the Issuer, the Indenture Trustee and each such Secured Party shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and each such Secured Party shall continue as though no such proceeding has been instituted.
Section 4.06 Remedies Cumulative. Each and every right, power and remedy herein given to the Indenture Trustee (or the Control Parties or the Requisite Majority), the Hedge Providers, the Liquidity Facility Providers and the other Secured Parties, if applicable, specifically or otherwise in this Master 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 (or the Control Parties or the Requisite Majority), the Hedge Providers, the Liquidity Facility Providers and the other Secured Parties, if applicable, 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 same time or thereafter any other right, power or remedy. No delay or omission by the Indenture Trustee (or the Control Parties or the Requisite Majority), a Hedge Provider, a Liquidity Facility Provider or any other Secured Party, if applicable, in the exercise of any such right, remedy or power or in the pursuance of any such remedy shall impair any such right, power or remedy or be construed to be a waiver of any Default on the part of the Issuer or to be an acquiescence.
Section 4.07 Authority of Courts Not Required. The parties hereto agree that, to the greatest extent permitted by law, the Indenture Trustee shall not be obliged or required to seek or obtain the authority of, or any judgment or order of, the courts of any jurisdiction in order to exercise any of its rights, powers and remedies under this Master Indenture and any Series
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Supplement, and the parties hereby waive any such requirement to the greatest extent permitted by law.
Section 4.08 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Master Indenture, the right of any Holder to receive payment of interest on, principal of, or premium or any other distribution, if any, on the Securities on or after the respective due dates therefor, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 4.09 Indenture Trustee May File Proofs of Claim. The Indenture Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee and of any Holder allowed in any judicial proceedings relating to the Issuer, its creditors or its property.
Section 4.10 Undertaking for Costs. All parties to this Master Indenture agree, and each Holder by its acceptance thereof shall be deemed to have agreed, that in any suit for the enforcement of any right or remedy under this Master Indenture and any Series Supplement or in any suit against the Indenture Trustee for any action taken or omitted by it as Indenture Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defense made by the party litigant. This Section 4.10 does not apply to a suit instituted by the Indenture Trustee, a suit instituted by any Holder for the enforcement of the payment of interest, principal, premium or any other amounts, if any, on the Securities on or after the respective due dates expressed in such Securities, to the extent applicable, or a suit by a Holder or Holders of more than 10% of the Outstanding Principal Balance of any Series of Notes or the Outstanding Stated Amount of the Class E Certificates (exclusive of Securities or interests therein held by any Issuer Group Member).
Section 4.11 Purchase Right of Class B Holders. Each Holder of a Class B Equipment Note (other than any Class B Equipment Note held by the Issuer or an Affiliate of the Issuer) will have the right (the “Class B Purchase Right”) on any date occurring on or after the date of the occurrence of an Event of Default that is continuing as of the date of purchase, upon at least twenty (20) days’ written notice to the Indenture Trustee (with a copy to the Issuer), to purchase all, but not less than all, of the Class A Equipment Notes of all Outstanding Series for a purchase price equal to the aggregate Outstanding Principal Balance of all such Class A Equipment Notes, plus accrued and unpaid interest (at the applicable rate of interest for the related sub-class of Class A Equipment Notes) on such Outstanding Principal Balance together with any Additional Interest due and payable to the Holders of the Class A Equipment Notes (any such principal and interest in respect of any such sub-class of Class A Equipment Notes and Additional Interest, the “Class B Purchase Right Outstanding Priority Balance”); provided that (i) if prior to the end of such twenty (20) day period any other Holder of a Class B Equipment Note (other than any Class B Equipment Note held by the Issuer or an Affiliate of the Issuer) notifies such purchasing Holder of a Class B Equipment Note that such other Holder of a Class B Equipment Note wants to participate in such purchase, then such other
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Holder of a Class B Equipment Note may join with the purchasing Holder of a Class B Equipment Note (any such purchasing Holders of a Class B Equipment Note shall be collectively referred to as the “Class B Purchasers”) in exercising the Class B Purchase Right and (ii) if prior to the end of such twenty (20) day period any other Holder of a Class B Equipment Note fails to notify the Class B Purchasers of such other Holder of a Class B Equipment Note’s desire to participate in such a purchase, then such other Holder of a Class B Equipment Note designated shall lose its right to purchase the Class A Equipment Notes of all Outstanding Series. As a condition precedent to such purchase, all interest and principal amounts due and payable to the Liquidity Facility Providers will have been paid in full by such Class B Purchasers and all Liquidity Facilities shall have been terminated or cancelled in full. Upon receipt of any such notice, the Administrator will calculate the then Class B Purchase Right Outstanding Priority Balance. Payment of the Class B Purchase Right Outstanding Priority Balance will in each case be made ratably by each Class B Purchaser based on the ratio of the Outstanding Principal Balance of the Class B Equipment Notes held by such Class B Purchaser to the Outstanding Principal Balance of the Class B Equipment Notes held by all Class B Purchasers. Following all Class B Purchasers’ payment of their portion of the Class B Purchase Right Outstanding Priority Balance, each applicable Class B Purchaser shall be the Holder of the applicable Class A Equipment Notes and shall be entitled to all rights and interests to which a Holder of the Class A Equipment Notes would be entitled.
Section 4.12 Purchase Right of Class C Holders. Each Holder of a Class C Equipment Note (other than any Class C Equipment Note held by the Issuer or an Affiliate of the Issuer) will have the right (the “Class C Purchase Right”) on any date occurring on or after the date of the occurrence of an Event of Default that is continuing as of the date of purchase, upon at least twenty (20) days’ written notice to the Indenture Trustee (with a copy to the Issuer), to purchase all, but not less than all, of the Class A Equipment Notes and the Class B Equipment Notes of all Outstanding Series for a purchase price equal to the aggregate Outstanding Principal Balance of all such Class A Equipment Notes and Class B Equipment Notes, plus accrued and unpaid interest (at the applicable rate of interest for the related sub-class of Class A Equipment Notes and Class B Equipment Notes) on such Outstanding Principal Balance together with any Additional Interest due and payable to the Holders of the Class A Equipment Notes and the Class B Equipment Notes (any such principal and interest in respect of any such sub-class of Class A Equipment Notes and Class B Equipment Notes and Additional Interest, the “Class C Purchase Right Outstanding Priority Balance”); provided that (i) if prior to the end of such twenty (20) day period any other Holder of a Class C Equipment Note (other than any Class C Equipment Note held by the Issuer or an Affiliate of the Issuer) notifies such purchasing Holder of a Class C Equipment Note that such other Holder of a Class C Equipment Note wants to participate in such purchase, then such other Holder of a Class C Equipment Note may join with the purchasing Holder of a Class C Equipment Note (any such purchasing Holders of a Class C Equipment Note shall be collectively referred to as the “Class C Purchasers”) in exercising the Class C Purchase Right and (ii) if prior to the end of such twenty (20) day period any other Holder of a Class C Equipment Note fails to notify the Class C Purchasers of such other Holder of a Class C Equipment Note’s desire to participate in such a purchase, then such other Holder of a Class C Equipment Note designated shall lose its right to purchase the Class A Equipment Notes and the Class B Equipment Notes of all Outstanding Series. As a condition precedent to such purchase, all interest and principal amounts due and
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payable to the Liquidity Facility Providers will have been paid in full by such Class C Purchasers and all Liquidity Facilities shall have been terminated or cancelled in full. Upon receipt of any such notice, the Administrator will calculate the then Class C Purchase Right Outstanding Priority Balance. Payment of the Class C Purchase Right Outstanding Priority Balance will in each case be made ratably by each Class C Purchaser based on the ratio of the Outstanding Principal Balance of the Class C Equipment Notes held by such Class C Purchaser to the Outstanding Principal Balance of the Class C Equipment Notes held by all Class C Purchasers. Following all Class C Purchasers’ payment of their portion of the Class C Purchase Right Outstanding Priority Balance, each applicable Class C Purchaser shall be the Holder of the applicable Class A Equipment Notes and Class B Equipment Notes and shall be entitled to all rights and interests to which a Holder of the Class A Equipment Notes and the Class B Equipment Notes would be entitled. The rights of the Class C Purchasers pursuant to this Section 4.12 shall continue regardless of whether any Holder of Class B Equipment Notes previously exercised the Class B Purchase Right pursuant to Section 4.11.
Section 4.13 Purchase Rights of the Holder of the Class E Certificates. Upon the occurrence of an Event of Default, each Holder of a Class E Certificate will have the right (the “Class E Purchase Right”) on any date occurring on or after the date of the occurrence of an Event of Default that is continuing as of the date of purchase, upon at least twenty (20) days’ written notice to the Indenture Trustee (with a copy to the Issuer), to purchase all, but not less than all, of the Equipment Notes of all Outstanding Series for a purchase price equal to the aggregate Outstanding Principal Balance of all such Equipment Notes, plus accrued and unpaid interest (at the applicable rate of interest for the related sub-class of Equipment Notes) on such Outstanding Principal Balance together with any Additional Interest due and payable to the Holders of the Equipment Notes (any such principal and interest in respect of any such sub-class of Equipment Notes and Additional Interest, the “Class E Purchase Right Outstanding Priority Balance”); provided that (i) if prior to the end of such twenty (20) day period any other Holder of a Class E Certificate notifies such purchasing Holder of a Class E Certificate that such other Holder of a Class E Certificate wants to participate in such purchase, then such other Holder of a Class E Certificate may join with the purchasing Holder of a Class E Certificate (any such purchasing Holders of a Class E Certificate shall be collectively referred to as the “Class E Purchasers”) in exercising the Class E Purchase Right and (ii) if prior to the end of such twenty (20) day period any other Holder of a Class E Certificate fails to notify the Class E Purchasers of such other Holder of a Class E Certificate’s desire to participate in such a purchase, then such other Holder of a Class E Certificate designated shall lose its right to purchase the Equipment Notes of all Outstanding Series. As a condition precedent to such purchase, all interest and principal amounts due and payable to the Liquidity Facility Providers will have been paid in full by such Class E Purchasers and all Liquidity Facilities shall have been terminated or cancelled in full. Upon receipt of any such notice, the Administrator will calculate the then Class E Purchase Right Outstanding Priority Balance. Payment of the Class E Purchase Right Outstanding Priority Balance will in each case be made ratably by each Class E Purchaser based on the ratio of the Outstanding Principal Balance of the Class E Equipment Notes held by such Class E Purchaser to the Outstanding Principal Balance of the Class E Equipment Notes held by all Class E Purchasers. Following all Class E Purchasers’ payment of their portion of the Class E Purchase Right Outstanding Priority Balance, each applicable Class E Purchaser shall be the Holder of the
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applicable Equipment Notes and shall be entitled to all rights and interests to which a Holder of the Equipment Notes would be entitled. The rights of the Class E Purchasers pursuant to this Section 4.13 shall continue regardless of whether (x) any Holder of Class B Equipment Notes previously exercised the Class B Purchase Right pursuant to Section 4.11 or (y) any Holder of Class C Equipment Notes previously exercised the Class C Purchase Right pursuant to Section 4.12.
ARTICLE 5

REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.01 Representations and Warranties. The Issuer represents and warrants to the Indenture Trustee as of each Closing Date, and each Delivery Date, as follows:
(a)Due Organization.
(i)The Issuer is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, is duly licensed or qualified and in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its ability to carry on its business as now conducted or to enter into and perform its obligations under the Issuer Documents and the Operative Agreements to which the Issuer is a party, has the organizational power and authority to carry on its business as now conducted, has the requisite organizational power and authority to execute, deliver and perform its obligations under the Issuer Documents and the Operative Agreements to which the Issuer is a party.
(ii)Each of the LLC Agreement and each other organizational document of the Issuer has been duly executed and delivered by each party thereto and constitutes a legal, valid and binding obligation of each such party enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity.
(iii)Since the date of formation of the Issuer, the Issuer has not conducted business under any other name and does not have any trade names, or “doing business under” or “doing business as” names. The Issuer has not reorganized in any jurisdiction (whether the United States, any state therein, the District of Columbia, Puerto Rico, Guam or any possession or territory of the United States, or any foreign country or state) other than the State of Delaware.
(b)Special Purpose Status. The Issuer has not engaged in any activities since its organization (other than those incidental to its organization and other appropriate limited liability company steps and arrangements for the payment of fees to, and director’s and officer’s insurance for, its member, special member and manager), the execution of (i) the Issuer Documents and the Operative Agreements to which it is a party and (ii) the Issuer Documents and the Operative Agreements (in each case, as defined in the 2012 Master Indenture) to which it is a party and, in either case, the activities referred to in or contemplated by such agreements.
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(c)Non-Contravention. The Issuer’s acquisition of Railcars pursuant to an Asset Transfer Agreement, the other transactions contemplated by each Asset Transfer Agreement, the creation of the Securities and the issuance, execution and delivery of, and the compliance by the Issuer with the terms of each of the Operative Agreements and the Securities:
(i)do not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, the constitutional documents of the Issuer or with any existing law, rule or regulation applying to or affecting the Issuer or any judgment, order or decree of any government, governmental body or court having jurisdiction over Issuer;
(ii)do not infringe the terms of, or constitute a default under, any deed, indenture, agreement or other instrument or obligation to which the Issuer is a party or by it or its assets, property or revenues are bound; and
(iii)do not constitute a default by the Issuer under, or result in the creation of any Encumbrance (except for Permitted Encumbrances of the type described in clause (i), (ii) or (v) of the definition thereof) upon the property of the Issuer under its organizational documents or any indenture, mortgage, contract or other agreement or instrument to which the Issuer is a party or by which the Issuer or any of its properties may be bound or affected.
(d)Due Authorization. The Issuer’s acquisition of Railcars pursuant to an Asset Transfer Agreement, the other transactions contemplated by each Asset Transfer Agreement, the creation, execution and issuance of the Securities, the execution and issue or delivery by the Issuer of the Operative Agreements executed by it and the performance by it of its obligations hereunder and thereunder and the arrangements contemplated hereby and thereby to be performed by it have been duly authorized by all necessary limited liability company action of the Issuer.
(e)Validity and Enforceability. This Master Indenture constitutes, and the Operative Agreements, when executed and delivered and, in the case of the Securities, when issued and authenticated, will constitute valid, legally binding and (subject to general equitable principles, insolvency, liquidation, reorganization and other laws of general application relating to creditors’ rights or claims or to laws of prescription or the concepts of materiality, reasonableness, good faith and fair dealing) enforceable obligations of the Issuer.
(f)No Event of Default or Early Amortization Event. No Event of Default or Early Amortization Event has occurred and is continuing and no event has occurred that with the passage of time or notice or both would become an Event of Default or Early Amortization Event.
(g)No Encumbrances. Subject to the Security Interests created in favor of the Indenture Trustee and the Flow of Funds, and except for Permitted Encumbrances, there exists no Encumbrance over the assets of the Issuer that ranks prior to or pari passu with the obligation to make payments on the Securities.
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(h)No Consents. No consent, approval or authorization of, or filing, registration or qualification with, or the giving of notice to, any trustee or any holder of indebtedness of the Issuer or any governmental authority on the part of the Issuer is required in the United States, Canada or Mexico (subject to the proviso set forth below) in connection with the execution and delivery by the Issuer of the Operative Agreements to which the Issuer is a party or in order for the Issuer to perform its obligations thereunder in accordance with the terms thereof, other than: (i) notices required to be filed with the STB and the Registrar General of Canada, which notices shall have been filed on the applicable Closing Date, (ii) as may be required under existing laws, ordinances, governmental rules and regulations to be obtained, given, accomplished or renewed at any time after the applicable Closing Date in connection with the operation and maintenance of the Portfolio Railcars and in accordance with the Operative Agreements that are routine in nature and are not normally applied for prior to the time they are required, and which the Issuer has no reason to believe will not be timely obtained, (iii) as may be required under the Operative Agreements in consequence of any transfer of ownership of the Portfolio Railcars and (iv) filing and recording to perfect the Security Interests under this Master Indenture and any Series Supplement as required hereunder; provided, that the parties hereto agree that the Issuer shall not be required to make any such filings or recordings in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada.
(i)No Litigation. There is no claim, action, suit, investigation or proceeding pending against, or to the knowledge of the Issuer, threatened against or affecting the Issuer, before any court or arbitrator or any governmental body, agency or official which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated by this Master Indenture (including the Exhibits and Schedules attached hereto) and/or the Operative Agreements.
(j)Employees, Subsidiaries. The Issuer has no employees. The Issuer has no Subsidiaries.
(k)Ownership. The Issuer is the owner of the Collateral free from all Encumbrances and claims whatsoever other than Permitted Encumbrances.
(l)No Filings. Under the laws of Delaware, Texas and New York (and including U.S. federal law) in force at the date hereof, it is not necessary or desirable that this Master Indenture or any Operative Agreement to which the Issuer is a party be filed, recorded or enrolled with any court or other authority in any such jurisdictions or that any material stamp, registration or similar tax be paid on or in relation to this Master Indenture or any of the other Operative Agreements (other than filings of UCC financing statements and with the STB and in Canada in respect of the Security Interests in the Portfolio Railcars).
(m)Other Representations. The representations and warranties made by the Issuer in any of the other Operative Agreements are true and accurate as of the date made.
(n)Other Regulations. The Issuer is not an “investment company,” or an “affiliated person” of, or a “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
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(o)Insurance. The Portfolio Railcars described on each Delivery Schedule delivered from time to time under an Asset Transfer Agreement are, at the time of the related Conveyance to the Issuer, covered by the insurance required by Section 5.04(f), and all premiums due prior to the applicable Delivery Date in respect of such insurance shall have been paid in full and such insurance as of the applicable Delivery Date is in full force and effect.
(p)No Event of Default or Total Loss. At the time of each Conveyance of Railcars under an Asset Transfer Agreement, (i) no Event of Default has occurred and is continuing, (ii) no Servicer Default (in the case of Conveyances other than on a Closing Date) or Servicer Termination Event (in the case of Conveyances on a Closing Date) has occurred and is continuing, (iii) to the knowledge of the Issuer, no Total Loss or event that, with the giving of notice, the passage of time or both, would constitute a Total Loss with respect to any of the Railcars so Conveyed, has occurred, and (iv) to the knowledge of the Issuer, no Railcar being Conveyed under an Asset Transfer Agreement on such date has suffered damage or contamination which, in the Issuer’s reasonable judgment, makes repair uneconomic or renders such Railcar unfit for commercial use.
(q)Beneficial Title. On each Delivery Date upon which a Conveyance occurs under an Asset Transfer Agreement, (i) the applicable Seller has, and shall pursuant to its related Bill of Sale have, conveyed all legal and beneficial title of the Issuer to such Railcars being so Conveyed free and clear of all Encumbrances (other than Permitted Encumbrances) and such Conveyance will not be void or voidable under any applicable law and (ii) the applicable Seller has assigned, and the Assignment and Assumption to be delivered on the related Delivery Date shall upon acceptance thereof by the Issuer assign, to the Issuer, all legal and beneficial title of such Seller to the related Leases, free and clear of all Encumbrances (other than Permitted Encumbrances), and the Assignment and Assumption will not be void or voidable under any applicable law.
(r)Nature of Business. The Issuer is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Securities will be used by the Issuer for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System (terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, being used in this Section 5.01(r) with such meanings).
(s)No Default under Organizational Documents. The Issuer is not in violation of any term of any of its organizational documents or in violation or breach of or in default under any other agreement, contract or instrument to which it is a party or by which it or any of its property may be bound.
(t)Issuer Compliance. The Issuer is in compliance in all material respects with all laws, ordinances, governmental rules, regulations, orders, judgments, decrees, determinations and awards to which it is subject, and the Issuer has obtained all required licenses, permits, franchises and other governmental authorizations material to the conduct of its business.
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(u)Railcar Compliance; Autoracks. Each Railcar Conveyed on a Delivery Date, taken as a whole, and each major component thereof complies in all material respects with all applicable laws and regulations, all requirements of the manufacturer for maintaining in full force and effect any applicable warranties and the requirements, if any, of any applicable insurance policies, conforms with the specifications for such Railcar contained in the related Appraisal (to the extent a copy of such Appraisal or a relevant excerpt therefrom has been delivered to the Issuer) and is substantially complete such that it is ready and available to operate in commercial service and otherwise perform the function for which it was designed; and the railcar identification marks shown on the related Bill of Sale are the marks then used on the Portfolio Railcars set forth on such Bill of Sale. Each Portfolio Railcar that is an autorack qualifies for the National Reload Pool.
(v)Taxes. On each Delivery Date upon which a Conveyance occurs under an Asset Transfer Agreement, all sales, use or transfer taxes, if any, due and payable upon the purchase of the Portfolio Railcars by the Issuer from the applicable Seller will have been paid or such transactions will then be exempt from any such taxes, and the Issuer will cause any required forms or reports in connection with such taxes to be filed in accordance with applicable laws and regulations.
(w)Lease Terms. Except where a Railcar is being conveyed on a Closing Date and the related Series Supplement references this Section 5.01(w) and permits an exception hereto, each Railcar Conveyed on the relevant Delivery Date is subject to a Permitted Lease, which Lease (together with the other Leases that are or have been the subject of such Conveyances) contains rental and other terms which are no different, taken as a whole, from those for similar railcars in the Servicer’s Fleet.
(x)Eligibility. Each Railcar described on its relevant Delivery Schedule constitutes an Eligible Railcar as of the date of its Conveyance to the Issuer.
(y)Assignment of Leases. (i) Each Lease conveyed on the relevant Delivery Date is freely assignable from the applicable Seller to the Issuer and from the Issuer to any other Person (including, without limitation, any transferee in connection with the Indenture Trustee’s exercise of rights or remedies under this Master Indenture and any Series Supplement) or, if any such Lease is not freely assignable, then consents to such assignments determined by the Servicer in good faith to be sufficient for their intended purposes have been obtained prior to the relevant Delivery Date, (ii) no assignment described in this Section 5.01(y) is void or voidable or will result in a claim for damages or reduction in rental or other payments, in each case pursuant to the terms and conditions of any such Lease and (iii) no consent, approval or filing is required under such Lease in connection with the execution and delivery of the Operative Agreements.
(z)Purchase Options. With respect to any Portfolio Railcars that are subject to a purchase option granted to the Lessee under the relevant Lease, such purchase option is exercisable by the applicable Lessee for a purchase price not less than (at the time of such purchase) the greater of (1) an appraiser’s estimate at Lease inception of fair market value at the time of potential exercise under the option provision, and (2) (A) one hundred five percent (105%) of the product of the Allocable Note Balance of the Portfolio Railcars subject to such purchase option, plus (B) one hundred five percent (105%) of the product of the Allocable
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Subordinated Note Balance of the Portfolio Railcars subject to such purchase option, plus (C) any Hedge Partial Termination Value that would be owed by the Issuer to Hedge Providers, if applicable, plus (D) an amount equal to any Redemption Premium that would be payable on the Equipment Notes if on the date such purchase option is exercised, an Optional Redemption of the applicable Equipment Notes would require the payment of a Redemption Premium (with such amount, if any, to be determined in the same manner as the Redemption Premium related to an Optional Redemption). Any such purchase option complying with each of the foregoing limitations referred to herein and in the other Operative Agreements as a “Permitted Purchase Option.”
(aa)No Other Financing of Lease; Permitted Lease. After giving effect to the transfers contemplated under the Operative Agreements, (i) the Leases being Conveyed to the Issuer on any applicable Delivery Date (as evidenced by the Riders or Schedules with respect thereto) are not subject to and do not cover railcars financed in, any financing or securitization transaction other than to the extent constituting a Permitted Encumbrance and other than the transactions contemplated by the Operative Agreements and (ii) such Leases conform to the definition of Permitted Lease (provided that up to 5% of the aggregate number of Portfolio Railcars may be subject to a Lease other than a Permitted Lease).
(ab)Concentration Limits. After giving effect to the Issuer’s acquisition of Railcars in connection with issuing a Series of Securities on the applicable Closing Date, the Portfolio complies with all Concentration Limits.
(ac)Tax Status. As of the Initial Closing Date, the Issuer: (i) is classified as a disregarded entity for United States federal income tax purposes, and (ii) is not required to withhold on any distributions or allocations to its equity holders, as determined for U.S. federal income tax purposes, under Sections 1441, 1442, 1445, 1446, 1471 or 1472 of the Code.
Section 5.02 General Covenants. The Issuer covenants with the Indenture Trustee as follows:
(a)No Release of Obligations. The Issuer will not take any action which would amend, terminate (other than any termination in connection with the replacement of such agreement on terms substantially no less favorable to the Issuer than the agreement being terminated) or discharge or prejudice the validity or effectiveness of this Master Indenture (other than as permitted herein) or any other Operative Agreement or permit any party to any such document to be released from such obligations, except that, in each case, as permitted or contemplated by the terms of such documents, and provided that, in any case, (i) the Issuer will not take any action which would result in any amendment or modification to any conflicts standard or duty of care in such agreements and (ii) there must be at all times an Administrator and a Servicer with respect to all Portfolio Railcars.
(b)Encumbrances. The Issuer will not create, incur, assume or suffer to exist any Encumbrance on the Collateral other than: (i) any Permitted Encumbrance, and (ii) any other Encumbrance the validity or applicability of which is being contested in good faith in appropriate proceedings by any Issuer Group Member (and the proceedings related to such Encumbrance or the continued existence of such Encumbrance does not give rise to any
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reasonable likelihood of the sale, forfeiture or loss of the asset affected by such Encumbrance) and for which the Issuer maintains adequate cash reserves to pay such Encumbrance.
(c)Indebtedness. The Issuer will not incur, create, issue, assume, guarantee or otherwise become liable for or with respect to, or become responsible for the payment of, contingently or otherwise, whether present or future, Indebtedness, other than Indebtedness in respect of the Securities issued in accordance with the terms of this Master Indenture and Indebtedness under any Liquidity Facilities, any Hedge Agreement and the other Operative Agreements.
(d)Restricted Payments. The Issuer will not (i) declare or pay any dividend or make any distribution on its Stock; (ii) purchase, redeem, retire or otherwise acquire for value any membership interest in the Issuer held by or on behalf of Persons other than any Permitted Holder; (iii) make any interest, principal or premium, if any, payment on the Notes or make any voluntary or optional repurchase, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer other than in accordance with the Securities and this Master Indenture or the Operative Agreements; provided that the Issuer may repurchase, defease or otherwise acquire or retire any of the Securities from a source other than from Collections (other than that portion of Collections that would otherwise be distributable to the Issuer in accordance with the Flow of Funds); or (iv) make any investments, other than Permitted Investments and investments permitted under Section 5.02(f).
The term “investment” for purposes of the above restriction shall mean any loan or advance to a Person, any purchase or other acquisition of any Stock or Indebtedness of such Person, any capital contribution to such Person or any other investment in such Person.
(e)Limitation on Dividends and Other Payments. The Issuer will not create or otherwise suffer to exist any consensual limitation or restriction of any kind on the ability of the Issuer to declare or pay dividends or make any other distributions permitted by Applicable Law, other than pursuant to the Operative Agreements.
(f)Business Activities. The Issuer will not engage in any business or activity other than:
(i)purchasing or otherwise acquiring (subject to the limitations on acquisitions of Portfolio Railcars described below), owning, holding, converting, maintaining, modifying, managing, operating, leasing, re-leasing and (subject to the limitations on sales of Portfolio Railcars described below) selling or otherwise disposing of its Portfolio Railcars and entering into all contracts and engaging in all related activities incidental thereto, including from time to time accepting, exchanging, holding promissory notes, contingent payment obligations or equity interests of Lessees or their Affiliates issued in connection with the bankruptcy, reorganization or other similar process, or in settlement of delinquent obligations or obligations anticipated to be delinquent of such Lessees or their respective Affiliates in the ordinary course of business;
(ii)financing or refinancing the business activities described in clause (i) of this Section 5.02(f) through the offer, sale and issuance of one or more
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Series of Securities, upon such terms and conditions as the Issuer sees fit, subject to the limitations of this Master Indenture;
(iii)purchasing, acquiring, surrendering and assigning policies of insurance and assurances with any insurance company or companies which the Issuer or the Insurance Manager determines to be necessary or appropriate to comply with this Master Indenture or the Insurance Agreement and to pay the premiums or the Issuer’s allocable portion thereon;
(iv)entering into Liquidity Facilities;
(v)engaging in currency and interest rate exchange transactions for the purposes of avoiding, reducing, minimizing, hedging against or otherwise managing the risk of any loss, cost, expense or liability arising, or which may arise, directly or indirectly, from any change or changes in any interest rate or currency exchange rate or in the price or value of the property or assets of the Issuer, upon such terms and conditions as the Issuer sees fit and within any limits and with any provisos specified in this Master Indenture or a Series Supplement, including but not limited to dealings, whether involving purchases, sales or otherwise, in foreign currency, spot and forward interest rate exchange contracts, forward interest rate agreements, caps, floors and collars, futures, options, swaps and any other currency, interest rate and other similar hedging arrangements and such other instruments as are similar to, or derivatives of, any of the foregoing, but in any event not for speculative purposes; and
(vi)taking any action that is incidental to, or necessary to effect, any of the actions or activities set forth above.
(g)Limitation on Consolidation, Merger and Transfer of Assets. The Issuer will not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of its property and assets (as an entirety or substantially an entirety in one transaction or in a series of related transactions) to, any other Person, or permit any other Person to merge with or into the Issuer (any such consolidation, merger, sale, conveyance, transfer, lease or other disposition, a “Merger Transaction”), unless:
(i)the resulting entity is a special purpose entity, the charter of which is substantially similar to the LLC Agreement, and, after such Merger Transaction, payments from such resulting entity to the Holders do not give rise to any withholding tax payments less favorable to the Holders than the amount of any withholding tax payments which would have been required had such Merger Transaction not occurred and such entity is not subject to taxation as a corporation or an association or a publicly traded partnership taxable as a corporation;
(ii)(A) such Merger Transaction has been unanimously approved by the board of managers of the Issuer and (B) the surviving successor or transferee entity shall expressly assume all of the obligations of the Issuer in and under this Master Indenture and any Series Supplement, the Securities and each other Operative Agreement to which the Issuer is then a party (with the result that, in the case of a transfer only, the Issuer thereupon will be released);
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(iii)both before, and immediately after giving effect to such Merger Transaction, no violation of a Concentration Limit, Event of Default or Early Amortization Event shall have occurred and be continuing;
(iv)each of (A) a Rating Agency Confirmation and (B) the consent of the Indenture Trustee (acting at the Direction of a Requisite Majority) has been obtained with respect to such Merger Transaction;
(v)for U.S. Federal income tax purposes, such Merger Transaction does not result in the recognition of gain or loss by any Holder; and
(vi)the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that such Merger Transaction complies with the above criteria and, if applicable, Section 5.03(a) and that all conditions precedent provided for herein relating to such transaction have been complied with.
(h)Limitation on Transactions with Affiliates. The Issuer will not, directly or indirectly, enter into, renew or extend any transaction (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with any Affiliate of the Issuer, except upon fair and reasonable terms no less favorable to the Issuer than could be obtained, at the time of such transaction or at the time of the execution of the agreement providing therefor, in a comparable arm’s-length transaction with a Person that is not such an Affiliate, provided, that the foregoing restriction does not limit or apply to the following:
(i)any transaction in connection with the establishment of the Issuer, its initial capitalization and the acquisition of its initial Portfolio or pursuant to the terms of the Operative Agreements;
(ii)the payment of reasonable and customary regular fees to, and the provision of reasonable and customary liability insurance in respect of, the managers/members of the Issuer;
(iii)any payments on or with respect to the Securities or otherwise in accordance with the Flow of Funds;
(iv)any acquisition of Additional Railcars or any Permitted Railcar Acquisition or Permitted Railcar Disposition complying with Section 5.03;
(v)any payments of the types referred to in clause (i) or (ii) of Section 5.02(d) and not prohibited thereunder;
(vi)the sale of Portfolio Railcars as part of a single transaction providing for the redemption or defeasance of Securities in accordance with the terms of this Master Indenture;
(vii)the sale of the Class E Certificates to the Initial Holder;
(viii)the sale of the Subordinated Notes to the Member; or
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(ix)the payment of fees and expenses to TILC as contemplated by any applicable Service Provider Agreement.
(i)Limitation on the Issuance, Delivery and Sale of Equity Interests. Except as expressly permitted by its LLC Agreement, the Issuer will not (1) issue, deliver or sell any Stock or (2) sell, directly or indirectly, or issue, deliver or sell, any Stock, except for the following:
(A)issuances or sales of any additional membership interests to the Member (the “Permitted Holder”); or
(B)contributions, including Capital Contributions, by the Permitted Holder of funds to the Issuer (x) with which to effect a redemption or discharge of the Securities upon any acceleration of the Securities or (y) as otherwise contemplated by this Master Indenture, an Asset Transfer Agreement or the LLC Agreement.
In accordance with the LLC Agreement, no issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer (or other interest in the Issuer treated as equity for U.S. federal income tax purposes) will be effective, and any such issuance, delivery, sale transfer or other disposition will be void ab initio, if it would result in the Issuer being classified as an association (or a publicly traded partnership) taxable as a corporation for U.S. federal income tax purposes or if the Issuer would be required to withhold on any distributions or allocations to its equity holders under Sections 871, 881, 1441, 1442, 1445, 1446, 1471 or 1472 of the Code. In addition, any such issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer, other than to a Permitted Holder, will require Rating Agency Confirmation.
(j)Bankruptcy and Insolvency.
(i)The Issuer will promptly provide the Indenture Trustee and each Rating Agency with written notice of the institution of any proceeding by or against the Issuer seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for all or for any substantial part of its property. The Issuer will not, without obtaining the prior written consent of the Requisite Majority (such consent not to be unreasonably withheld) as well as Rating Agency Confirmation, take any action to waive, repeal, amend, vary, supplement or otherwise modify the provision of its LLC Agreement which requires action or consent of its special member or limits actions of the Issuer with respect to voluntary insolvency proceedings or involuntary insolvency proceedings of the Issuer.
(ii)The Issuer shall cause each party to any Operative Agreement, and each party to any other agreement to which the Issuer is a party that is incidental or related to any Operative Agreement, that in either such case renders the Issuer a debtor to such party, to covenant and agree that it shall not, prior to the date which is one year and one day (or if longer, the applicable preference period then in effect) after the
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payment in full of the Securities, acquiesce, petition or otherwise, directly or indirectly, invoke or cause the Issuer to invoke the process of any governmental authority for the purpose of commencing or sustaining a case against the Issuer under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of its property or ordering the winding up or liquidation of the affairs of the Issuer. This provision shall survive the termination of this Master Indenture.
(k)Payment of Principal, Premium, if any, and Interest. The Issuer will duly and punctually pay the principal, premium, if any, and interest on the Securities in accordance with the terms of this Master Indenture, the applicable Series Supplements and the Securities.
(l)Limitation on Employees. The Issuer will not employ or maintain any employees other than as required by any provisions of local law. Managers, officers and directors of the Issuer shall not be deemed to be employees for purposes of this Section 5.02(l).
(m)Delivery of Rule 144A Information. To permit compliance with Rule 144A in connection with offers and sales of Equipment Notes, the Issuer will promptly furnish upon request of a Holder of Equipment Notes to such Holder and a prospective purchaser designated by such Holder, the information required to be delivered under Rule 144A(d)(4) if at the time of such request the Issuer is not a reporting company under Section 13 or Section 15(d) of the Exchange Act.
(n)Administrator. If at any time there is not a Person acting as Administrator, the Issuer shall promptly appoint a qualified Person to perform any duties under this Master Indenture and any Series Supplement that the Administrator is obligated to perform until a replacement Administrator assumes the duties of the Administrator.
(o)Ratings of Securities. For so long as any Notes are Outstanding, the Issuer shall pay all fees of the applicable Rating Agency and shall respond to reasonable requests for information from the applicable Rating Agency from time to time in order to permit the applicable Rating Agency to maintain a rating with respect to the applicable Series of Securities or Class thereof.
(p)Tax Covenants of the Issuer. The Issuer (i) shall not elect or agree to elect to be classified as an association taxable as a corporation for United States federal income tax or any State income or franchise tax purposes and (ii) shall maintain classification as a disregarded entity or partnership (other than a publicly traded partnership taxable as a corporation) whose sole member(s) are “United States persons” within the meaning of Section 7701(a)(30) of the Code for such purposes. In the event the Issuer is classified as a partnership for United States federal income tax purposes, for any taxable years for which Section 6221 through 6241 of the Code apply to the Issuer, then the Issuer shall timely make, to the extent legally eligible to do so, an election under Section 6221(b) or Section 6226(a) of the Code (or any similar election available pursuant to Treasury Regulations under Section 6221 through 6241 of the Code at such time) with respect to determinations of adjustments at the partnership level.
(q)Separate Entity Characteristics. The Issuer shall at all times:
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(i)not commingle its assets with those of any Person, including any Affiliate, except with respect to the Marks and the Customer Payment Account and as may occur from time to time due to misdirected payments;
(ii)conduct its business separate from any direct or ultimate parent of the Issuer;
(iii)maintain financial statements susceptible to audit, separate from those of any other Person showing its assets and liabilities separate and apart from those of any other Person (it being acknowledged however that nothing herein restricts TILC, Trinity or any of their Affiliates from consolidating the Issuer into any consolidated financial statements they prepare; provided that the Issuer is shown as a separate legal entity);
(iv)pay its own expenses and liabilities and pay the salaries of its own employees, if any, only from its own funds;
(v)maintain an “arm’s-length relationship” with its Affiliates, except as permitted by the Operative Agreements;
(vi)except as contemplated by a Note Purchase Agreement, a Subordinated Note Purchase Agreement or the Certificate Purchase Agreement, not guarantee or become obligated for the debts of any other Person and not hold out its credit as being available to satisfy the debts or any other obligations of any other Person;
(vii)hold itself out as a separate and distinct entity from any other Person (except as otherwise required by applicable tax law, to the extent the Issuer is a disregarded entity for U.S. federal income tax purposes);
(viii)observe all limited liability company and other organizational formalities required by the law of its jurisdiction of formation;
(ix)not acquire obligations or securities of any Person, except Permitted Investments and as otherwise contemplated in the Operative Agreements;
(x)allocate fairly and reasonably any overhead expenses shared with any other Person, if any;
(xi)except for the Security Interests and Permitted Encumbrances, not pledge its assets for the benefit of any other Person or make any loans or advances to any Person except to the extent permitted by the Operative Agreements (but the Issuer may extend or forbear obligations of any Lessees under the related Leases in the ordinary course of business and in accordance with the provisions of the Servicing Agreement);
(xii)correct any known misunderstanding regarding its separate identity from other Persons;
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(xiii)maintain adequate capital in light of its contemplated business operations;
(xiv)maintain books and records (in accordance with generally accepted accounting principles in the United States) separate from any other Person at its principal office which show a true and accurate record in United States dollars of all business transactions arising out of and in connection with the conduct of the Issuer and the operation of its business in sufficient detail to allow preparation of tax returns required to be prepared and the maintenance of the Indenture Accounts;
(xv)maintain bank and other accounts (other than the Indenture Accounts), if any, separate from any other Person;
(xvi)conduct its business in its own name; and
(xvii)not take any actions that would be inconsistent with maintaining the separate legal identity of the Issuer.
Section 5.03 Portfolio Covenants. The Issuer covenants with the Indenture Trustee as follows:
(a)Railcar Dispositions. Except as described in the Granting Clause with respect to the redemption in whole of a Series of Equipment Notes, the Issuer will not sell, transfer or otherwise dispose of any Railcar or any interest therein, except that the Issuer may sell, transfer or otherwise dispose of or part with possession of (i) any Parts, or (ii) one or more Portfolio Railcars, as follows (any such sale, transfer or disposition described in clause (i), (ii), (iii) or (iv) of this Section 5.03(a), a “Permitted Railcar Disposition”):
(i)A Railcar Disposition pursuant to a Permitted Purchase Option (a “Purchase Option Disposition”);
(ii)A Railcar Disposition pursuant to receipt of insurance or other third party proceeds in connection with the Total Loss of a Portfolio Railcar (and any consequent later sale of such affected Railcar for scrap or salvage value) (an “Involuntary Railcar Disposition”);
(iii)A Railcar Disposition in the ordinary course of business (other than a Railcar Disposition as a result of a Total Loss, a Scrap Value Disposition or a Purchase Option Disposition), but only in compliance with the following conditions (a “Permitted Discretionary Sale”):
(A)At the time of such Railcar Disposition, no Event of Default or Early Amortization Event shall have occurred and then be continuing;
(B)With respect to the Portfolio Railcars to be sold pursuant to a Permitted Discretionary Sale (such Portfolio Railcars being referred to below as the “Sold Railcars”), each of the following conditions shall have been satisfied and the Indenture Trustee shall have received an Officer’s Certificate of the Issuer (or the Servicer on its behalf) certifying as to the satisfaction of such conditions:
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(1)The Sold Railcars must be sold by the Issuer to a third party or an Issuer Group Member on an arms-length basis; provided that if the Sold Railcars are to be sold to an Issuer Group Member, the sum of (a) the aggregate sum of the Initial Appraised Value of all Portfolio Railcars that any Issuer Group Member has purchased from the Issuer, and (b) the aggregate Initial Appraised Value of all Sold Railcars to be purchased by any Issuer Group Member from the Issuer may not exceed twenty-five percent (25%) of the highest aggregate Initial Appraised Value of all Portfolio Railcars owned by the Issuer up to the related date of sale; and
(2)The Net Disposition Proceeds realized in such sale must be at least (a) the sum of one hundred five percent (105%) of the Allocable Note Balance with respect to such Sold Railcars and one hundred five percent (105%) of the Allocable Subordinated Note Balance with respect to such Sold Railcars, plus (b) the amount of any Hedge Partial Termination Value that would be owed by the Issuer to a Hedge Provider, if applicable, plus (c) an amount equal to any Redemption Premium that would be payable on the applicable Securities if on the applicable Payment Date such Net Disposition Proceeds were applied, an Optional Redemption of the applicable Securities would require payment of a Redemption Premium (calculated in the same manner); and
(C)All amounts so transferred to the Collections Account may not be withdrawn therefrom except for distribution as contemplated by Section 3.14.
(iv)A Railcar Disposition at the end of the useful life (determined by the Servicer or the Administrator) of a Portfolio Railcar or if the Servicer or the Administrator determines that any Required Modification to a Portfolio Railcar is impracticable (a “Scrap Value Disposition”). With respect to a Permitted Railcar Disposition constituting a Scrap Value Disposition, the Issuer may not deposit the related Net Disposition Proceeds into the Optional Reinvestment Account for application to a purchase of a Qualifying Replacement Railcar but shall deposit such proceeds directly into the Collections Account; and
(v)With respect to a Permitted Railcar Disposition constituting a Purchase Option Disposition or Involuntary Railcar Disposition, the Issuer will, if not electing to deposit such proceeds directly into the Collections Account, deposit the related Net Disposition Proceeds into the Optional Reinvestment Account for application, within the Replacement Period, to a purchase of Qualifying Replacement Railcars in a Replacement Exchange (as contemplated and provided in Section 3.05).
(b)Railcar Acquisitions. The Issuer will not purchase or otherwise acquire a Railcar (or an interest therein) other than the Railcars (or an interest therein) identified on a schedule to the Series Supplement for the Initial Notes, except that the Issuer will be permitted to:
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(i)purchase or otherwise acquire, directly or indirectly, one or more Railcars constituting Qualifying Replacement Railcars in connection with any Replacement Exchange;
(ii)purchase or otherwise acquire, directly or indirectly, one or more additional Railcars pursuant to a Capital Contribution from the Member, so long as, in each case of clause (i) and (ii) (except as indicated below), each of the following requirements are satisfied on or prior to such purchase or other acquisition:
(A)in the case of clause (i) only, no Event of Default or Early Amortization Event shall have occurred and be continuing or would directly result therefrom;
(B)after giving effect to the acquisition, the Portfolio will comply with the Concentration Limits;
(C)the Railcars being acquired have an Appraisal showing an Initial Appraised Value;
(D)each Railcar being acquired is an Eligible Railcar;
(E)the Purchase Price for each such Railcar does not exceed its Initial Appraised Value;
(F)except (i) in connection with Railcars being acquired in a Replacement Exchange for Portfolio Railcars that were not subject to a Lease at the time of the disposition thereof by the Issuer, the Railcars being acquired are each subject to a Permitted Lease; and all actions (including the applicable UCC, STB or Registrar General of Canada filings) shall have been taken to cause the Railcars being purchased or otherwise acquired to be subject to a first priority security interest in favor of the Indenture Trustee for the benefit of the Secured Parties; provided that no such actions will be required to be taken in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada; and
(G)the Railcars being acquired will be free and clear of Encumbrances other than Permitted Encumbrances; and
(iii)purchase or otherwise acquire, directly or indirectly, additional Railcars in connection with the issuance of an Additional Series.
(c)Permitted Railcar Acquisition. A Railcar acquisition by the Issuer complying with the provisions in subsection (b) immediately above constitutes a “Permitted Railcar Acquisition”. If two or more Railcars are being acquired in a Permitted Railcar Acquisition, the foregoing requirements in subsection (b) will be determined on an aggregate basis.
(d)Modification Payments and Capital Expenditures. The Issuer will not make any capital expenditures for the purpose of effecting any optional improvement or modification of any Portfolio Railcar or Parts outside of the ordinary course of business, except
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that the Issuer may make Optional Modifications and Required Modifications in its discretion and subject to the following limitations on the manner in which such Required Modifications and Optional Modifications may be funded:
(i)Required Modifications may be funded out of the Expense Account in accordance with Section 3.06, from distributions to the Issuer from the Flow of Funds, or from Capital Contributions made in accordance with Section 3.17; and
(ii)Optional Modifications may be funded from distributions to the Issuer pursuant to the Flow of Funds, or from Capital Contributions made in accordance with Section 3.17.
In the case of any Optional Modification, the Issuer prior to undertaking such Optional Modification shall have determined, based upon consultation with the Servicer, that the Optional Modification is not expected to decrease the marketability of the Portfolio Railcar as a result of the expenditure on such Optional Modification.
(e)Leases.
(i)The Issuer will not surrender possession of any Portfolio Railcar to any Person (other than the Servicer pursuant to the Servicing Agreement) other than for purposes of maintenance or overhaul or pursuant to a Permitted Lease or for storage purposes pending the Servicer’s procurement of a Permitted Lease thereon.
(ii)The Issuer will, and will cause the Servicer in general to use its pro forma lease agreement or agreements approved by the Administrator, as such pro forma lease agreement or agreements may be revised for purposes of the Issuer specifically or generally from time to time by the Servicer in consultation with the Administrator (collectively, the “Pro Forma Lease”), for use by the Servicer on behalf of the Issuer as a starting point in the negotiation of Future Leases. However, with respect to any Future Lease entered into in connection with (x) the renewal or extension of a related Lease, (y) the leasing of a Portfolio Railcar to a Person that is or was a Lessee under a pre-existing Lease, or (z) the leasing of a Portfolio Railcar to a Person that is or was a Lessee under an operating lease of a Railcar that is being managed or serviced by the Servicer, a form of lease substantially similar to such pre-existing Lease or operating lease, as the case may be, may be used by the Servicer, in lieu of the Pro Forma Lease on behalf of the Issuer as a starting point in the negotiation of such Future Lease. The terms of the Pro Forma Lease may be revised from time to time by the Servicer, provided that any such revisions shall be consistent with a Lease originated thereunder being a Permitted Lease.
(f)Concentration Limits. The Issuer will not sell, purchase, otherwise take any Affirmative Issuer Action that would result, immediately after giving effect to such action, in noncompliance with the Concentration Limits; provided, that the foregoing restriction shall not apply to the renewal by the Issuer of an Existing Lease. Also, the Issuer will not consummate a Permitted Discretionary Sale if the effect of such action is or would be to cause noncompliance with any Concentration Limit. For the avoidance of doubt, noncompliance with any Concentration Limit that results from the Total Loss of Portfolio Railcars shall not constitute a breach of this covenant. Notwithstanding the foregoing, where the merger or consolidation of
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one or more Lessees results in an aggregate Adjusted Value that exceeds the Customer Concentration Limitation, the Issuer will not be obligated to address such noncompliance, however, additional Portfolio Railcars leased to such Lessee may not be purchased by the Issuer unless, upon purchase, the Adjusted Value of the Issuers’ Portfolio Railcars leased to such individual Lessee will meet the applicable Customer Concentration Limitation.
Section 5.04 Operating Covenants. The Issuer covenants with the Indenture Trustee as follows, provided that any of the following covenants with respect to the Portfolio Railcars shall not be deemed to have been breached by virtue of any act or omission of a Lessee or sub-lessee, or of any Person which has possession of a Portfolio Railcar for the purpose of repairs, maintenance, modification or storage, or by virtue of any requisition, seizure, or confiscation of a Portfolio Railcar (other than seizure or confiscation arising from a breach by the Issuer of such covenant) (each, a “Third Party Event”), so long as (i) none of the Issuer, the Servicer or the Administrator has consented to such Third Party Event; and (ii) the Issuer (or the Servicer on its behalf) as the Lessor of such Portfolio Railcar promptly and diligently takes such commercially reasonable actions as a leading railcar operating lessor would reasonably take in respect of such Third Party Event, including, as deemed appropriate (taking into account, among other things, the laws of the jurisdiction in which such Portfolio Railcar is located or operated), seeking to compel such Lessee or other relevant Person to remedy such Third Party Event or seeking to repossess the relevant Portfolio Railcar:
(a)Ownership. The Issuer will (i) on all occasions on which the ownership of each Portfolio Railcar is relevant, make it clear to third parties that title to the same is held by the Issuer, and (ii) not do, or knowingly permit to be done, or omit, or knowingly permit to be omitted, any act or thing which might reasonably be expected to jeopardize the rights of the Issuer as owner of each Portfolio Railcar, except as contemplated by the Operative Agreements.
(b)Compliance with Law; Maintenance of Permits. The Issuer will (i) comply in all material respects with all Applicable Laws, (ii) obtain all material governmental (including regulatory) registrations, certificates, licenses, permits and authorizations required for the use and operation of the Portfolio Railcars owned by it, (iii) not cause or knowingly permit, directly or indirectly, any Lessee to operate any Portfolio Railcar under any related Lease in any material respect contrary to any Applicable Law, and (iv) not knowingly permit, directly or indirectly, any Lessee not to obtain all material governmental (including regulatory) registrations, certificates, licenses, permits and authorizations required for such Lessee’s use and operation of any Portfolio Railcar under any related operating Lease; provided, however, that the Issuer may, in good faith and by appropriate proceedings diligently conducted, contest the validity or application of any such Applicable Law with respect to the Portfolio Railcars in any manner that does not (i) materially interfere with the use, possession or operation of any of the Portfolio Railcars, (ii) materially adversely affect the rights or interests of the Issuer or the Indenture Trustee, on behalf of the Secured Parties, in any of the Portfolio Railcars, (iii) expose the Issuer or the Indenture Trustee to criminal sanctions or (iv) violate any maintenance requirements contained in any insurance policy required to be maintained by the Issuer if such violation could reasonably be expected to adversely affect the coverage under such insurance policy. The Issuer will promptly notify the Indenture Trustee in reasonable detail of any such contest.
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(c)Forfeiture. The Issuer will not do anything, and will not knowingly permit, directly or indirectly, any Lessee to do anything, which may reasonably be expected to expose any Portfolio Railcar to forfeiture, impoundment, detention, appropriation, damage or destruction (other than any forfeiture, impoundment, detention or appropriation which is being contested in good faith by appropriate proceedings) unless (i) adequate resources have been made available by the Issuer or the applicable Lessee for any payment which may arise or be required in connection with such forfeiture, impounding, detention or appropriation or proceedings taken in respect thereof, and (ii) such forfeiture, impounding, detention or appropriation or the continued existence thereof does not give rise to any material likelihood of the assets to which such forfeiture, impounding, detention or appropriation relates or any interest in such assets being sold, permanently forfeited or otherwise lost. In the event of a forfeiture, impoundment, detention or appropriation of such Portfolio Railcar not constituting a Total Loss, the Issuer will use all commercially reasonable efforts to obtain the prompt release of such Portfolio Railcar.
(d)Maintenance of Assets. The Issuer will, with respect to each Portfolio Railcar under Lease, cause, directly or indirectly, such Portfolio Railcar to be maintained in a state of repair and condition consistent with the reasonable commercial practice of leading railcar operating lessors with respect to similar railcars under lease, taking into consideration, among other things, the identity of the relevant Lessee (including the credit standing and operating experience thereof), the age and condition of the Portfolio Railcar and the jurisdiction in which the Portfolio Railcar is or will be operated or in which the Lessee is based. In addition, the Issuer will, with respect to each Portfolio Railcar that is not subject to a Lease, maintain such Portfolio Railcar in a state of repair and condition consistent with the reasonable commercial practice of leading railcar operating lessors with respect to railcars not under lease.
(e)Notification of Loss, Theft, Damage or Destruction. The Issuer will notify the Indenture Trustee, the Administrator, and the Servicer, in writing, as soon as the Issuer becomes aware of any loss, theft, damage or destruction to any Portfolio Railcar or Portfolio Railcars if the potential cost of repair or replacement of such assets (without regard to any insurance claim related thereto) may exceed $1,000,000.
(f)Insurance. The Issuer covenants with the Indenture Trustee as follows:
(i)Insurance. The Issuer will at all times after the Closing Date, at its own expense, keep or cause the Insurance Manager under the Insurance Agreement to keep each Portfolio Railcar insured with insurers of recognized responsibility with a rating of at least A- by A.M. Best Company (or a comparable rating by a nationally or internationally recognized rating group of comparable stature) or by other insurers approved in writing by the Requisite Majority, which approval shall not be unreasonably withheld, in amounts and against risks and with deductibles and terms and conditions not less beneficial to the insured thereunder than the insurance, if any, maintained by the Servicer with respect to similar equipment which it owns or leases, but in no event shall such coverage be for amounts or against risks less than the Prudent Industry Practice.
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(ii)Additional Insurance. In the event that the Issuer shall fail to maintain insurance as herein provided, the Indenture Trustee shall, if directed in writing by the Requisite Majority, upon prior written notice to the Issuer and paid for out of funds in the Collections Account, obtain such insurance. If after the Indenture Trustee has obtained such insurance, the Issuer then obtains the coverage provided for in Section 5.04(f)(i) which was replaced by the insurance provided by the Indenture Trustee, and the Issuer provides the Indenture Trustee with evidence of such coverage reasonably satisfactory to the Indenture Trustee, the Indenture Trustee shall cancel the insurance it has obtained pursuant to the first sentence of this Section 5.04(f)(ii). In such event, the Issuer shall reimburse the Collections Account for all costs of cancellation. In addition, if directed in writing by the Requisite Majority to obtain insurance through a specified insurance agent, the Indenture Trustee shall obtain such insurance with such agent with respect to its interest in the Portfolio Railcars at the expense of the Holders, provided that such insurance does not interfere with the Issuer’s ability to insure the Portfolio Railcars as required by this Section 5.04(f) or adversely affect the Issuer’s insurance or the cost thereof, it being understood that all salvage rights to each Portfolio Railcar shall remain with the Issuer’s insurers at all times. Any insurance payments received from policies maintained by the Indenture Trustee pursuant to the previous sentence shall be retained by the applicable Person obtaining such insurance without reducing or otherwise affecting the Issuer’s obligations hereunder, other than with respect to Portfolio Railcars, with respect to which such payments have been made.
(g)No Accounts. Except as contemplated herein, the Issuer will not have an interest in any deposit account or securities account (other than the Indenture Accounts, any other bank account required in connection with any Liquidity Facility Documents and other than any account which may be required to be established as a necessary consequence of or in order to invest in or otherwise acquire a Permitted Investment) unless (i) any such further account and the Issuer’s interest therein shall be further charged or otherwise secured in favor of the Indenture Trustee for the benefit of the Secured Parties and (ii) any such further account is held in the custody of and under the “control” (as such term is defined in the UCC) of the Indenture Trustee.
(h)Notices. If at any time any creditor of the Issuer seeks to enforce any judgment or order of any competent court or other competent tribunal against any of the Collateral, the Issuer shall (i) promptly give written notice to such creditor and to such court or tribunal of the Indenture Trustee’s interests in the Collateral, (ii) if at any time an examiner, administrator, administrative receiver, receiver, trustee, custodian, sequestrator, conservator or other similar appointee (an “Insolvency Appointee”) is appointed in respect of any secured creditor or any of their assets, promptly give notice to such appointee of the Indenture Trustee’s interests in the Collateral and (iii) notify the Indenture Trustee thereof in either case of clauses (i) and (ii) above. The Issuer will not voluntarily appoint or cause to be appointed or commence any proceeding to appoint any Insolvency Appointee over all or any of its property.
(i)Compliance with Agreements. The Issuer will comply with and perform all its obligations under this Master Indenture and any Series Supplement, the Issuer Documents and the other Operative Agreements to which the Issuer is a party.
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(j)Information. The Issuer will at all times give to the Indenture Trustee such information as the Indenture Trustee may reasonably require for the purpose of the discharge of the powers, rights, duties, authorities and discretions vested in it hereunder, under any other Issuer Document or by operation of Applicable Law.
(k)Further Assurances.
(i)The Issuer will comply with all reasonable directions given to it by the Indenture Trustee to perfect the Security Interests in the Collateral (except to the extent provided in the Granting Clauses herein). The Issuer will execute such further documents and do all acts and things as are required by law or as the Indenture Trustee may reasonably require at any time or times to give effect to this Master Indenture, the Issuer Documents and the relevant Operative Agreements.
(ii)Without limiting the foregoing, from time to time, the Issuer shall authorize and file such financing statements and cause to be authorized and filed such continuation statements, and shall make or cause to be made such filings with the STB and with the Registrar General of Canada and take or cause to be taken such similar actions as are described in the Granting Clauses under “Priority”, all in such manner and in such places as may be required by law to fully perfect, preserve, maintain and protect the security interest of the Indenture Trustee for the benefit of the Secured Parties in the Portfolio Railcars, related Leases and other Collateral granted hereby (including without limitation any such Portfolio Railcars acquired by the Issuer from time to time after the Initial Closing Date), including in the proceeds thereof, it being understood that the Issuer shall not be required to make (to cause to be made) any filings in Mexico or under any Provincial Personal Property Security Act or any other non-federal legislation in Canada. The Issuer shall deliver (or cause to be delivered) to the Indenture Trustee file-stamped copies of, or filing receipts for, any document filed as provided above, following such filing in accordance herewith. In the event that the Issuer fails to perform its obligations under this subsection, the Indenture Trustee may perform such obligations, at the expense of the Issuer, and the Issuer hereby authorizes the Indenture Trustee and grants to the Indenture Trustee an irrevocable power of attorney to take any and all steps in order to perform such obligations in the Issuer’s own name and on behalf of the Issuer, as are necessary or desirable, in the determination of the Indenture Trustee, as applicable.
(l)Original Leases. Following the Delivery Date with respect to a Lease (or, in the case of a Future Lease, the date of origination of such Future Lease), the Issuer will cause the Servicer to retain and maintain possession and control of an original or a copy of the relevant Lease, if any, provided that if any Lease is on a Mixed Rider and the Servicer is required to deliver such Lease to a secured party in respect of railcars subject to such Lease that are not Portfolio Railcars, the Servicer may deliver such Lease to the other secured party with a letter in the Servicer’s customary form advising such other secured party that (x) the applicable Portfolio Railcars, the Lease and the benefit thereof insofar as it relates to such Portfolio Railcars, have been pledged to the Indenture Trustee, (y) delivery of such Lease does not constitute a purchase of such Lease by the recipient secured party, nor does it constitute or evidence any assignment or transfer of rights thereto to the recipient secured party, insofar as
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it relates to the Portfolio Railcars and (z) notwithstanding such delivery of such Lease, the Indenture Trustee does not sell, transfer, assign, waive or subordinate in any respect its security interest in the applicable Portfolio Railcars or such Lease or any other property pledged to it. Without limiting the generality of the foregoing and by way of perfecting the Indenture Trustee’s security interest in certain collateral, including the Chattel Paper relating to any Lease, if any, the Issuer will (i) execute and deliver to the Indenture Trustee, on behalf of the Secured Parties, such financing or continuation statements or continuation statements in lieu, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Indenture Trustee may reasonably request, in order to perfect and preserve the pledge, transfer, assignment and Security Interests granted or purported to be granted hereby, (ii) if any Collateral shall be evidenced by a promissory note or other instrument, deliver and pledge to the Indenture Trustee, on behalf of the Secured Parties, such note or instrument, duly indorsed or accompanied by duly executed instruments of transfer or assignment in blank and undated, all in form and substance reasonably necessary to protect such pledge, and (iii) deliver to the Indenture Trustee, on behalf of the Secured Parties, promptly upon receipt thereof all instruments representing or evidencing any of the Collateral, duly endorsed or accompanied by duly executed instruments of transfer or assignment in blank and undated, all in form and substance reasonably necessary to effect such transfer.
(m)No Effect on Security Interest. Except as otherwise provided in this Master Indenture or other Operative Agreements, the Issuer will not agree to the amendment of any Issuer Document unless the Issuer has provided to the Indenture Trustee from legal counsel reasonably acceptable to the Indenture Trustee an opinion to the effect that such amendment will not result in the Security Interests being prejudiced (the reasonable expenses of such opinion to be paid by the Issuer).
(n)Restrictions on Amendments to Assigned Agreements and Certain Other Actions. (i) The Issuer will not take, or knowingly permit to be taken, any action which would amend, terminate or discharge or prejudice the validity or effectiveness or priority of the Security Interests or permit any party to any of the Issuer Documents whose obligations form part of the security created by this Master Indenture to be released from such obligations except, in each case as permitted or contemplated by this Master Indenture, or the other Issuer Documents or the Operative Agreements, (ii) without the prior written consent of the Indenture Trustee (acting at the Direction of the Requisite Majority), the Issuer shall not, directly or indirectly, (A) cancel or terminate, or consent to or accept any cancellation or termination of, or amend, modify or change in any manner, any Assigned Agreement or any term or condition thereof or (B) waive any default under, or any breach of or noncompliance with any term or condition of, any Assigned Agreement or authorize or approve, or consent to, any of the foregoing and (iii) the Issuer will not knowingly take, or knowingly permit to be taken, any action which, other than the performance of its obligations under the Issuer Documents and the Operative Agreements, would reasonably be expected to result in the lowering or withdrawal of the then current rating of any Securities by the applicable Rating Agency.
(o)Subsidiaries. Except with the consent of the Indenture Trustee (acting at the Direction of the Requisite Majority), the Issuer will not have or establish any Subsidiaries.
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(p)Restriction on Asset Dealings. The Issuer shall not sell, transfer, release or otherwise dispose of any of, or grant options, warrants or other rights with respect to, any of its assets to any Person other than as expressly permitted or contemplated in the Operative Agreements.
(q)Organizational Documents. Subject to Section 5.02(j) and the following sentence, the Issuer shall not take any action to amend, modify or supplement its organizational documents or change its jurisdiction of organization without first obtaining Rating Agency Confirmation. The Issuer shall not, without obtaining the prior written consent of the Requisite Majority (which consent shall not be unreasonably withheld) as well as Rating Agency Confirmation, take any action to waive, repeal, amend, vary, supplement or otherwise modify the provisions of its LLC Agreement which requires consent or approval of the special member of the Issuer, or limits the actions of the Issuer with respect to voluntary insolvency proceedings or involuntary insolvency proceedings of the Issuer.
(r)Servicing Agreement and Administrative Services Agreement. The Issuer shall at all times be a party to the Servicing Agreement and shall, if necessary, take any steps required of it in connection with the appointment of any Successor Servicer thereunder. The Issuer shall at all times be a party to the Administrative Services Agreement or a substitute agreement substantially similar thereto.
(s)Insurance Agreement. The Issuer shall at all times be a party to the Insurance Agreement and shall, if necessary, take any steps required of it in connection with the appointment of any successor Insurance Manager thereunder.
(t)Condition. The Issuer, at its own cost and expense, shall maintain, repair and keep each Portfolio Railcar, and cause the Servicer under the Servicing Agreement to maintain, repair and keep each Portfolio Railcar: (i) according to Prudent Industry Practice and in all material respects, in good working order, and in good physical condition for railcars of a similar age and usage, normal wear and tear excepted, (ii) in a manner in all material respects consistent with maintenance practices used by the Servicer, in respect of railcars owned, leased or managed by the Servicer similar in type to such Portfolio Railcar or with respect to any Portfolio Railcar that is subject to a Net Lease, maintenance practices used by the applicable Lessee, in respect of railcars similar in type to such Portfolio Railcar used by such Lessee on its domestic routes in the United States (provided, however, that after the return to the Servicer of any Portfolio Railcar which was subject to a Net Lease immediately prior to such return, such Portfolio Railcar shall be maintained and repaired in all material respects in a manner consistent with maintenance practices used by the Servicer in respect of railcars owned, leased or managed by the Servicer similar in type to such Portfolio Railcar), (iii) in accordance with all manufacturer’s warranties in effect but only to the extent that the lack of compliance therewith would reasonably be expected to adversely affect the coverage thereunder and in accordance with all applicable provisions, if any, of insurance policies required to be maintained pursuant to Section 5.04 and (iv) in compliance in all material respects with any applicable laws and regulations from time to time in effect, including, without limitation, the Field Manual of the AAR, FRA rules and regulations and Interchange Rules as they apply to the maintenance and operation of the Portfolio Railcars in interchange regardless of upon whom such applicable laws and regulations are nominally imposed; provided,
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however, that, so long as the Servicer or, with respect to any Portfolio Railcar subject to a Lease which is a Net Lease, the applicable Lessee, as the case may be, is similarly contesting such law or regulation with respect to all other similar equipment owned or operated by Servicer or, with respect to any Portfolio Railcar subject to a Net Lease, the applicable Lessee, as the case may be, the Issuer (or such Lessee) may, in good faith and by appropriate proceedings diligently conducted, contest the validity or application of any such standard, rule or regulation in any manner that does not (w) materially interfere with the use, possession, operation or return of any of the Portfolio Railcars, (x) materially adversely affect the rights or interests of the Indenture Trustee in the Portfolio Railcars, (y) expose any Secured Party or the Indenture Trustee to criminal sanctions or (z) violate any maintenance requirements contained in any insurance policy required to be maintained by the Issuer under this Master Indenture if such violation would reasonably be expected to adversely affect the coverage thereunder; provided further, that the Issuer shall promptly notify the Indenture Trustee in reasonable detail of any such contest upon the Issuer or the Servicer becoming aware thereof. In no event shall the Issuer discriminate in any material respect as to the use or maintenance of any Portfolio Railcar (including the periodicity of maintenance or recordkeeping in respect of such Portfolio Railcar) as compared to equipment of a similar nature which the Servicer owns or manages. The Issuer will maintain in all material respects all records, logs and other materials required by relevant industry standards or any governmental authority having jurisdiction over the Portfolio Railcars required to be maintained in respect of any Portfolio Railcar.
(u)Use. The Issuer shall be entitled to the possession of the Portfolio Railcars and to the use of the Portfolio Railcars by it or any Affiliate in the United States and subject to the remaining provisions of this subsection, Canada and Mexico, only in the manner for which the Portfolio Railcars were designed and intended and so as to subject the Portfolio Railcars only to ordinary wear and tear. In no event shall the Issuer use, store or permit the use or storage of any Portfolio Railcar in any jurisdiction not included in the insurance coverage required by Section 5.04(f). The Issuer will not allow more than 33⅓% of the Portfolio Railcars to be used predominantly outside of the United States within the meaning of Proposed Treasury Regulation Section 1.168-2(g)(5).
(v)Custody of Portfolio Leases. Subject to the proviso in Section 5.04(l), after entering into a Future Lease, the Issuer shall cause the Servicer to retain possession and maintain possession and control of any original copies or counterparts of such Future Lease.
(w)Portfolio Railcar Total Loss. In the event that any Portfolio Railcar shall suffer a Total Loss, the Issuer shall (or shall cause the Servicer to) promptly and fully inform the Indenture Trustee of such Total Loss once becoming aware of the same.
(x)Certain Reports. No later than ten (10) Business Days following December 31, 2021, and no later than 10 Business Days following each December 31 (or each March 31, June 30, September 30 and December 31, with respect to clause (iii) below) thereafter, the Issuer will furnish (or cause the Servicer under the Servicing Agreement to furnish) to the Indenture Trustee and each Rating Agency an accurate statement, as of the preceding December 31 (or as of the preceding calendar quarter with respect to clause (iii) below) (i) showing the amount, description and reporting marks of the Portfolio Railcars, the amount, description and reporting marks of all Portfolio Railcars that may have suffered a Total
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Loss during the twelve months ending on such December 31 (or since the Initial Closing Date, in the case of the first such statement), and such other information regarding the condition or repair of the Portfolio Railcars as the Indenture Trustee may reasonably request, (ii) stating that in the case of all Portfolio Railcars repainted during the period covered by such statement, the markings required by Section 2.2(i) of the Servicing Agreement shall have been preserved or replaced, (iii) showing the percentage of use in Canada and Mexico based on the total mileage traveled by the Portfolio Railcars for the prior calendar quarter as reported to the Servicer by railroads (or Lessees in the case of Net Leases, as applicable) and (iv) stating that, except as disclosed therein, the Issuer is not aware of any condition of any Portfolio Railcar which would cause such Portfolio Railcar not to comply in any material respect with the rules and regulations of the FRA and the interchange rules of the Field Manual of the AAR as they apply to the maintenance and operation of the Portfolio Railcars in interchange and any other requirements hereunder.
(y)Inspection.
(i)Upon the occurrence of an Event of Default or a Servicer Termination Event, the Indenture Trustee, at the Direction of the Requisite Majority, together with the agents, representatives, accountants and legal and other advisors of each of the foregoing (collectively, the “Inspection Representatives”), shall have the right to (A) conduct a field examination of a reasonable representative sample of the Portfolio Railcars, which may not in any event in the first instance exceed 100 Portfolio Railcars (each such inspection, a “Unit Inspection”), (B) (I) inspect all documents (the “Related Documents”), including, without limitation, all related Leases, insurance policies, warranties or other agreements, relating to the Portfolio Railcars and the other Collateral (each such inspection, a “Related Document Inspection”) and (II) inspect each of the Issuer’s and the Servicer’s books, records and databases (which shall include reasonable access to the Issuer’s and the Servicer’s computers and computer records to the extent necessary to determine compliance with the Operative Agreements) (collectively, the “Books and Records”) with respect to the Portfolio Railcars and the other Collateral and the Related Documents (including without limitation data supporting all reporting requirements under the Operative Agreements) (each such inspection, a “Books and Records Inspection”) and (C) discuss (I) the affairs, finances and accounts of the Issuer (with respect to itself) and the Servicer (with respect to itself and the Issuer) and (II) the Portfolio Railcars and the other Collateral, the Related Documents and the Books and Records, in each case with the principal executive officer and the principal financial officer of each of the Issuer and the Servicer, as applicable (the foregoing clauses (I) and (II) a “Company Inspection”) (the Unit Inspections, the Related Document Inspections, the Books and Records Inspections and the Company Inspections described in clauses (A), (B) and (C), collectively, the “Inspections”).
(ii)All Inspections shall be at the sole cost and expense of the Issuer (including the reasonable legal and accounting fees, costs and expenses incurred by the Indenture Trustee, and its Inspection Representatives). All Inspections shall be conducted upon reasonable request and notice to the Issuer (with respect to itself) and the Servicer (with respect to itself and the Issuer) and shall (A) be conducted during
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normal business hours, (B) be subject to the Issuer’s and the Servicer’s customary security procedures, if any, and (C) not unreasonably disrupt the Issuer’s or the Servicer’s business.
(iii)If in connection with or as a result of the initial Railcar Inspection, the Indenture Trustee determines (at the Direction of the Requisite Majority) that an Inspection Issue (as defined below) has occurred, then the Indenture Trustee shall have the right to conduct additional Inspections from time to time consisting of additional samplings of Portfolio Railcars in numbers that the Indenture Trustee or its Inspection Representative determines to be a reasonable sampling sufficient to confirm the scope of any such Inspection Issues. “Inspection Issue” means the discovery that a material portion of the Portfolio Railcars inspected are not being used or maintained in a manner that complies with the requirements of this Master Indenture.
Without prejudice to the right to conduct Inspections, all parties granted inspection rights hereunder shall confer with a view toward coordinating their conduct with respect to the Inspections in order to minimize the costs thereof and business disruption attendant thereto.
(z)Modifications.
(i)Required Modifications. In the event a Required Modification to a Portfolio Railcar is required, the Issuer agrees to make or cause to be made such Required Modification at its own expense; provided, that the Issuer (or applicable Lessee) may, in good faith and by appropriate proceedings diligently conducted, contest the validity or application of the law, rule, requirement or regulation requiring such Required Modification in any manner that does not (w) materially interfere with the use, possession, operation, maintenance or return of any Portfolio Railcar, (x) materially adversely affect the rights or interests of the Issuer or the Indenture Trustee in the Portfolio Railcars, (y) expose the Issuer or the Indenture Trustee to criminal sanctions, or (z) violate any maintenance requirements contained in any insurance policy required to be maintained by the Issuer under this Master Indenture if such violation would reasonably be expected to adversely affect the coverage thereunder; provided further, that the Issuer shall notify (or cause to be notified) the Indenture Trustee thereof, which notice shall also set forth the time period for the making of such Required Modification and the Issuer’s or Servicer’s reasonable estimate of the cost thereof; and, provided further, that if a Required Modification is economically impracticable, the Issuer may sell the affected Portfolio Railcar pursuant to a Scrap Value Disposition.
(ii)Optional Modifications. The Issuer at any time may or may permit a Lessee to, in its discretion and at its own or such Lessee’s cost and expense, modify, alter or improve any Portfolio Railcar in a manner which is not a Required Modification; provided that (A) no such optional modification shall diminish the fair market value, utility or remaining economic useful life of such Portfolio Railcar below the fair market value, utility or remaining economic useful life thereof immediately prior to such optional modification, in more than a de minimis respect, assuming such Portfolio Railcar was then at least in the condition required to be maintained by the terms of this Master Indenture and (B) the Issuer, or the Servicer on its behalf, shall conclude in good faith
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that the proposed optional modification is likely to enhance the marketability of the Portfolio Railcar (or such optional modification is requested by a Lessee).
ARTICLE 6

THE INDENTURE TRUSTEE
Section 6.01 Acceptance of Trusts and Duties. If a Default has occurred and is continuing and any applicable grace period has expired, or if an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise such of the rights and powers vested in it by this Master Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs. The duties and responsibilities of the Indenture Trustee shall be as expressly set forth herein, and no implied covenants or obligations shall be read into this Master Indenture against the Indenture Trustee. The Indenture Trustee accepts the obligations hereby created and applicable to it and agrees to perform the same but only upon the terms of this Master Indenture and agrees to receive and disburse all moneys received by it in accordance with the terms hereof. The Indenture Trustee in its individual capacity shall not be answerable or accountable under any circumstances, except for its own willful misconduct or negligence or bad faith or breach of its representations, warranties and/or covenants and the Indenture Trustee shall not be liable for any action or inaction of the Issuer or any other parties to any of the Operative Agreements.
Section 6.02 Absence of Duties. The Indenture Trustee shall have no duty to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of any Lessee. Notwithstanding the foregoing, the Indenture Trustee shall make available on its internet website any reports, Notices, requests, demands, certificates, financial statements and other documents required to be delivered by the Indenture Trustee under the Operative Agreements, and the Indenture Trustee, upon written request, shall furnish to each Holder, promptly upon receipt thereof, duplicates or copies of any other reports, Notices, requests, demands, certificates, financial statements and other instruments furnished to the Indenture Trustee under this Master Indenture and any Series Supplement.
Section 6.03 Representations or Warranties. The Indenture Trustee does not make and shall not be deemed to have made any representation or warranty as to the validity, legality or enforceability of this Master Indenture, the Securities, any other securities or any other document or instrument or as to the correctness of any statement contained in any thereof, except that the Indenture Trustee in its individual capacity hereby represents and warrants (i) that each such specified document to which it is a party has been or will be duly executed and delivered by one of its officers who is and will be duly authorized to execute and deliver such document on its behalf, (ii) this Master Indenture is the legal, valid and binding obligation of U.S. Bank, enforceable against U.S. Bank in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally, and (iii) no consent, approval or other action by or any notice of or filing with any court or administrative or governmental body is required in connection with the authorization, execution and delivery by U.S. Bank of this Master Indenture or other Operative Agreements to which it is a party, or the fulfillment or compliance by U.S.
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Bank with the respective terms and provisions thereof, except as may have already been obtained.
Section 6.04 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, in the case of the Issuer, and in the case of any other party to any Operative Agreement, the governing body of such Person, certified in an accompanying Officer’s Certificate as duly adopted and in full force and effect, as conclusive evidence that such resolution has been duly adopted 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 shall be entitled to receive and may for all purposes hereof conclusively rely on a certificate, signed by an officer of any duly authorized Person, 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 Servicer or the Administrator upon written request such information and copies of such documents as the Indenture Trustee may have and as are necessary for the Servicer or the Administrator to perform its duties under Articles 2 and 3. The Indenture Trustee shall assume, and shall be fully protected in assuming, that the Issuer is authorized by its constitutional documents to enter into this Master Indenture and to take all action permitted to be taken by it pursuant to the provisions hereof, and shall not inquire into the authorization of the Issuer with respect thereto.
The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the Direction of the Holders in accordance herewith relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Master Indenture and any Series Supplement.
The Indenture Trustee may execute any of the obligations or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder.
The Indenture Trustee may consult with counsel, accountants and other experts as to any matter relating to this Master Indenture and any Opinion of Counsel or any advice of such counsel, accountants and other experts shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel.
The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Master Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or Direction of any of the Holders, pursuant to the provisions of this Master Indenture, unless such Holders shall have offered to
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the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby.
The Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Master Indenture shall in any event require the Indenture Trustee to perform, or be responsible or liable for the manner of performance of, any obligations of the Issuer, the Servicer or the Administrator under this Master Indenture and any Series Supplement or any of the Operative Agreements.
The Indenture Trustee shall not be liable for any losses or Taxes (except for Taxes relating to any compensation, fees or commissions of any entity acting in its capacity as Indenture Trustee hereunder) or in connection with the selection of Permitted Investments or for any investment losses resulting from Permitted Investments unless the entity that is the Indenture Trustee is the issuer or the obligor of such a Permitted Investment.
When the Indenture Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.01(f) or 4.01(g), such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors’ rights generally.
The Indenture Trustee shall not be charged with knowledge of an Event of Default unless a Responsible Officer of the Indenture Trustee obtains actual knowledge of such event or receives written notice of such event from the Issuer, the Administrator or Holders owning Securities aggregating not less than 10% of the Outstanding Principal Balance of the Notes or, as the case may be, the Outstanding Stated Amount of Class E Certificates.
The Indenture Trustee shall have no duty to monitor the performance of the Issuer, the Servicer, the Administrator or any other party to the Operative Agreements, nor shall it have any liability in connection with the malfeasance or nonfeasance by such parties. The Indenture Trustee shall have no liability in connection with compliance by the Issuer, the Servicer, the Administrator or any Lessee under a Lease with statutory or regulatory requirements related to any Railcar or any Lease. The Indenture Trustee shall not make or be deemed to have made any representations or warranties with respect to any Railcar or any Lease or the validity or sufficiency of any assignment or other disposition of any Railcar or any Lease.
The Indenture Trustee shall not be liable for any error of judgment reasonably made in good faith by an officer or officers of the Indenture Trustee, unless it shall be determined by a court of competent jurisdiction in a non-appealable judgment that the Indenture Trustee was negligent in making such judgment.
The Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless so requested in writing by the Holders evidencing not less than 25% of the principal amount of the Equipment Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee
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of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Servicing Agreement or any other Operative Agreement, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding; the reasonable expense of every such examination shall be paid by the Person making such request or, if paid by the Indenture Trustee, shall be reimbursed by the Person making such request upon demand.
The Indenture Trustee shall have no obligation to invest and reinvest any cash held in the Indenture Accounts in the absence of timely and specific written investment direction from the Administrator or as expressly provided herein. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon in accordance with the Operative Agreements. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity in accordance with the Operative Agreements or by any other Person or the failure of the Administrator to provide timely written investment direction.
In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out or caused by a Force Majeure Event; it being understood that the Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. “Force Majeure Event” means and includes any events, circumstances or causes whatsoever beyond a Person’s reasonable control, as the case may be, including, without limitation, governmental restrictions, regulations or controls, mechanical breakdowns, shortages of or inability to obtain labor, fuel, steam, water, electricity or materials, acts of God, inability to obtain governmental approvals or consents, adjustment of insurance claims, enemy action, national emergency, epidemics, pandemics, landslides, lightning, earthquake, civil commotion, fires, floods or any other casualties, events or circumstances; provided, however, that such Person shall have used reasonable efforts to perform its obligations notwithstanding such occurrences.
In the event that the Indenture Trustee is also acting as Paying Agent or Securities Registrar hereunder or under any Operative Agreement, the rights and protections afforded to the Indenture Trustee pursuant to this Article 6 shall also be afforded to such Paying Agent and Securities Registrar.
In no event shall the Indenture Trustee be liable of failure to perform its duties hereunder if such failure is a direct or proximate result of another party’s failure to perform its obligations hereunder.
The Indenture Trustee shall not be accountable or responsible in any manner whatsoever for any action of the Issuer, the Administrator or the Servicer, or for the application of moneys by the Servicer until such time as funds are received by the Indenture Trustee.
If the Indenture Trustee receives different or conflicting instructions or directions from more than one group of Holders of a given Class, each of which is provided in accordance with this Master Indenture, the Indenture Trustee shall act in accordance with the instructions or
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directions provided by the group of Holders representing the larger aggregate principal amount of Equipment Notes then Outstanding.
The Indenture Trustee shall not be required to take any action it is directed to take under this Indenture if the Indenture Trustee reasonably determines in good faith that the action so directed would involve the Indenture Trustee in personal liability, be unjustly prejudicial to the non-directing Holders, is inconsistent with this Master Indenture or other Operative Agreement or is contrary to law.
The Indenture Trustee’s receipt of reports and information hereunder shall not constitute notice of any information contained therein or determinable therefrom, including but not limited to a party’s compliance with covenants under this Master Indenture.
Section 6.05 Not Acting in Individual Capacity. The Indenture Trustee acts hereunder solely as trustee unless otherwise expressly provided; and all Persons, other than the Holders to the extent expressly provided in this Master Indenture, having any claim against the Indenture Trustee by reason of the transactions contemplated hereby shall look, subject to the lien and the Flow of Funds, only to the property of the Issuer for payment or satisfaction thereof.
Section 6.06 No Compensation from Holders. The Indenture Trustee agrees that it shall have no right against the Holders for any fee as compensation for its services hereunder.
Section 6.07 Notice of Defaults; Communications During Continuance of Event of Default.
(a)As promptly and soon as practicable after, and in any event within thirty (30) days after, the occurrence of any Default hereunder, the Indenture Trustee shall send to the Issuer, the Liquidity Facility Providers and the Holders notice of such Default hereunder actually known to a Responsible Officer of the Indenture Trustee, unless such Default shall have been cured or waived;
(b)Following the transmission of any notice of Default pursuant to Section 6.07(a), unless such Default shall have been cured or waived, the Indenture Trustee shall promptly send:
(i)to the Holders, any written communications addressed to the Holders and received by the Indenture Trustee from a Liquidity Facility Provider; and
(ii)to the Holders and the Liquidity Facility Providers, any written communication received by the Indenture Trustee from or addressed to any Rating Agency in respect of the Securities.
Section 6.08 Indenture Trustee May Hold Securities. The Indenture Trustee, any Paying Agent, the Securities Registrar or any of their Affiliates or any other agent in their respective individual or any other capacity, may become the owner or pledgee of securities and, may otherwise deal with the Issuer with the same rights it would have if it were not the Indenture Trustee, Paying Agent, Securities Registrar or such other agent.
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Section 6.09 Corporate Trustee Required; Eligibility. There shall at all times be an Indenture Trustee which shall meet the Eligibility Requirements. If such Person publishes reports of conditions at least annually, pursuant to law or to the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 6.09, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published. In case at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of this Section 6.09 to act as Indenture Trustee, the Indenture Trustee shall resign within thirty (30) days as Indenture Trustee in the manner and with the effect specified in Section 7.01.
Section 6.10 Reports by the Issuer. The Issuer shall furnish to the Indenture Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal accounting officer or principal financial officer of the Administrator, as applicable, as to his or her knowledge of the Issuer’s compliance with all conditions and covenants under this Master Indenture and any Series Supplement (it being understood that for purposes of this Section 6.10, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Master Indenture).
Section 6.11 Compensation. The Issuer covenants and agrees to pay to the Indenture Trustee from time to time, and the Indenture Trustee shall be entitled to, the fees and expenses separately agreed in writing between the Issuer and the Indenture Trustee, and will further pay or reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any of the provisions hereof or any other documents executed in connection herewith (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and of all persons not regularly in its employ).
Section 6.12 Certain Rights of the Requisite Majority. Each of the Indenture Trustee and by its acceptance of the Securities, the Holders, hereby agrees that, if the Indenture Trustee shall fail to act in accordance with Direction by the Requisite Majority (with respect to the Securities as a whole) at any time at which it is so required to act hereunder or under any other Operative Agreement, then the Requisite Majority shall be entitled to take such action directly in its own capacity or on behalf of the Indenture Trustee. If the Indenture Trustee fails to act in accordance with Direction by the Requisite Majority when so required to act under any Operative Agreement, then the Indenture Trustee shall, upon the further Direction of the Requisite Majority, irrevocably appoint the Requisite Majority, and any authorized agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the name of the Indenture Trustee or its own name, to take any and all actions that the Indenture Trustee is authorized to take under any Operative Agreement, to the extent the Indenture Trustee has failed to take such action when and as required under such Operative Agreement.
Section 6.13 Lessee Contact. The Indenture Trustee agrees that it shall not engage in any Lessee Contact with any Lessee other than the exceptions set forth in Section 2.1(b) of the Servicing Agreement.
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ARTICLE 7

SUCCESSOR TRUSTEES
Section 7.01 Resignation and Removal of Indenture Trustee. The Indenture Trustee may resign as Indenture Trustee with respect to the Securities at any time without cause by giving at least sixty (60) days’ prior written notice to the Issuer, the Servicer, the Administrator and the Holders, provided that the Indenture Trustee shall continue to serve as Indenture Trustee until a successor has been appointed pursuant to Section 7.02. The Requisite Majority may at any time remove the Indenture Trustee without cause by an instrument in writing delivered to the Issuer, the Servicer, the Administrator and the Indenture Trustee being removed. In addition, the Issuer may remove the Indenture Trustee if: (i) such Indenture Trustee fails to comply with Section 7.02(d), (ii) such Indenture Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or public officer takes charge of such Indenture Trustee or its property or (iv) such Indenture Trustee becomes incapable of acting. References to the Indenture Trustee in this Master Indenture include any successor Indenture Trustee appointed in accordance with this Article 7.
Section 7.02 Appointment of Successor.
(a)In the case of the resignation or removal of the Indenture Trustee under Section 7.01, the Issuer shall promptly appoint a successor Indenture Trustee; provided that the Requisite Majority may appoint, within one (1) year after such resignation or removal, a successor Indenture Trustee which may be other than the successor Indenture Trustee appointed by the Issuer, and such successor Indenture Trustee appointed by the Issuer shall be superseded by the successor Indenture Trustee so appointed by the Requisite Majority. If a successor Indenture Trustee shall not have been appointed and accepted its appointment hereunder within sixty (60) days after the Indenture Trustee gives notice of resignation or is removed, the retiring or removed Indenture Trustee, the Issuer, the Administrator, the Servicer or the Requisite Majority 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 by the Requisite Majority as provided in the first sentence of this paragraph within one (1) year from the date of the appointment by such court.
(b)Any successor Indenture Trustee, however appointed, shall promptly execute and deliver to the Issuer, the Servicer, the Administrator and the predecessor Indenture Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the predecessor Indenture Trustee shall become effective and such successor Indenture Trustee, without further act, shall become vested with all the estates, properties, rights, powers, duties and trusts of such predecessor Indenture Trustee hereunder in the trusts hereunder applicable to it with like effect as if originally named the Indenture Trustee herein; provided that, upon the written request of such successor Indenture Trustee, such predecessor Indenture Trustee shall, upon payment of all amounts due and owing to it, execute and deliver an instrument transferring to such successor 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 predecessor Indenture Trustee shall duly assign,
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transfer, deliver and pay over to such successor Indenture Trustee all moneys or other property then held by such predecessor Indenture Trustee hereunder solely for the benefit of the Securities.
(c)If a successor Indenture Trustee is to be appointed with respect to only a part of the predecessor Indenture Trustee duties hereunder, the Issuer, the predecessor Indenture Trustee and the successor Indenture Trustees shall execute and deliver an Indenture Supplement which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Indenture Trustee as to which the predecessor Indenture Trustee is not retiring shall continue to be vested in the predecessor Indenture Trustee, and shall add to or change any of the provisions of this Master Indenture as shall be necessary to provide for or facilitate the administration of the Securities hereunder by more than one Indenture Trustee.
(d)Each Indenture Trustee shall be an Eligible Institution and shall meet the Eligibility Requirements, if there be such an institution willing, able and legally qualified to perform the duties of an Indenture Trustee hereunder; provided that each Rating Agency shall receive notice of any replacement Indenture Trustee.
(e)Any Person into which the Indenture Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any Person to which substantially all the business of the Indenture Trustee may be transferred, shall, subject to the terms of paragraph (d) of this Section, be the Indenture Trustee under this Master Indenture and any Series Supplement without further act.
ARTICLE 8

INDEMNITY
Section 8.01 Indemnity. The Issuer shall indemnify the Indenture Trustee (and its officers, directors, employees and agents) for, and hold it harmless from and against, any loss, liability, claim, obligation, damage, injury, penalties, actions, suits, judgments or expense (including attorney’s fees and expenses and the costs and expenses of enforcing the Issuer’s indemnification and contractual obligations hereunder) incurred by it without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Master Indenture and its duties under this Master Indenture and any Series Supplement and the Securities, including the costs and expenses of defending itself against any claim or liability and of complying with any process served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties and hold it harmless against, any loss, liability or reasonable expense incurred without negligence or bad faith on its part, arising out of or in connection with actions taken or omitted to be taken in reliance on any Officer’s Certificate furnished hereunder, or the failure to furnish any such Officer’s Certificate required to be furnished hereunder. The Indenture Trustee shall notify the Holders, the Issuer, the Servicer, each Hedge Provider and each Liquidity Facility Provider and, in the case of any such claim in excess of 5% of the Adjusted Value of the Portfolio Railcars, each Rating Agency, promptly of any claim asserted against the Indenture Trustee for which it may seek indemnity; provided, however, that failure to provide such notice shall not invalidate any right to indemnity
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hereunder except to the extent the Issuer is prejudiced by such delay. The Issuer shall defend the claim and the Indenture Trustee shall cooperate in the defense (unless the Indenture Trustee determines that an actual or potential conflict of interest exists, in which case the Indenture Trustee shall be entitled to retain separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel). The Issuer need not pay for any settlements made without its consent; provided that such consent shall not be unreasonably withheld. The Issuer need not reimburse any expense or indemnity against any loss or liability incurred by the Indenture Trustee through negligence or bad faith.
Section 8.02 Holders’ Indemnity. The Indenture Trustee shall be entitled, subject to such Indenture Trustee’s duty set forth in Section 6.01 to act with the required standard of care, to be indemnified by the Holders of the Equipment Notes before proceeding to exercise any right or power under this Master Indenture and any Series Supplement or the Servicing Agreement at the request or Direction of such Holders.
Section 8.03 Survival. The provisions of Sections 8.01 and 8.02 shall survive the termination of this Master Indenture or the earlier resignation or removal of the Indenture Trustee.
ARTICLE 9

SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of the Holders.
(a)Without the consent of any Holder and based on an Opinion of Counsel in form and substance reasonably acceptable to the Indenture Trustee to the effect that such Indenture Supplement is for one of the purposes set forth in clauses (i) through (x) below, the Issuer and the Indenture Trustee, at any time and from time to time, may enter into one or more Indenture Supplements for any of the following purposes:
(i)to add to the covenants of the Issuer in this Master Indenture for the benefit of the Holders of all Securities then Outstanding, or to surrender any right or power conferred upon the Issuer in this Master Indenture;
(ii)to cure any ambiguity, to correct or supplement any provision in this Master Indenture which may be inconsistent with any other provision in this Master Indenture;
(iii)to correct or amplify the description of any property at any time subject to the Encumbrance of this Master Indenture, or to better assure, convey and confirm unto the Indenture Trustee any property subject or required to be subject to the Encumbrance of this Master Indenture, or to subject additional property to the Encumbrance of this Master Indenture;
(iv)to add additional conditions, limitations and restrictions thereafter to be observed by the Issuer;
(v)if required, to convey, transfer, assign, mortgage or pledge any additional property to or with the Indenture Trustee;
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(vi)to evidence the succession of the Indenture Trustee;
(vii)to amend or modify the provisions of the Master Indenture or any other Operative Agreement relating to the timing of movement of monies received, provided, that the effect of such movement does not change the Available Collections Amount available on any Payment Date and the Issuer obtains Rating Agency Confirmation;
(viii)any amendment or modification of an immaterial nature necessary to facilitate the issuing of Additional Notes (all in a manner consistent with the provisions of the Master Indenture);
(ix)to conform to the description of any Operative Agreement in the offering circular for the Equipment Notes; or
(x)to effect any amendment, modification or replacement to the Account Administration Agreement and/or the Account Collateral Agent, provided, that the effect of such amendment, modification or replacement does not change the Available Collections Amount available on any Payment Date and the Issuer obtains Rating Agency Confirmation.
(b)No Indenture Supplement shall be entered into under this Section 9.01 unless (i) each Rating Agency shall have received prior written notice thereof and, except as set forth in the proviso at the end of this sentence, the Issuer shall have obtained a Rating Agency Confirmation in respect thereof; provided, that no such Rating Agency Confirmation shall be required if such Indenture Supplement shall have been entered into by the Indenture Trustee at the Direction of a Requisite Majority; and (ii) if applicable, any consent required by Section 10.03 shall have been obtained.
Section 9.02 Supplemental Indentures with the Consent of Holders.
(a)With the consent evidenced by a Direction of a Requisite Majority, and, if applicable, subject to obtaining any consent required by Section 10.03, the Issuer and the Indenture Trustee may enter into an Indenture Supplement for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Master Indenture or the Securities or of modifying in any manner the rights of the Holders under this Master Indenture or the Securities; provided, however, that no such Indenture Supplement shall, without the prior written Direction of the Holders of such Outstanding Securities adversely affected thereby and the Direction of a Requisite Majority for the Securities then Outstanding:
(i)reduce the principal amount of any Securities or the rate of interest thereon, change the priority of any payments required pursuant to this Master Indenture or amend or otherwise modify the Flow of Funds except as permitted pursuant to Section 9.02(b), or the date on which, or the amount of which, or the place of payment where, or the coin or currency in which, any Securities or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Final Maturity Date thereof;
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(ii)reduce the percentage of Holders of Outstanding Securities required for (x) the consent required for delivery of any Indenture Supplement to this Master Indenture, (y) the consent required for any waiver of compliance with certain provisions of this Master Indenture or certain Events of Default hereunder and their consequences as provided for in this Master Indenture or (z) the consent required to waive any payment default on the Securities;
(iii)modify any provision relating to this Master Indenture which specifies that such provision cannot be modified or waived without the Direction of the Holder of such Outstanding Securities affected thereby;
(iv)modify or alter the definition of the term “Requisite Majority” (including, without limitation, the percentages therein);
(v)impair or adversely affect the Collateral except as otherwise permitted in this Master Indenture;
(vi)modify or alter the provisions of this Master Indenture relating to mandatory prepayments;
(vii)permit the creation of any Encumbrance ranking prior to or on a parity with the Encumbrance of this Master Indenture with respect to any part of the Collateral or terminate the Encumbrance of this Master Indenture on any property at any time subject hereto or deprive any Holder of the security afforded by the Encumbrance of this Master Indenture except as permitted in accordance with this Master Indenture; or
(viii)modify any of the provisions of this Master Indenture or a Series Supplement in such a manner as to potentially reduce the amount of, or delay the timing of, any payments of interest or principal due on any Securities.
Prior to the execution of any Indenture Supplement issued pursuant to this Section 9.02, the Issuer shall provide a written notice to each Rating Agency setting forth in general terms the substance of any such Indenture Supplement.
(b)Notwithstanding the foregoing provisions of this Section 9.02, the Issuer, the Indenture Trustee and, by its acceptance of any Securities, each Holder, hereby irrevocably agrees that, in connection with the appointment and engagement of a Successor Servicer and as contemplated in the last paragraph of the Granting Clauses hereof, the Indenture Trustee acting at the Direction of the Requisite Majority acting in its sole discretion shall have the right, without the consent of the Issuer, any Holder or any other Person, to increase the Servicing Fee and/or pay to the Servicer an incentive fee, add the payment of such amounts to and/or change the priority of distribution of such amounts in, the Flow of Funds and amend this Master Indenture or a Series Supplement to the extent necessary to effectuate the foregoing.
(c)Promptly after the execution by the Issuer and the Indenture Trustee of any Indenture Supplement pursuant to this Section, the Issuer shall send to the Administrator, the Indenture Trustee and each Rating Agency, a notice setting forth in general terms the substance of such Indenture Supplement, together with a copy of the text of such Indenture
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Supplement. Any failure of the Issuer to provide such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such Indenture Supplement.
Section 9.03 Execution of Indenture Supplements and Series Supplements. In executing, or accepting the additional terms created by, an Indenture Supplement or Series Supplement permitted by this Article 9 or the modification thereby of the terms created by this Master Indenture, the Indenture Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such Indenture Supplement or Series Supplement is authorized or permitted by this Master Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such Indenture Supplement or Series Supplement which affects the Indenture Trustee’s own rights, duties or immunities under this Master Indenture and any Series Supplement or otherwise.
Section 9.04 Effect of Indenture Supplements. Upon the execution of any Indenture Supplement under this Article 9, this Master Indenture shall be modified in accordance therewith, and such Indenture Supplement shall form a part of this Master Indenture for all purposes.
Section 9.05 Reference in Securities to Supplements. Securities authenticated and delivered after the execution of any Indenture Supplement or Series Supplement pursuant to this Article 9 may, and shall if required by the Issuer, bear a notation in form as to any matter provided for in such Indenture Supplement or Series Supplement. If the Issuer shall so determine, new Securities so modified as to conform may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Securities.
Section 9.06 Issuance of Additional Series of Notes. The Issuer may from time to time issue one or more Additional Series of Notes pursuant to a Series Supplement executed by the Issuer and the Indenture Trustee that will specify the Principal Terms of such Series. The terms of such Series Supplement may modify or amend the terms of this Master Indenture solely as applied to such Series. No Series Supplement may amend this Master Indenture (or a related Series Supplement) as applicable to any other Series except with the consent of the Control Party for each other Series and in accordance with the terms of this Master Indenture. A Series Supplement may contain special or additional voting requirements that apply with respect to amendments or waivers of or under such Series Supplement, or to matters arising under this Master Indenture as to which Holders of such Series are entitled to vote, provided that no such requirement may be inconsistent with the requirements of this Master Indenture. Any Additional Series (or Class thereof) will be issued as a term Series or Class, i.e., it will have a predetermined, fixed or scheduled principal amortization established in the related Series Supplement. Additional Series may be issued for the purpose of (i) financing the Issuer’s acquisition of additional Railcars and Leases, (ii) refinancing one or more preexisting Series, Class or sub-class of a Class (in each case, in whole and not in part), (iii) raising additional funds for the Issuer or (iv) a combination of the foregoing purposes.
The ability of the Issuer to issue such Additional Series and the obligation of the Indenture Trustee to authenticate and deliver the Notes of such Additional Series and to execute and deliver the related Series Supplement is subject to the satisfaction of the following conditions:
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(a)the Issuer shall have given the Indenture Trustee, the Servicer, each Rating Agency and each other party entitled thereto pursuant to the relevant Series Supplement notice of the Additional Series and the proposed Series Issuance Date;
(b)the Issuer shall have obtained Rating Agency Confirmation with respect to such Additional Series and each other Series of Equipment Notes then Outstanding;
(c)no Servicer Termination Event, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the issuance of such Additional Series, and no Servicer Termination Event, Event of Default or Early Amortization Event would occur as a result of closing the transactions associated with the issuance of such Additional Series;
(d)no Additional Interest shall be due and owing, and all scheduled amortization payments on all Outstanding Series of Notes due at or before the date of the issuance of such Additional Series shall have been made as of the date of issuance of such Additional Series;
(e)the issuance of such Additional Series shall not result in noncompliance with the Concentration Limits;
(f)the Issuer shall have delivered to the Indenture Trustee, on or prior to the date of issuance of such Additional Series:
(i)a copy of the Series Supplement for such Additional Series, duly executed by the Issuer;
(ii)a copy of the Assigned Agreements for such Additional Series, duly executed by each party thereto;
(iii)one or more officer’s certificates, duly executed by a responsible officer and providing for such certifications and other matters as the Indenture Trustee shall reasonably require; and
(iv)one or more Opinions of Counsel, duly executed by counsel to the Issuer and providing for such matters as the Holders (or applicable Initial Purchasers) shall reasonably require, including without limitation, an opinion from tax counsel to the Issuer (which opinion is based on and subject to only customary representations, assumptions and qualifications for an opinion of this nature and may rely, as to factual matters, on a certificate of a Person whose duties relate to the matters being certified) to the effect that, for U.S. federal income tax purposes, (a) such action will not cause any Note of any Outstanding Series or Class for which an Opinion of Counsel to the Issuer was rendered in connection with the original issuance of such Note to the effect that such Note is treated as debt for U.S. federal income tax purposes, to be characterized as other than debt, and (b) such action will not cause the Issuer to be treated as an association (or publicly traded partnership) taxable as a corporation;
(g)the Certificate Agent shall have delivered to the Indenture Trustee an Officer’s Certificate confirming that the Member and the other Holders of the Class E
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Certificates, if any, are prepared to fund the increase in the Outstanding Stated Amount of the Class E Certificates required in connection with the issuance of such Additional Series;
(h)while any Series of Equipment Notes are Outstanding, the Rapid Amortization Date of any Class or sub-Class in connection with an Additional Series of Equipment Notes, if applicable, shall occur on the same date or a date which occurs after the Rapid Amortization Date of the then most recently issued Equipment Notes of the same Class or sub-Class then Outstanding; and
(i)the Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate to the effect that all of the conditions specified in clauses (a) through (h), as applicable, above have been satisfied.
Upon satisfaction of the above conditions, the Indenture Trustee shall execute the Series Supplement and authenticate and deliver the Securities of such Additional Series.
ARTICLE 10

MODIFICATION AND WAIVER
Section 10.01 Modification and Waiver with Consent of Holders. In the event that the Indenture Trustee receives a request for its consent to an amendment, modification or waiver under this Master Indenture, the Securities or any Operative Agreement relating to the Securities, the Indenture Trustee shall send a notice of such proposed amendment, modification or waiver to each Holder asking whether or not to consent to such amendment, modification or waiver if such Holder’s consent is required pursuant to this Master Indenture; provided that any amendment, modification or waiver of the provisions described in Section 9.02 is not permitted without the consent of each Holder whose consent is required thereby; provided further, however, that any Event of Default may be waived in accordance with Section 4.04. The foregoing, however, shall not prevent the Issuer from amending any Lease of a Railcar, provided that such amendment is otherwise permitted by this Master Indenture and the Servicing Agreement.
It shall not be necessary for the consent of the Holders under this Section 10.01 to approve the particular form of any proposed amendment, modification or waiver, but it shall be sufficient if such consent approves the substance thereof. Any such amendment, modification or waiver approved by the Direction of a Requisite Majority (and, if applicable, as to which Rating Agency Confirmation is given) will be binding on all Holders.
The Issuer shall give each Rating Agency prior notice of any amendment under this Section 10.01 and any amendments of its constitutive documents by the Issuer, and, after an amendment under this Section 10.01 becomes effective, the Issuer shall send to the Holders and each Rating Agency a notice briefly describing such amendment. Any failure of the Issuer to send such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment.
After an amendment, modification or waiver under this Section 10.01 becomes effective, it shall bind every Holder, whether or not notation thereof is made on any Securities held by such Holder.
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Section 10.02 Modification Without Consent of Holders. Subject to Section 9.01, the Indenture Trustee may agree, without the consent of any Holder, to (i) any modification (other than those referred to in Section 10.01) of any provision of any Operative Agreement or of the relevant Securities to correct a manifest error or an error which is of a formal, minor or technical nature, (ii) effect any amendment, modification or replacement to the Account Administration Agreement and/or the Account Collateral Agent, provided, that the effect of such amendment, modification or replacement does not change the Available Collections Amount available on any Payment Date and the Issuer obtains Rating Agency Confirmation, (iii) conform to the description of any Operative Agreement or related provisions in the offering circular for the Equipment Notes or (iv) any modification (other than those referred to in Section 10.01) to any provision of any Operative Agreement related to any amendment or modification set forth in any Indenture Supplement entered into pursuant to Section 9.01. Any such modification shall be notified to the Holders as soon as practicable thereafter and shall be binding on all the Holders.
Section 10.03 Consent of Servicer, Hedge Providers and Liquidity Facility Providers. No amendment, modification or waiver to this Master Indenture or a Series Supplement shall be permitted if such amendment, modification or waiver could reasonably be expected to violate Section 11.7(a) of the Servicing Agreement. No amendment, modification or waiver to this Master Indenture or a Series Supplement shall be permitted if such amendment, modification or waiver could reasonably be expected to materially adversely affect a Hedge Provider without the prior written consent of such Hedge Provider. No amendment, modification or waiver to this Master Indenture or a Series Supplement shall be permitted if such amendment, modification or waiver could reasonably be expected to materially adversely affect a Liquidity Facility Provider without the prior written consent of such Liquidity Facility Provider; provided that if a Liquidity Facility Provider is in default under one or more of its Liquidity Facility Documents, then (i) Sections 3.11 and 3.15 are the only Sections of this Master Indenture that shall be considered for purposes of this Section 10.03 with respect to such Liquidity Facility Provider’s consent rights and (ii) the only Sections of a Series Supplement, if any, that shall be considered for purposes of this Section 10.03 with respect to such Liquidity Facility Provider’s consent rights must be expressly identified as such in that Series Supplement.
Section 10.04 Subordination and Priority of Payments. The subordination provisions contained in the Flow of Funds and Article 11 may not be amended or modified without the consent of each Holder of the Outstanding Securities. In no event shall the provisions set forth in the Flow of Funds relating to the priority of the Service Provider Fees and Operating Expenses be amended or modified. The foregoing sentences in each case are subject to the provisions of Section 9.02(b).
Section 10.05 Execution of Amendments by Indenture Trustee. In executing, or accepting the additional obligations created by, any amendment, modification or waiver to this Master Indenture permitted by this Article 10 or Section 3.16(b) or the modifications thereby of the obligations created by this Master Indenture, the Securities or any Operative Agreement related to the Securities, the Indenture Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment, modification or waiver is authorized or permitted by this Master
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Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such amendment, modification or waiver which affects the Indenture Trustee’s own rights, duties or immunities under this Master Indenture or otherwise.
ARTICLE 11

SUBORDINATION
Section 11.01 Subordination.
(a)Each Holder and Service Provider agrees that its claims against the Issuer for payment of amounts are subordinate to any claims ranking in priority thereto as set forth in the Flow of Funds hereof, including any post-petition interest (each such prior claim, a “Senior Claim”), which subordination shall continue until the holder of such Senior Claim (a “Senior Claimant”), or the Indenture Trustee on its behalf, has received the full cash amount of such Senior Claim. Each Holder and Service Provider is also obligated to hold for the benefit of the Senior Claimant any amounts received by such Holder or Service Provider, as the case may be, which, under the terms of this Master Indenture, should have been paid to or on behalf of the Senior Claimant and to pay over such amounts to the Indenture Trustee for application as provided in the Flow of Funds. Each Holder also agrees to execute and deliver such instruments and documents, and take all further action, that a Senior Claimant may reasonably request in order to effectuate the above. Each Holder’s right with respect to any Collateral shall be subordinated to the rights of Senior Claimants. Amounts deposited in any Indenture Account for a defeasance of the Securities or for an Optional Redemption of the Securities will not be subject to the foregoing subordination provisions. For the avoidance of doubt, this paragraph is not intended to limit the rights of Hedge Providers to receive payments other than in accordance with the Flow of Funds pursuant to Sections 3.08(c), 3.11(c), 3.14 and 3.16 of this Master Indenture.
(b)If any Senior Claimant receives any payment in respect of any Senior Claim which is subsequently invalidated, declared preferential, set aside and/or required to be repaid to a trustee, receiver or other party, then, to the extent such payment is so invalidated, declared preferential, set aside and/or required to be repaid, such Senior Claim shall be revived and continue in full force and effect, and shall be entitled to the benefits of this Article 11, all as if such payment had not been received.
(c)Each Holder, by its acceptance of any Securities, and each other payee pursuant to the Flow of Funds, by entering into the Operative Agreement to which it is a party, authorizes and expressly directs the Indenture Trustee on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article 11, and appoints the Indenture Trustee its attorney-in-fact for such purposes, including, in the event of any dissolution, winding up, liquidation or reorganization of the Issuer (whether in bankruptcy, insolvency, receivership, reorganization or similar proceedings or upon an assignment for the benefit of creditors or otherwise) any actions tending towards liquidation of the property and assets of the Issuer or the filing of a claim for the unpaid balance of its Securities in the form required in those proceedings.
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(d)No right of any holder of any Senior Claim to enforce the subordination of any subordinated claim shall be impaired by an act or failure to act by the Issuer or the Indenture Trustee or by any failure by either the Issuer or the Indenture Trustee to comply with this Master Indenture, unless such failure shall materially prejudice the rights of the subordinated claimant.
(e)Each Holder, by accepting any Securities, and each other payee pursuant to the Flow of Funds, by entering into the Operative Agreement to which it is a party, acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder of any Senior Claim, whether such Senior Claim was created or acquired before or after the issuance of such holder’s claim, to acquire and continue to hold such Senior Claim and such holder of any Senior Claim shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold such Senior Claim.
(f)The Holders of each Series and each Class thereof shall have the right to receive, to the extent necessary to make the required payments with respect to the Securities of such Series and each Class thereof at the times and in the amounts specified herein and in any related Series Supplement, (i) the portion of Collections allocable to Holders of such Series and each Class thereof pursuant to this Master Indenture and any related Series Supplement, (ii) funds on deposit in the Liquidity Reserve Account allocated in accordance with the terms of this Master Indenture and any related Series Supplement and (iii) funds on deposit in any Series Account or the Certificate Account for such Series and each Class thereof. Each Holder, by acceptance of its Securities, (x) acknowledges and agrees that except as expressly provided herein and in any related Series Supplement, the Holders of a Series shall not have any interest in any Series Account for the benefit of any other Series (to the extent amounts were deposited therein in accordance with the Operative Agreements), and (y) ratifies and confirms the terms of this Master Indenture and the Operative Agreements executed in connection with such Holder’s Series. With respect to each Collection Period, Collections on deposit in the Collections Account will be allocated to each Series and each Class thereof then Outstanding in accordance with the Flow of Funds and any related Series Supplements.
ARTICLE 12

DISCHARGE OF INDENTURE; DEFEASANCE
Section 12.01 Discharge of Liability on the Securities; Defeasance.
(a)When (i) the Issuer delivers to the Indenture Trustee all Outstanding Securities (other than Securities replaced pursuant to Section 2.08) for cancellation or (ii) all Outstanding Securities have become due and payable, whether at maturity or as a result of the mailing of a Redemption Notice pursuant to Section 3.16(a) and the Issuer irrevocably deposits in the Redemption/Defeasance Account funds sufficient to pay at maturity, or upon Optional Redemption of, all Outstanding Securities, including interest thereon to maturity or the Redemption Date (other than Securities replaced pursuant to Section 2.08), and if in either case the Issuer pays all other sums payable hereunder by the Issuer including any premium, then this Master Indenture shall, subject to Section 12.01(c), cease to be of further effect. The Indenture Trustee shall acknowledge satisfaction and discharge of this Master Indenture on
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demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel, at the cost and expense of the Issuer, to the effect that any conditions precedent to a discharge of this Master Indenture have been met.
(b)Subject to Sections 12.01(c) and 12.02, the Issuer at any time may terminate (i) all its obligations under the Securities or any Class or Series of Securities and this Master Indenture (the “legal defeasance” option) or (ii) its obligations under Sections 5.02, 5.03, 5.04 and 4.01 (other than with respect to a failure to comply with Sections 4.01(a), 4.01(b), 4.01(e) (only with respect to the Issuer) and 4.01(f) (only with respect to the Issuer)) (the “covenant defeasance” option). The Issuer may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment of any Securities subject to such legal defeasance may not be accelerated because of an Event of Default. If the Issuer exercises its covenant defeasance option, payment of the Securities may not be accelerated because of an Event of Default (other than with respect to a failure to comply with Section 5.02(j), 4.01(a), 4.01(b), 4.01(e) and 4.01(f)).
Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the Indenture Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.
(c)Notwithstanding clauses (a) and (b) above, the Issuer’s obligations in Sections 2.01, 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 5.02(j), Article 6, Sections 8.01, 12.04, 12.05 and 12.06 shall survive until all the Equipment Notes have been paid in full. Thereafter, the Issuer’s obligations in Sections 8.01, 12.04, 12.05 and 13.07 shall survive.
(d)Notwithstanding anything to the contrary set forth herein, (i) the Class E Certificates shall not be subject to redemption or defeasance and (ii) this Master Indenture shall not terminate prior to a liquidation of the Issuer notwithstanding prior payment in full of the Notes.
Section 12.02 Conditions to Defeasance. The Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(a)The Issuer irrevocably deposits in trust in the Redemption/Defeasance Account any one or any combination of (A) money, (B) obligations of, and supported by the full faith and credit of, the U.S. Government (“U.S. Government Obligations”) or (C) obligations of corporate issuers (“Corporate Obligations”) (provided that any such Corporate Obligations are rated AA+, or the equivalent, or higher, by each Rating Agency at such time and shall not have a maturity of longer than three (3) years from the date of defeasance) for the payment of all principal, premium, if any, and interest to maturity or redemption on the Class (or Series) of Securities being defeased;
(b)the Issuer delivers to the Indenture Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations or the Corporate Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and
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interest when due and interest to maturity or redemption on the Class (or Series) of the Securities being defeased;
(c)91 days pass after the deposit described in clause (a) above is made and during the 91-day period no Event of Default specified in Section 4.01(f) or (g) with respect to the Issuer occurs which is continuing at the end of the period;
(d)the deposit described in clause (a) above does not constitute a default under any other agreement binding on the Issuer;
(e)the Issuer delivers to the Indenture Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit described in clause (a) does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended;
(f)the Issuer shall have delivered to the Indenture Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(g)if the related Securities are then listed on any securities exchange, the Issuer delivers to the Indenture Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Securities to be delisted;
(h)the Issuer has obtained a Rating Agency Confirmation relating to the defeasance contemplated by this Section 12.02;
(i)the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Securities as contemplated by this Article 12 have been complied with; and
(j)the Issuer shall only defease the Securities of a Class in their entirety, not partially.
Section 12.03 Application of Trust Money. The Indenture Trustee shall hold in the Redemption/Defeasance Account money, U.S. Government Obligations or Corporate Obligations deposited with it pursuant to this Article 12. It shall apply the deposited money and the money from U.S. Government Obligations or Corporate Obligations in accordance with this Master Indenture and the applicable Series Supplements to the payment of principal, premium, if any, and interest on the applicable Securities. Money and securities so held in trust are not subject to Article 10.
Section 12.04 Repayment to the Issuer. The Indenture Trustee shall promptly turn over to the Issuer upon request any excess money or securities held by it at any time. Subject to any applicable abandoned property law, the Indenture Trustee shall pay to the Issuer upon written request any money held by it for the payment of principal or interest that remains unclaimed for two (2) years and, thereafter, Holders entitled to the money must look to the Issuer for payment as general creditors. Such unclaimed funds shall remain uninvested and in no event shall the Indenture Trustee be liable for interest on such unclaimed funds.
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Section 12.05 Indemnity for Government Obligations and Corporate Obligations. The Issuer shall pay and shall indemnify the Indenture Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or Corporate Obligations, or the principal and interest received on such U.S. Government Obligations or Corporate Obligations.
Section 12.06 Reinstatement. If the Indenture Trustee is unable to apply any money or U.S. Government Obligations or Corporate Obligations in accordance with this Article 12 (and the applicable Series Supplements) by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Master Indenture and the applicable Series Supplements and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article 12 until such time as the Indenture Trustee is permitted to apply all such money, U.S. Government Obligations or Corporate Obligations in accordance with this Article 12, the applicable Series Supplements and the applicable Securities; provided, however, that, if the Issuer has made any payment of interest on or principal of any Securities because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money, U.S. Government Obligations or Corporate Obligations held by the Indenture Trustee.
ARTICLE 13

MISCELLANEOUS
Section 13.01 Right of Indenture Trustee to Perform. If the Issuer for any reason fails to observe or punctually to perform any of its obligations to the Indenture Trustee, whether under this Master Indenture and any Series Supplement or any of the other Operative Agreements or otherwise, the Indenture Trustee shall have power (but shall have no obligation), on behalf of or in the name of the Issuer or otherwise, to perform such obligations and to take any steps which the Indenture Trustee may, in its absolute discretion, consider appropriate with a view to remedying, or mitigating the consequences of, such failure by the Issuer; provided that no exercise or failure to exercise this power by the Indenture Trustee shall in any way prejudice the Indenture Trustee’s other rights under this Master Indenture and any Series Supplement or any of the other Operative Agreements.
Section 13.02 Waiver. Any waiver by any party of any provision of this Master Indenture or any right, remedy or option hereunder shall only prevent and estop such party from thereafter enforcing such provision, right, remedy or option if such waiver is given in writing and only as to the specific instance and for the specific purpose for which such waiver was given. The failure or refusal of any party hereto to insist in any one or more instances, or in a course of dealing, upon the strict performance of any of the terms or provisions of this Master Indenture by any party hereto or the partial exercise of any right, remedy or option hereunder shall not be construed as a waiver or relinquishment of any such term or provision, but the same shall continue in full force and effect. No failure on the part of the Indenture Trustee to exercise, and no delay on its part in exercising, any right or remedy under this Master Indenture and any Series Supplement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof
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or the exercise of any other right or remedy. The rights and remedies provided in this Master Indenture are cumulative and not exclusive of any rights or remedies provided by law.
Section 13.03 Severability. In the event that any provision of this Master Indenture or the application thereof to any party hereto or to any circumstance or in any jurisdiction governing this Master Indenture shall, to any extent, be invalid or unenforceable under any applicable statute, regulation or rule of law, then such provision shall be deemed inoperative to the extent that it is invalid or unenforceable and the remainder of this Master Indenture, and the application of any such invalid or unenforceable provision to the parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not be affected thereby nor shall the same affect the validity or enforceability of this Master Indenture. The parties hereto further agree that the holding by any court of competent jurisdiction that any remedy pursued by the Indenture Trustee hereunder is unavailable or unenforceable shall not affect in any way the ability of the Indenture Trustee to pursue any other remedy available to it.
Section 13.04 Notices. All notices, demands, certificates, requests, directions, instructions and communications hereunder (“Notices”) shall be in writing and shall be effective (a) upon receipt when sent through the mails, registered or certified mail, return receipt requested, postage prepaid, with such receipt to be effective the date of delivery indicated on the return receipt, or (b) one Business Day after delivery to an overnight courier, or (c) on the date personally delivered to an authorized officer of the party to which sent, or (d) on the Business Day transmitted by legible telecopier transmission with a confirmation of receipt by the addressee thereof, or (e) if by electronic mail, upon written confirmation of receipt by the addressee thereof, in all cases addressed to the recipient as follows:
if to the Issuer, Administrator or Servicer to:

Trinity Industries Leasing Company
14221 N. Dallas Parkway,
Suite 1100
Dallas, Texas 75254
Attention: TILC Capital Markets Group
E-mail: TILC.CapitalMarkets.notices@trin.net
With a copy to:

Trinity Industries Leasing Company
14221 N. Dallas Parkway,
Suite 1100
Dallas, Texas 75254
Attention: Legal Department
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if to the Indenture Trustee, the Securities Registrar or the Paying Agent, to:

U.S. Bank National Association
425 Walnut Street, 6th Floor
CN-OH-W6CT
Cincinnati, OH 45202
Attention: Global Structured Finance
Facsimile: (513) 632-5511
E-mail: Christopher.mckim@usbank.com
Re: TRP 2021 LLC
if to a Hedge Provider, to:
the address specified in the applicable Series Supplement
if to a Liquidity Facility Provider, to:
the address specified in the applicable Series Supplement
if to a Rating Agency, to:

the address specified in the applicable Series Supplement
or addressed to any party at such other address as such party shall hereafter furnish to the other parties by written notice as provided above.
Section 13.05 Assignments. This Master Indenture shall be a continuing obligation of the Issuer and shall (i) be binding upon the Issuer and its successors and assigns and (ii) inure to the benefit of and be enforceable by the Indenture Trustee, and by its successors, transferees and assigns. The Issuer may not assign any of its obligations under this Master Indenture or any Series Supplement, or delegate any of its duties hereunder.
Section 13.06 Currency Conversion.
(a)If any amount is received or recovered by the Administrator, the Servicer or the Indenture Trustee in respect of this Master Indenture or any part thereof (whether as a result of the enforcement of the security created under this Master Indenture and any Series Supplement or pursuant to this Master Indenture or any judgment or order of any court or in the liquidation or dissolution of the Issuer or by way of damages for any breach of any obligation to make any payment under or in respect of the Issuer’s obligations hereunder or any part thereof or otherwise) in a currency (the “Received Currency”) other than the currency in which such amount was expressed to be payable (the “Agreed Currency”), then the amount in the Received Currency actually received or recovered by the Indenture Trustee shall, to the fullest extent permitted by Applicable Law, only constitute a discharge to the Issuer to the extent of the amount of the Agreed Currency which the Administrator, the Servicer or the Indenture Trustee was or would have been able in accordance with its normal procedures to purchase on the date of actual receipt or recovery (or, if that is not practicable, on the next date on which it is so practicable), and, if the amount of the Agreed Currency which the
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Administrator, the Servicer or the Indenture Trustee is or would have been so able to purchase is less than the amount of the Agreed Currency which was originally payable by the Issuer, the Issuer shall pay to the Administrator, the Servicer or the Indenture Trustee such amount as the Administrator, Servicer or the Indenture Trustee shall determine to be necessary to indemnify such Person against any loss sustained by it as a result (including the cost of making any such purchase and any premiums, commissions or other charges paid or incurred in connection therewith) and so that such indemnity, to the fullest extent permitted by Applicable Law, (i) shall constitute a separate and independent obligation of the Issuer distinct from its obligation to discharge the amount which was originally payable by the Issuer and (ii) shall give rise to a separate and independent cause of action and apply irrespective of any indulgence granted by the Administrator, the Servicer or the Indenture Trustee and continue in full force and effect notwithstanding any judgment, order, claim or proof for a liquidated amount in respect of the amount originally payable by the Issuer or any judgment or order and no proof or evidence of any actual loss shall be required.
(b)For the purpose of or pending the discharge of any of the moneys and liabilities hereby secured the Administrator and the Servicer may convert any moneys received, recovered or realized by the Administrator or the Servicer, as the case may be, under this Master Indenture and any Series Supplement (including the proceeds of any previous conversion under this Section 13.06) from their existing currency of denomination into the currency of denomination (if different) of such moneys and liabilities and any conversion from one currency to another for the purposes of any of the foregoing shall be made at the Indenture Trustee’s then prevailing spot selling rate at its office by which such conversion is made. If not otherwise required to be applied in the Received Currency, the Administrator or the Servicer, as the case may be, acting on behalf of the Indenture Trustee, shall promptly convert any moneys in such Received Currency other than Dollars into Dollars. Each previous reference in this Section to a currency extends to funds of that currency and funds of one currency may be converted into different funds of the same currency.
Section 13.07 Application to Court. The Indenture Trustee may at any time after the service of a Default Notice apply to any court of competent jurisdiction for an order that the terms of this Master Indenture be carried into execution under the direction of such court and for the appointment of a receiver of the Collateral or any part thereof and for any other order in relation to the administration of this Master Indenture as the Requisite Majority shall deem fit and it may assent to or approve any application to any court of competent jurisdiction made at the instigation of any of the Holders and shall be indemnified by the Issuer against all costs, charges and expenses incurred by it in relation to any such application or proceedings.
Section 13.08 Governing Law. THIS MASTER INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
Section 13.09 Jurisdiction.
(a)Each of the parties hereto agrees that the United States federal and New York State courts located in The City of New York shall have jurisdiction to hear and determine
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any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Master Indenture and, for such purposes, submits to the jurisdiction of such courts. Each of the parties hereto waives any objection which it might now or hereafter have to the United States federal or New York State courts located in The City of New York being nominated as the forum to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Master Indenture and agrees not to claim that any such court is not a convenient or appropriate forum.
(b)The submission to the jurisdiction of the courts referred to in Section 13.09(a) shall not (and shall not be construed so as to) limit the right of the Indenture Trustee to take proceedings against the Issuer in any other court of competent jurisdiction nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
(c)Each of the parties hereto hereby consents generally in respect of any legal action or proceeding arising out of or in connection with this Master Indenture to the giving of any relief or the issue of any process in connection with such action or proceeding, including the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in such action or proceeding.
Section 13.10 Jury Trial. EACH PARTY TO THIS AGREEMENT, AND EACH HOLDER BY ITS ACCEPTANCE OF ITS NOTES, HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 13.11 Counterparts; Electronic Signatures. This Master Indenture may be executed in two or more counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument. Each of the parties agree that this Master Indenture, each Series Supplement and any other documents to be delivered in connection herewith and therewith (other than the Notes) may be electronically signed, that any digital or electronic signatures (including pdf, facsimile or electronically imaged signatures provided by DocuSign or any other digital signature provider as specified in writing to the Indenture Trustee) appearing on this Master Indenture, each Series Supplement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability and admissibility, and that delivery of any such electronic signature to, or a signed copy of, this Master Indenture, each Series Supplement and such other documents may be made by facsimile, email or other electronic transmission.
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Section 13.12 No Petition in Bankruptcy. The Indenture Trustee agrees, and each Holder shall be deemed to have agreed, that, prior to the date which is one year and one day after the payment in full of all Outstanding Securities, neither the Indenture Trustee nor any Holder shall institute against, or join any other Person in instituting against, the Issuer an action in bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceeding under the laws of the United States or any state of the United States.
Section 13.13 Table of Contents, Headings, Etc. The Table of Contents and headings of the articles and sections of this Master Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms and provisions hereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Master Indenture to be duly executed, all as of the date first written above.
TRP 2021 LLC
By: TRP 2021 Railcar Holdings, LLC, its sole equity member and manager
By: RIV 2013 Rail Holdings LLC, its sole equity member and manager
By: Trinity Industries Leasing Company,
its agent
By:    /s/ Sara E. McCoy    
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director
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U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee (and as securities intermediary as described herein)
By: /s/ Chris McKim    
Name: Chris McKim
Title: Vice President

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Annex A to Master Indenture: Defined Terms
“144A Book-Entry Note” means any Equipment Note sold in reliance on Rule 144A, represented by a single permanent global note in fully registered form, without coupons, the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Notes, with the legends required by Section 2.02 for a 144A Book-Entry Note inscribed thereon and with such changes therein and such additional information as may be specified in the Series Supplement pursuant to which such Equipment Notes are issued.
“2012 Master Indenture” means that certain Master Indenture dated as of December 19, 2012 by and between the Issuer and WTC, as modified, amended or supplemented from time to time prior to the Initial Closing Date.
“AAR” means the Association of American Railroads or any successor thereto.
“Account Administration Agreement” means the Customer Collections Account Administration Agreement, dated as of November 12, 2003, by and among the various beneficiary parties thereto from time to time, TILC and WTC (and as the same may be amended, supplemented, restated, amended and restated or modified from time to time) or any replacement account administration agreement with the Account Collateral Agent or a replacement Account Collateral Agent.
“Account Collateral Agent” means the “Account Collateral Agent” under and as defined in an Account Administration Agreement, initially WTC.
“Accounts” means all “accounts” as defined in Article 9 of the UCC, whether due or to become due, whether or not the right of payment has been earned by performance, and whether now owned or hereafter acquired or arising in the future, including Accounts Receivable from Affiliates of the Issuer.
“Accounts Receivable” means all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including, without limitation, all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Property, together with all of the Issuer’s right, title and interest, if any, in any goods or other property giving rise to such right to payment, including any rights to stoppage in transit, replevin, reclamation and resales, and all related security interests, Encumbrances and pledges, whether voluntary or involuntary, in each case whether now existing or owned or hereafter arising or acquired, and all Supporting Obligations related to the foregoing and all Accounts Receivable Records.
“Accounts Receivable Records” means (a) all original copies of all documents, instruments or other writings or electronic records or other records evidencing the Accounts Receivable, (b) all books, correspondence, credit or other files, records, ledger sheets or cards, invoices, and other papers relating to Accounts Receivable, including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and
ANNEX A
Page 1


other papers and documents relating to the Accounts Receivable, whether in the possession or under the control of the Issuer or any computer bureau or agent from time to time acting for the Issuer or otherwise, (c) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or lenders, and certificates, acknowledgments, or other writings, including, without limitation, lien search reports, from filing or other registration officers, (d) all credit information, reports and memoranda relating thereto and (e) all other written, electronic or other non-written forms of information related in any way to the foregoing or any Accounts Receivable.
“Act” has the meaning, with respect to any Holder, given to such term in Section 1.04(a).
“Additional Interest” means, with respect to a Series of Notes or any Class thereof, interest at the Stated Rate on the aggregate amount of any unpaid interest that is due and payable on the Notes of such Series and Class (including any unpaid portion of the Stated Interest Amount and any Additional Interest Amount).
“Additional Interest Amount” means, with respect to any Class of Notes in any Series of Notes, an amount equal to the Additional Interest on the aggregate amount of unpaid interest (including any unpaid portion of any Stated Interest Amounts and any Additional Interest Amount) that was due and payable on the Notes of such Series or Class on any prior Payment Date.
“Additional Liquidity Facility” has the meaning given to such term in Section 3.15.
“Additional Liquidity Facility Provider” means the issuer or provider of an Additional Liquidity Facility.
“Additional Notes” means the Notes evidencing any Additional Series issued by the Issuer from time to time subsequent to the Initial Closing Date.
“Additional Railcar” means each Railcar acquired by the Issuer (other than the Railcars identified on a schedule to the Series Supplement for the Initial Notes) subsequent to the Initial Closing Date in accordance with the conditions set forth in Section 5.03(b).
“Additional Series” means any Series of Notes issued by Issuer subsequent to the Initial Closing Date pursuant to a Series Supplement.
“Adjusted Value” means, for any individual Railcar as of any date of determination, (a) the Initial Appraised Value of such Railcar, adjusted downward as of each Payment Date after the Delivery Date of such Railcar due to depreciation at the greater of (i) the amount of depreciation determined based on straight line depreciation from the date of manufacture using an assumed 35-year useful life (25 years for autoracks) to a “10%” assumed residual/salvage value and (ii) the amount of depreciation that would be calculated under any subsequent depreciation methodology or general practice of marking down asset values attributable to a
ANNEX A
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change in Trinity’s corporate policy and practice after the Initial Closing Date (a “Depreciation Change”), plus (b) the cost of any Optional Modification or Required Modification, to the extent that Trinity on its books of account would properly add such cost to the book value of such Railcar in accordance with U.S. GAAP, with the amount of such cost so added pursuant to this clause (b) to be depreciated in the same manner following its incurrence and addition to book. Following the receipt of all proceeds and third party payments associated with a casualty event with respect to a Railcar, its Adjusted Value will be deemed to be zero.
“Administrative Services Agreement” means the Administrative Services Agreement, dated as of the Initial Closing Date, between the Administrator and the Issuer, or any replacement administrative services agreement with a replacement Administrator.
“Administrator” means TILC, in its capacity as administrator under the Administrative Services Agreement, including its successors in interest and permitted assigns, until another Person shall have become the administrator under such agreement, after which “Administrator” shall mean such other Person.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with, such Person or is a director or officer of such Person; “control” of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting Stock, by contract or otherwise.
“Affirmative Issuer Action” means, a Permitted Discretionary Sale by the Issuer or a Replacement Exchange by the Issuer or the re-leasing of a Portfolio Railcar by the Issuer following the termination of or failure to renew the pre-existing Lease on such Portfolio Railcar.
“After-Tax Basis” means, with respect to any payment due to any Person, the amount of such payment supplemented by a further payment or payments so that the sum of all such payments, after reduction for all Taxes payable by such Person by reason of the receipt or accrual of such payments, shall be equal to the payment due to such Person.
“Aggregate Adjusted Borrowing Value” means, as of any date of determination, an amount equal to the sum of (i) the Adjusted Values (measured as of the last day of the month immediately preceding such date of determination) of all Portfolio Railcars, and (ii) the amounts on deposit in any Prefunding Accounts and the Optional Reinvestment Account as of such date.
“Agreed Currency” has the meaning given to such term in Section 13.06(a).
“Allocable Note Balance” means, with respect to any Railcar, an amount equal to the product of the Railcar Advance Rate and the Adjusted Value of such Railcar.
“Allocable Subordinated Note Balance” means, with respect to any Railcar and Subordinated Notes, an amount equal to the product of the Subordinated Railcar Advance Rate and the Adjusted Value of such Railcar.
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“Annual Report” has the meaning given to such term in Section 2.13(a).
“Applicable Law” means all applicable laws, rules, statutes, ordinances, regulations and orders of Governmental Authorities, including, without limitation, the applicable laws, rules, regulations and orders of any Railroad Authority.
“Applicable Person” means any Holder or beneficial owner of a beneficial interest in a Subject Security, and each agent or representative of or intermediary with respect to a holder of such a beneficial interest.
“Appraisal” means a desktop appraisal of a Railcar, i.e. an appraisal without a physical inspection of a Railcar, dated within ninety (90) days before the applicable Delivery Date of such Railcar by the applicable Appraiser to determine the Initial Appraised Value of such Railcar, and, if such Delivery Date is not a Closing Date, considering substantially similar factors in such determination as were considered in the Appraisal delivered in connection with the most recent Closing Date (or, if obtaining an Appraisal addressing such factors is no longer commercially feasible as a result of changes in market practice of railcar appraisers, then an appraisal that considers such factors in the valuation determination as are then commercially feasible to obtain in light of railcar appraisal market practices at that time).
“Appraiser” means RailSolutions, Inc., Edward S. Biggs III, LLC (d/b/a Biggs Appraisal), or such other independent railcar appraiser that is of comparable standing and reputation as determined in the good faith judgment of the Servicer.
“Asset Transfer Agreement” means any asset transfer agreement between the Issuer and one or more sellers of Railcars, in form and substance satisfactory to the Issuer and the applicable seller or sellers party thereto. The initial Asset Transfer Agreement is the Purchase and Contribution Agreement, dated as of December 19, 2012, among the Issuer, TILC and TRLWT.
“Assigned Agreements” has the meaning given to such term in the Granting Clauses hereunder.
“Assignment and Assumption” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Authorized Agent” means, (a) with respect to the Notes of any Series, any authorized Paying Agent or Securities Registrar for the Securities of such Series and (b) with respect to the Class E Certificates, the Certificate Agent.
“Authorized Representative” of any entity means the person or persons authorized to act on behalf of such entity.
“Available Collections Amount” means, for any Payment Date, the amount of Collections in the Collections Account as of the Determination Date for such Payment Date, plus or minus, as applicable, the aggregate amount of all transfers to be made to or from the
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Collections Account pursuant to the Master Indenture, a Hedge Agreement or a Liquidity Facility during the period beginning on such Determination Date and ending on such Payment Date (including transfers from the Liquidity Reserve Account, the Expense Account or the Optional Reinvestment Account pursuant to Sections 3.04, and 3.05, respectively, and including any Servicer Advance), but at any time prior to an Event of Default, excluding any Net Disposition Proceeds deposited in the Collections Account (other than any amounts transferred to the Optional Reinvestment Account pursuant to Section 3.05).
“Balance” means, with respect to any Indenture Account as of any date, the sum of the cash deposits in such Indenture Account and the value of any Permitted Investments held in such Indenture Account as of such date, as determined in accordance with Section 1.02(k).
“Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code, 11 U.S.C. § 101 et. seq.
“Benefit Plan” has the meaning given to such term in Section 2.11(h)(i).
“Bill of Sale” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Book-Entry Notes” means the Regulation S Book-Entry Notes and the 144A Book-Entry Notes.
“Book LTV Ratio” has the meaning given to such term in paragraph 4(e) of the Granting Clause of this Master Indenture.
“Books and Records” has the meaning given to such term in Section 5.04(y)(i).
“Books and Records Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York, Dallas, Texas, St. Paul, Minnesota or in the location of the corporate trust office of the Indenture Trustee administering this Master Indenture (currently Cincinnati, Ohio for U.S. Bank as Indenture Trustee) are authorized by law to close.
“Capital Contribution” has the meaning given to such term in Section 3.17.
“Cede” means Cede & Co., as nominee for DTC.
“Certificate Account” means the “Certificate Account” described in the Certificate Purchase Agreement.
“Certificate Agent” means RIV 2013 Rail Holdings LLC, in its capacity as certificate agent under the Certificate Purchase Agreement, and its permitted successors and assigns.
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“Certificate Purchase Agreement” means the Certificate Purchase and Agency Agreement with respect to the Class E Certificates among the Issuer, the Certificate Agent and TRP 2021 Railcar Holdings, LLC, as the initial purchaser, dated as of the Initial Closing Date.
“Chattel Paper” means all “chattel paper” as defined in the UCC.
“Class” means (i) with respect to a Series of Notes, one or more classes of such Series (which class or classes shall be specified by the related Series Supplement) having the same rights to payment as all other Securities of such class and (ii) the Class E Certificates.
“Class Account” has the meaning given to such term in Section 3.01(a).
“Class A Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class B Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class B Purchase Right” has the meaning given to such term in Section 4.11.
“Class B Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.11.
“Class B Purchasers” has the meaning given to such term in Section 4.11.
“Class C Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class C Purchase Right” has the meaning given to such term in Section 4.12.
“Class C Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.12.
“Class C Purchasers” has the meaning given to such term in Section 4.12.
“Class E Certificates” means the Class E Certificates issued on the Initial Closing Date, executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the Certificate Purchase Agreement, and purchased pursuant to the Certificate Purchase Agreement.
“Class E Purchase Right” has the meaning given to such term in Section 4.13.
“Class E Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.13.
“Class E Purchasers” has the meaning given to such term in Section 4.13.
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“Class R Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Clearing Agency Participant” means a Person who has an account with Clearstream.
“Clearstream” means Clearstream Banking, a French société anonyme.
“Closing Date” means in the case of (i) the Initial Notes and the Class E Certificates, the Initial Closing Date, and (ii) with any other Series (or Class thereof), the date identified as such in the related Series Supplement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” has the meaning given to such term in the Granting Clause.
“Collateral Liquidation Notice” means a written Direction from the Requisite Majority directing the Indenture Trustee to sell the Portfolio Railcars in accordance with Section 4.02(b).
“Collection Period” means, with respect to each Payment Date other than the first Payment Date, the period commencing on the first day of the calendar month immediately preceding the month in which such Payment Date occurs and ending on the last day of such calendar month and, in the case of the first Payment Date in respect of a Series, the period commencing on the Series Issuance Date (or the Initial Closing Date with respect to the Initial Notes issued hereunder) for such Series and ending on the last day of the first full calendar month following such Series Issuance Date or the Initial Closing Date, as applicable.
“Collections” for any period means all amounts (without duplication) received by the Issuer or by any Person (including without limitation, the Account Collateral Agent) receiving such amounts on behalf of the Issuer, including, but not limited to, (i) Lease Payments, (ii) amounts received in respect of claims for damages or in respect of any breach of contract for nonpayment of the foregoing, (iii) the Net Disposition Proceeds of any Railcar Disposition (except for any portion of such Net Disposition Proceeds that the Issuer shall direct to be deposited into the Optional Reinvestment Account), (iv) amounts transferred from the Optional Reinvestment Account either at Issuer’s election or due to a failure to acquire or fund an Additional Railcar within the applicable Replacement Period; (v) investment income, if any, on all amounts on deposit in the Indenture Accounts, (vi) any proceeds or other payments received under the Relative Documents and the Certificate Purchase Agreement, (vii) any portion of the Net Proceeds of the issuance of Securities deposited in the Collections Account on a Closing Date, (viii) net payments received by the Issuer under Hedge Agreements (other than payments made as, or as proceeds of, collateral provided by a Hedge Provider pursuant to a credit support annex), (ix) the proceeds of any cash Capital Contributions and (x) any other amounts received by the Issuer, but not including any funds to be applied in connection with an Optional Redemption and other amounts required to be paid over to any third party pursuant to any Relative Document.
“Collections Account” has the meaning given to such term in Section 3.01(a).
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“Company Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Comparable Lease” means, with respect to Qualifying Replacement Railcars, a Lease that (a) will generate at least the same amount of average monthly lease revenue as the Reference Sold Railcars of a similar railcar type or, if there are no such Reference Sold Railcars of a similar railcar type, Portfolio Railcars of a similar railcar type or, if there are no such Portfolio Railcars of a similar type, such railcars of a similar type as the Administrator may reasonably determine, and (b) has a remaining Lease term at least equal to two-thirds of the average remaining Lease term of the Reference Sold Railcars.
“Concentration Limits” means, collectively the Mexico Concentration Restriction, the Customer Concentration Limitation and the Industry Concentration Limitation.
“Control Party” means in respect of (i) any Series of Notes, unless otherwise provided in the Series Supplement related to such Series, Holders representing more than fifty percent (50%) of the then aggregate Outstanding Principal Balance of (a) initially, all Outstanding Class A Equipment Notes of such Series, (b) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Class A Equipment Notes of such Series, all Outstanding Class B Equipment Notes of such Series, (c) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Class A Equipment Notes and Class B Equipment Notes of such Series, all Outstanding Class C Equipment Notes of such Series and (d) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Equipment Notes of such Series, all Outstanding Subordinated Notes; and (ii) the Class E Certificates, Holders representing more than fifty percent (50%) of the then aggregate Outstanding Stated Amount of the Class E Certificates.
“Convey” or “Conveyance” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Corporate Obligations” has the meaning given to such term in Section 12.02(a).
“Corporate Trust Office” means, with respect to the Indenture Trustee, the office of such trustee in the city at which at any particular time this Master Indenture shall be principally administered and, with respect to the Indenture Trustee on the Initial Closing Date, shall be, for the purpose of exchanging Notes, U.S. Bank National Association, 111 Fillmore East, St. Paul, Minnesota 55107, Attention: Bondholder Services, and for all other purposes shall be U.S. Bank National Association, 425 Walnut Street, 6th Floor, CN-OH-W6CT, Cincinnati, Ohio 45202, Attention: Global Structured Finance, Facsimile No: (513) 632-5511, or at any other time at such other address as the Indenture Trustee may designate from time to time by notice to the Holders and the Issuer.
“Credit Bankrupt” means a Person which (i) is subject to any bankruptcy or insolvency proceeding, (ii) is not paying its debts generally as they become due or (iii) has had a custodian (as defined in the Bankruptcy Code) take charge of all or substantially all of the property of such Person.
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“Cure Amount” has the meaning given to such term in clause (c) of the Early Amortization Event definition.
“Cure Right” has the meaning given to such term in clause (c) of the Early Amortization Event definition.
“Current LTV Ratio” has the meaning given to such term in paragraph 4(e) of the Granting Clause of this Master Indenture.
“Customer Concentration Limitation” means, except in the case of any Permitted Excess Concentration, that, (a) as of any date of determination, the Adjusted Value of Portfolio Railcars leased to an individual Lessee that has a rating of at least “BBB-” or “Baa3” from S&P or Moody’s, respectively (or leased to an Affiliate of such a Person), in the aggregate, does not exceed on such date seventeen and one-half percent (17.5%) of the aggregate Adjusted Value of the Portfolio Railcars on such date, and (b) except as contemplated in clause (a) above, as of any date of determination, the Adjusted Value of Portfolio Railcars leased to an individual Lessee (or leased to an Affiliate thereof), regardless of rating, in the aggregate, does not exceed on such date fifteen percent (15%) of the aggregate Adjusted Value of the Portfolio Railcars on such date. The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Customer Concentration Limitation (i.e., to increase either or both of the percentages to be greater than the applicable percentage or percentages that are then in effect pursuant to this definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Customer Payment Account” means the “Customer Payments Account” described in an Account Administration Agreement.
“Customer Payments” has the meaning given to such term in an Account Administration Agreement.
“Debt Service Coverage Ratio” means, with respect to any Payment Date, commencing on the seventh Payment Date after the Initial Closing Date, the ratio of (i) the sum of the Collections (excluding (a) net payments owed to the Issuer for the payment of any Hedge Termination Value, and (b) any Capital Contributions other than (A) any Capital Contributions made to fund Required Modifications expenses for such Collection Periods and (B) any Capital Contributions made to fund Cure Amounts during such Collection Periods) deposited into the Collections Account for each of the six consecutive Collection Periods ending on the last day of the calendar month immediately preceding such Payment Date, minus the sum of (x) the amount actually deposited into the Expense Account during such six preceding Collection Periods, (y) the Service Provider Fees for each of such six preceding Collection Periods and (z) the amount actually deposited into the Liquidity Reserve Account during such six preceding Collection Periods, to (ii) the sum of (xx) the aggregate amount of principal payments with respect to the six consecutive Payment Dates ending on and including such Payment Date required in order to reduce the aggregate Outstanding Principal Balance of the Equipment Notes of each Series on such Payment Date to an amount equal to the
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Scheduled Targeted Principal Balance for such Series for such Payment Date, plus (yy) the aggregate amount of interest on the Outstanding Equipment Notes of each Series (excluding Additional Interest) payable on the six consecutive Payment Dates ending on and including such Payment Date, plus (or minus) (zz) the net payments owed by the Issuer (or owed to the Issuer) under any Hedge Agreements (other than for the payment of any Hedge Termination Value) in respect of the six consecutive Payment Dates ending on and including such Payment Date.
“Default” means a condition, event or act which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Default Notice” has the meaning given to such term in Section 4.02(a).
“Definitive Certificate” means a certificate issued in definitive form pursuant to the terms and conditions of the Certificate Purchase Agreement and this Master Indenture, the form of which shall be substantially in the form of the applicable Form of Certificate for such Class E Certificate, with the legends required under the Certificate Purchase Agreement inscribed thereon.
“Definitive Note” means a note issued in definitive form pursuant to the terms and conditions of this Master Indenture and the related Series Supplement, the form of which shall be substantially in the form of the applicable Form of Note for such Note, with the legends required by Section 2.02 for a Definitive Note inscribed thereon and with such changes therein and such additional information as may be specified in the Series Supplement pursuant to which such Note is issued.
“Definitive Securities” means any Definitive Note and any Definitive Certificate.
“Delivery Date” means each date on which any Railcar, together with any Lease related thereto and all Related Assets (as defined, if applicable, in the applicable Asset Transfer Agreement), is transferred to the Issuer by the applicable Seller thereof and includes, without limitation, the Initial Closing Date and each other date (in respect of Additional Railcars) on which any such transfer occurs.
“Delivery Schedule” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Depreciation Change” has the meaning given to such term in the definition of Adjusted Value.
“Designated Severability Clause” means, with respect to a Mixed Rider, language to the effect that the Mixed Rider shall constitute one or more separate and severable leases, with each such lease being comprised of railcars owned by a single person or entity, and each such lease shall incorporate the terms of the related master lease agreement and shall be separate and severable from each other lease made pursuant to such rider and from any other railcars or riders relating to such master lease agreement.
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“Determination Date” means, with respect to a Payment Date, the last day of the calendar month prior to the month in which such Payment Date occurs.
“Direct Participants” means securities brokers and dealers, banks, trust companies and clearing corporations, and may include certain other organizations which access the DTC system directly.
“Direction” has the meaning given to such term in Section 1.04(c).
“Dollars” or “$” means the lawful currency of the United States of America.
“DTC” means The Depository Trust Company, a limited purpose trust company organized under the New York Banking Law, its nominees and their successors.
“DTC Participants” means Euroclear, Clearstream or other Persons who have accounts with DTC.
“Early Amortization Event” means, as of any Payment Date, the existence of any one or more of the following events or conditions, unless it has been cured (or unless it has been waived by the Indenture Trustee at the Direction of a Requisite Majority):
(a)    a Servicer Termination Event of the type described in Section 8.5(e)(ii) of the Servicing Agreement;
(b)    the number of Portfolio Railcars that are subject to a Lease is less than 80% of the total number of Portfolio Railcars; or
(c)    as of any Payment Date on or after the seventh (7th) Payment Date following the Closing Date, the Debt Service Coverage Ratio is less than 1.05; for the avoidance of doubt, an Early Amortization Event pursuant to this clause (c) shall terminate on the next upcoming Payment Date as of which the Debt Service Coverage Ratio at least equals 1.05, provided, that the Issuer shall have the right (the “Cure Right”), at any time until the date that is thirty (30) days after such Payment Date, on no more than two occasions in any twelve (12) consecutive calendar months (including and preceding the month in which such Payment Date occurs) to receive Capital Contributions in an amount no greater than that needed to cause the Debt Service Coverage Ratio to be at least equal to 1.05 but no greater than 1.075 immediately after giving effect to such contribution by adding such Capital Contribution (the “Cure Amount”) to the numerator in the calculation of the Debt Service Coverage Ratio. For the avoidance of doubt, no Early Amortization Event will occur or be deemed to have occurred, if after giving effect to the contribution of the Cure Amount as set forth above, the Debt Service Coverage Ratio is at least equal to 1.05).
“Eligibility Requirements” has the meaning given to such term in Section 2.03(b).
“Eligible Green Assets” means the Portfolio Railcars which meet the criteria set forth in the TILC Green Bond Program.
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“Eligible Hedge Provider” means a bank or other entity that satisfies the standards of the Rating Agency rating the applicable Floating Rate Notes in order to maintain the then-current rating of such Floating Rate Notes.
“Eligible Institution” means any depository institution or trust company, with a capital and surplus of not less than $250,000,000, whose long-term unsecured debt rating from each Rating Agency of not less than A (or the equivalent) and whose deposits are insured by the Federal Deposit Insurance Corporation or (b) a federally or state chartered depository institution, with a capital and surplus of not less than $250,000,000, subject to regulations regarding fiduciary funds on deposit substantially similar to 12 C.F.R. § 9.10(b), that in each case has a long-term unsecured debt rating of not less than A (or the equivalent) or a short-term unsecured debt rating of A-1 (or the equivalent) from each Rating Agency.
“Eligible Railcar” means any Railcar that, on its applicable Delivery Date, is ready and available to operate as of such date (or will be upon routine maintenance) in commercial service and otherwise perform the functions for which it was designed.
“Encumbrance” means any mortgage, pledge, lien, encumbrance, charge or security interest, including, without limitation, any conditional sale, any sale without recourse against the sellers, or any agreement to give any security interest over or with respect to any assets of any applicable Person.
“Equipment Note” means any one of the promissory notes (other than Subordinated Notes) executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Series Supplement.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default” means the existence of any of the events or conditions described in Section 4.01.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Date” means the date on which interests in each Regulation S Temporary Book-Entry Note will be exchangeable for interests in an Unrestricted Book-Entry Note, which shall be the later of (i) the fortieth (40th) day after the later of (a) the applicable Closing Date and (b) the completion of the distribution of the related Series of Securities and (ii) the date on which the requisite certifications are due to and provided to the Indenture Trustee.
“Excluded Expenses” means (a) salary, bonuses, company cars and benefits of the Servicer’s employees, (b) office, office equipment and office rental expenses of the Servicer, (c) telecommunications expenses of the Servicer, (d) taxes on the income, receipts, profits, gains, net worth or franchise of the Servicer and payroll, employment and social security taxes
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for employees of the Servicer, (e) any and all financing costs (including interest and fees) relating to any indebtedness of the Servicer, and (f) all other overhead expenses of the Servicer.
“Existing Lease” means a Lease in effect on a Closing Date in respect of any Railcar being conveyed to the Issuer on such date, together with any renewals thereof.
“Expense Account” has the meaning given to such term in Section 3.01(a).
“FATCA” means Sections 1471 through 1474 of the Code as of the date hereof (or any amended or successor versions of Sections 1471 through 1474 of the Code that is substantively comparable), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements (including any foreign legislation, rules, regulations, guidance notes or similar guidance adopted pursuant to or implementing such agreements) entered into in connection with such Sections.
“Final Maturity Date” means, with respect to a Series (or Class thereof) of Notes, the date identified as such in the related Series Supplement.
“Final Principal Payment Shortfall” has the meaning given to such term in Section 3.10(d)(v).
“Fixed Rate Security” means any Security having a Stated Rate that is a fixed percentage.
“Floating Rate Note” means any Note having a Stated Rate that varies with a specified index, as specified in the Series Supplement under which such Floating Rate Note is issued.
“Flow of Funds” means the provisions of the Master Indenture applicable to the allocation and distribution of the Available Collections Amount set forth in Sections 3.11(a), (b) or (c), as applicable.
“Form of Certificate” means with respect to a Class E Certificate, the form of such Security attached as an exhibit to the Certificate Purchase Agreement.
“Form of Full Service Lease” means the form of master railcar lease agreement attached as Exhibit D-1 and D-2 to the Master Indenture.
“Form of Net Lease” means the form of master railcar lease agreement attached as Exhibit E-1 and E-2 to the Master Indenture.
“Form of Note” means, with respect to a Note, the form of such Security attached as an exhibit to the Series Supplement under which such Note is issued.
“FRA” means the Federal Railroad Administration or any successor thereto.
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“Full Service Leases” means Leases pursuant to which the Lessor thereunder is responsible for maintenance and repair of the Portfolio Railcars that are subject thereto.
“Future Lease” means, in respect of any Railcar, a Lease of such Railcar entered into by the Issuer at any time after the Delivery Date for such Railcar and that is not an Existing Lease.
“General Intangibles” (a) means all “general intangibles” as defined in Article 9 of the UCC and (b) includes, without limitation, all Assigned Agreements, all interest rate or currency protection or hedging arrangements, all tax refunds, claims for tax refunds and tax credits, all licenses, permits, approvals, consents, variances, certifications, concessions and authorizations, all Intellectual Property, all Payment Intangibles (in each case, regardless of whether characterized as general intangibles under the UCC), limited liability company or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee and the properties and rights associated therewith), franchises, and any letter of credit, guarantee, claim, security interest or other security held by or granted to the Issuer to secure payment by an account debtor of any of the Accounts Receivable including the Issuer’s rights in all security agreements, leases and other contracts securing or otherwise relating to any Account Receivable and all warranties, rights and claims against third parties including carriers and shippers and otherwise.
“Governmental Authority” shall mean any government, legislative body, regulatory authority, court, administrative agency or commission or other governmental agency or instrumentality (or any officer or representative thereof), domestic, foreign or international, of competent jurisdiction, including the European Union.
“Green Bond Report” has the meaning given to such term in Section 1(q) of the Administrative Services Agreement.
“Hedge Agreement” means an interest rate derivative agreement (including, without limitation, a cap, collar, floor, swap or other derivative transaction) between the Issuer and the Hedge Provider named therein.
“Hedge Collateral” has the meaning given to such term in Section 3.16(g).
“Hedge Collateral Account” has the meaning given to such term in Section 3.16(g).
“Hedge Partial Termination Value” means, with respect to a partial termination of a Hedge Agreement, a termination payment due either from the Issuer to the applicable Hedge Provider or from the applicable Hedge Provider to the Issuer in relation to such termination pursuant to the terms of such Hedge Agreement. Such termination payment may be subject to netting or offsetting claims, and the final amount so owed will be the Hedge Partial Termination Value.
“Hedge Provider” means a Person that is a party to a Hedge Agreement with the Issuer.
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“Hedge Termination Value” means, with respect to a Hedge Agreement, a termination payment due either from the Issuer to the applicable Hedge Provider or from the applicable Hedge Provider to the Issuer in relation to such termination pursuant to the terms of such Hedge Agreement. Such termination payment may be subject to offsetting claims, and the final amount so owed by the Issuer or to the Issuer (if any) will be the Hedge Termination Value.
“Hedging Requirement” has the meaning given to such term in Section 3.16(b).
“Holder” means (i) with respect to any Book-Entry Note, the beneficial owner of such Note, (ii) with respect to any Definitive Note, any Person in whose name such Note is registered from time to time in the Register for such Notes and (iii) with respect to any Class E Certificates, any Person in whose name such Class E Certificate is registered from time to time in the Register for such Class E Certificates maintained by the Certificate Agent.
“Holder Tax Identification Information” means properly completed and signed tax certifications (generally, in the case of U.S. federal income tax, IRS Form W-9 (or applicable successor form) in the case of a person that is a “United States Person” within the meaning of Section 7701(a)(30) of the Code or the appropriate IRS Form W-8 (or applicable successor form) in the case of a person that is not a “United States Person” within the meaning of Section 7701(a)(30) of the Code) and other information requested from time to time by the Issuer, the Indenture Trustee or any Paying Agent sufficient (i) to determine the applicability of, or to determine the amount of, U.S. withholding tax under the Code (including back-up withholding and withholding imposed pursuant to FATCA) or other Applicable Law and (ii) for the Issuer, the Indenture Trustee and each Paying Agent to satisfy their information reporting obligations under the Code (including under FATCA) or other Applicable Law.
“Indebtedness” means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of purchasing such property or service or taking delivery and title thereto or the completion of such services, and payment deferrals arranged primarily as a method of raising funds to acquire such property or service, (v) all obligations of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed) that is required to be classified and accounted for as a capital lease obligation under U.S. GAAP, (vi) all Indebtedness (as defined in clauses (i) through (v) of this paragraph) of other Persons secured by a lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, (vii) all indebtedness of such Person under Liquidity Facilities, (viii) net payments due and payable by such Person under Hedge Agreements, and (ix) all Indebtedness (as defined in clauses (i) through (viii) of this paragraph) of other Persons guaranteed by such Person.
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“Indemnified Expenses” has the meaning given to such term in Section 5 of the Administrative Services Agreement.
“Indenture Account” means each of the Collections Account, the Expense Account, the Optional Reinvestment Account, the Certificate Account, each Series Account, any Class Account, the Liquidity Reserve Account, any Liquidity Facility Collateral Account, any Redemption/Defeasance Account, any Prefunding Account and any sub-accounts and ledger and sub-ledger accounts maintained with respect to any of the foregoing in accordance with this Master Indenture (as well as any other account, if any, established with the Indenture Trustee in accordance with Section 3.01(a) after the Initial Closing Date).
“Indenture Investment” means any obligation issued or guaranteed by the United States of America or any of its agencies for the payment of which the full faith and credit of the United States of America is pledged and with a final maturity on or before the date which is the earlier of (a) ninety days from the date of purchase thereof and (b) the first Payment Date occurring after the date of purchase thereof.
“Indenture Supplement” means a supplement to this Master Indenture, other than a Series Supplement.
“Indenture Trustee” has the meaning given to such term in the preamble hereof, and any successor indenture trustee appointed in accordance with the terms hereof.
“Indenture Trustee Fees” means the compensation and expenses (including attorney’s fees and expenses and indemnification payments) payable to the Indenture Trustee for its services under this Master Indenture and the other Relative Documents to which it is a party (if any).
“Industry Concentration Limitation” means that, as of any date of determination, the Adjusted Value of Portfolio Railcars leased to Lessees for primary use in the industries identified below, are in excess of the percentages set forth below for each such industry (expressed as a percentage of the aggregate Adjusted Value of all Portfolio Railcars on such date):
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Industry
Concentration Limit
(% of Adjusted Value of Portfolio Railcars)
Aggregates 15%
Automotive 15%
Biofuels 15%
Cement 15%
Chlor Alkali 15%
Construction Material 15%
Crude Oil 15%*
Coal 7.5%
DDG/Feed 15%
Fertilizer 15%
Food and Other Agriculture 15%
Frac Sand 7.5%
Grain 15%
Grain Mill Products 15%
Lumber 15%
Metal Products 15%
NGL 15%
Other 15%
Paper 15%
Petrochemicals 15%
Plastics 20%
Refined Products 15%
Steel/Iron 15%

*Non‐DOT 117 tank cars in crude oil service will be limited to 7.5% of the total Adjusted Value of Portfolio Railcars
The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Industry Concentration Limitation (i.e., to increase either or both of the percentages to be greater than the applicable percentage or percentages that are then in effect pursuant to this definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Inflation Factor” means, with respect to any calendar year, the quotient (expressed as a decimal) obtained by dividing (i) the PPI published in respect of the most recently ended calendar year (the “New Year”), by (ii) the PPI published in respect of the calendar year immediately preceding the New Year, and subtracting 1.00 from the resulting quotient. “PPI” for purposes hereof, means, with respect to any calendar year or any period during any
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calendar year, the “Producer Price Index” applicable to the capital equipment sector as published by the Bureau of Labor Statistics for the United States Department of Labor. If the PPI shall be converted to a different standard reference base or otherwise revised after the date hereof, PPI shall thereafter be calculated with use of such new or revised statistical measure published by the Bureau of Labor Statistics or, if not so published, as may be published by any other reputable publisher of such price index reasonably selected by the Administrator. The Inflation Factor may be a negative number.
“Initial Appraised Value” means, with respect to a Railcar, the appraised value of such Railcar as determined in the Appraisal delivered in connection with the Conveyance thereof to the Issuer.
“Initial Closing Date” means June 15, 2021.
“Initial Holder” means, with respect to the Class E Certificates, TRP 2021 Railcar Holdings, LLC.
“Initial Liquidity Facility” means the Revolving Credit Agreement entered into between the Issuer and the Initial Liquidity Facility Provider on the Initial Closing Date.
“Initial Liquidity Facility Provider” means the “Liquidity Facility Provider” under the Series Supplement for the Initial Notes.
“Initial Notes” means the Notes designated “Series 2021-1” issued on the Initial Closing Date.
“Initial Purchaser”, with respect to a Series of Equipment Notes, has the meaning given to such term in the related Series Supplement.
“Insolvency Appointee” has the meaning given to such term in Section 5.04(h).
“Inspection Representative” has the meaning given to such term in Section 5.04(y)(i).
“Inspections” has the meaning given to such term in Section 5.04(y)(i).
“Institutional Accredited Investor” means a Person that is an “accredited investor” as that term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D.
“Instruments” means all “instruments” as defined in Article 9 of the UCC.
“Insurance Agreement” means the Insurance Agreement, dated as of the Initial Closing Date, between the Insurance Manager and the Issuer, or any replacement insurance agreement with a replacement Insurance Manager.
“Insurance Manager” means TILC, in its capacity as insurance manager under the Insurance Agreement, including its successors in interest and permitted assigns, until another
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Person shall have become the insurance manager under such agreement, after which “Insurance Manager” shall mean such other Person.
“Insurance Manager Default” has the meaning given to such term in Section 6.2 of the Insurance Agreement.
“Intellectual Property” means all past, present and future: trade secrets and other proprietary information; trademarks, service marks, business names, Internet domain names, designs, logos, trade dress, slogans, indicia and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including copyrights for computer programs and software) and copyright registrations or applications for registrations which have heretofore been or may hereafter be applied for or issued throughout the world and all tangible property embodying the copyrights; unpatented inventions (whether or not patentable); patent applications and patents; industrial designs, industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, source codes, object codes and other physical manifestations, embodiments or incorporations of any of the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; and all common law and other rights throughout the world in and to any or all of the foregoing.
“Interchange Rules” means the interchange rules or supplements thereto of the AAR, as the same may be in effect from time to time.
“Interest Accrual Period” means, except as may be otherwise provided in the related Series Supplement for a Series of Securities: (a) with respect to Fixed Rate Securities, the period beginning on the 17th day of a calendar month and ending on (but excluding) the 17th day of the next calendar month, and (b) with respect to Floating Rate Notes, the period beginning on each Payment Date and ending on (but excluding) the next succeeding Payment Date, except that the initial Interest Accrual Period for a Series (x) with respect to Fixed Rate Securities, shall begin on the Closing Date for such Series and end on (but exclude) the 17th day of the next calendar month, and (y) with respect to Floating Rate Notes, shall begin on the Closing Date for such Series and end on (but exclude) the first Payment Date occurring after such Closing Date.
“Investment Letter” means a letter substantially in the form of Exhibit B attached hereto.
“Investment Property” means all “investment property” as defined in Article 9 of the UCC.
“Involuntary Railcar Disposition” has the meaning given to such term in Section 5.03(a)(ii).
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“Issuance Expenses” means the aggregate amount of all subscription discounts, brokerage commissions, placement fees, resale fees, structuring fees, out of pocket transaction expenses and other similar fees, commissions and expenses relating to the issuance of a Series of the Securities.
“Issuer” has the meaning given to such term in the preamble.
“Issuer Documents” means this Master Indenture, each Series Supplement, the Servicing Agreement, the Account Administration Agreement, the Administrative Services Agreement, the Insurance Agreement, the Asset Transfer Agreements, any Bill of Sale, any Assignment and Assumption, the Hedge Agreements, the Liquidity Facility Documents, the Marks Company Trust Agreement, any Marks Company Trust Supplement, the Marks Servicing Agreement and any SUBI Certificate related to the Portfolio Railcars.
“Issuer Expense” means, for any Payment Date, any of the following costs directly incurred by the Issuer or incurred by any Service Provider in its performance of its obligations under the applicable Service Provider Agreement that are, in each case, reasonable in amount and are fairly attributable to the Issuer and its permitted activities during the related Collection Period: (i) accounting and audit expenses, and tax preparation, filing and audit expenses; (ii) premiums for liability, casualty, fidelity, directors and officers and other insurance; (iii) directors’ fees and expenses, including fees and expenses of the special member of the Issuer; (iv) other professional fees; (v) taxes (including personal or other property taxes and all sales, value added, use and similar taxes) other than taxes that are incurred by such Service Provider in respect of its own income or assets, and other than taxes that constitute Ordinary Course Expenses; (vi) taxes imposed in respect of any and all issuances of equity interests, stock exchange listing fees, registrar and transfer expenses and trustee’s fees with respect to any outstanding securities of the Issuer; and (vii) surveillance fees assessed by the Rating Agencies, including any such fees incurred by the Issuer in connection with its compliance with its covenant set forth in Section 5.02(o).
“Issuer Group Member” means any of the Issuer, Trinity, TILC or any Affiliate of any of them.
“KBRA” means Kroll Bond Rating Agency, LLC.
“Later Sold Note” has the meaning given to such term in Section 2.19.
“Law” means (a) any constitution, treaty, statute, law, regulation, order, rule or directive of any Governmental Authority, and (b) any judicial or administrative interpretation or application of, or decision under, any of the foregoing.
“Lease” means, with respect to a Railcar, a lease, car contract or other agreement granting permission for the use of such Railcar, constituting an operating lease thereon.
“Lease Payments” means all lease rental payments and other amounts payable by or on behalf of a Lessee under a Lease related to a Portfolio Railcar, including payments credited
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due to application of security deposits and amounts recovered under other supporting obligations, if any, in respect of such Lease.
“Lessee” means each Person who is the lessee under a Lease of a Railcar.
“Lessee Contact” has the meaning given to such term in Section 2.1(a) of the Servicing Agreement.
“Lessor” means, with respect to any Lease, the lessor under such Lease (being, in respect of Leases of Portfolio Railcars, the Issuer as assignee lessor under the related Assignment and Assumption).
“LIBOR”, with respect to a Series, has the meaning given to such term in the related Series Supplement, if applicable.
“Liquidity Facility” means the Initial Liquidity Facility and/or Additional Liquidity Facility, as the context may require. A Liquidity Facility may be in the form of a letter of credit, liquidity loan agreement, revolving credit agreement, collateralized or uncollateralized guarantee, financial guaranty policy, guaranteed investment contract, total return swap, or some other form of standby liquidity.
“Liquidity Facility Available Amount” with respect to a Liquidity Facility, means the amount available to be drawn under such Liquidity Facility.
“Liquidity Facility Collateral Account” has the meaning given to such term in Section 3.01(a).
“Liquidity Facility Documents” has the meaning given to such term in Section 3.15.
“Liquidity Facility Provider” means the Initial Liquidity Facility Provider and/or any Additional Liquidity Facility Provider, as the context may require.
“Liquidity Reserve Account” has the meaning given to such term in Section 3.01(a).
“Liquidity Reserve Target Amount” means, (A) as of the Initial Closing Date, zero and (B) thereafter, on each Payment Date, an amount equal to the product of (x) nine times (y) the sum of (i) the Stated Interest Amount due on all Outstanding Class A Equipment Notes and Class B Equipment Notes on such Payment Date (for purposes of this calculation, interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months), plus (or minus) (ii) the net payments owed by the Issuer (or owed to the Issuer) under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) in respect of the Interest Accrual Period ending on such Payment Date (for purposes of this calculation, such payments shall be calculated on the basis of a 360-day year consisting of twelve 30-day months for both amounts payable and receivable).
“LLC Agreement” means that certain Third Amended and Restated Limited Liability Company Agreement of the Issuer, dated on or about the Initial Closing Date.
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“Mark” means the identification mark of a railcar registered with the AAR, consisting of letters registered in the name of the owner of the railcar mark and the car number.
“Marks Company” means Trinity Marks Company, a Delaware statutory trust.
“Marks Company Trust Agreement” means the Amended and Restated Marks Company Trust Agreement, dated as of May 17, 2001, between TILC and WTC.
“Marks Company Trust Supplement” means (a) with respect to the Initial Notes, the Marks Company Trust Supplement 2021-1, and (b) with respect to any Additional Series, the related supplement to the Marks Company Trust Agreement, substantially in the form of the Marks Company Trust Supplement.
“Marks Company Trust Supplement 2021-1” means the Supplement 2021-1 to the Marks Company Trust Agreement, dated as of the Initial Closing Date, between TILC and WTC.
“Marks Company Trustee” has the meaning given to such term in the Marks Company Trust Agreement.
“Marks Servicing Agreement” means the Management and Servicing Agreement, dated as of May 17, 2001, between TILC and the Marks Company.
“Master Indenture” has the meaning given to such term in the preamble hereto.
“Maximum Hedging Amount” has the meaning given to such term in Section 3.16(b).
“Member” means the sole equity member of the Issuer, i.e. TRP 2021 Railcar Holdings, LLC, or any successor or assignee thereto, in such capacity.
“Merger Transaction” has the meaning given to such term in Section 5.02(g).
“Mexican Lessee” is defined in the definition of Permitted Lessee.
“Mexico Concentration Restriction” means the condition described in the proviso to the definition of Permitted Lessee. The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Mexico Concentration Restriction (i.e., to increase the percentage set forth in the definition of Permitted Lessee to be greater than the applicable percentage that is then in effect pursuant to such definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Minimum Hedging Amount” has the meaning given to such term in Section 3.16(b).
“Mixed Rider” means a Rider that covers not only Railcars owned by the Issuer but also railcars owned by one or more other owners.
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“Modification Agreement” means any agreement between the Issuer (or the Servicer acting on its behalf) and a Supplier for the purchase and/or installation of a Required Modification or an Optional Modification.
“Money” means “money” as defined in the UCC.
“Monthly Report” has the meaning given to such term in Section 2.13(a).
“Moody’s” means Moody’s Investors Service, Inc. or, if such corporation or its successor shall for any reason no longer perform the functions of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally recognized rating agency designated by the Issuer.
“National Reload Pool” means the autorack pool operated by TTX Company for the shared use of bi-level and tri-level autorack Railcars that have been supplied for such pool by participating Class 1 railroads.
“Net Disposition Proceeds” means, with respect to any Railcar Disposition, (a) in respect of a Railcar Disposition consisting of a sale, the aggregate amount of cash received by or on behalf of the seller in connection with such transaction after deducting therefrom (without duplication) (i) reasonable and customary brokerage commissions and other similar fees and commissions, and (ii) the amount of taxes payable in connection with or as a result of such transaction, in each case to the extent, but only to the extent, that amounts so deducted are, at the time of receipt of such cash, actually paid to a Person that is not an Affiliate of the seller and are properly attributable to such transaction or to the asset that is the subject thereof, and (b) in respect of a Railcar Disposition that is not a sale, payments received in respect of any applicable casualty or condemnation, including insurance proceeds, condemnation awards and payments received from Lessees or other third parties.
“Net Leases” means Leases pursuant to which a Lessee thereunder is responsible for maintenance and repair of the Portfolio Railcars leased thereunder.
“Net Proceeds” means, with respect to the issuance of the Securities, the aggregate amount of cash received by the Issuer in connection with such issuance after deducting therefrom (without duplication) all Issuance Expenses; provided that such amount shall not be less than zero.
“Net Stated Interest Shortfall” has the meaning given to such term in Section 3.04(c).
“Non-Severable Mixed Rider” means a Mixed Rider that does not contain a Designated Severability Clause.
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
“Note Purchase Agreement”, with respect to a Series of Equipment Notes, has the meaning given to such term in the related Series Supplement.
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“Notes” means the Equipment Notes and the Subordinated Notes.
“Notices” has the meaning given to such term in Section 13.04.
“NRSRO” means any nationally recognized statistical rating organization.
“Officer’s Certificate” means a certificate signed (i) in the case of a corporation, by the President, any Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of such corporation, (ii) in the case of a partnership, by the Chairman of the Board, the President or any Vice President, the Treasurer or an Assistant Treasurer of a corporate general partner or limited liability company general partner (to the extent such limited liability company has officers), (iii) in the case of a commercial bank or trust company, by the Chairman or Vice Chairman of the Executive Committee or the Treasurer, any Trust Officer, any Vice President, any Executive or Senior or Second or Assistant Vice President, or any other officer or assistant officer customarily performing the functions similar to those performed by the persons who at the time shall be such officers, or to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and (iv) in the case of a limited liability company, any manager or member (other than a special member) thereof, and any President, Managing Director or Vice President of (A) such limited liability company, (B) such manager or member, or (C) a manager of such manager or member.
“Operating Expenses” means (i) Issuer Expenses, (ii) Ordinary Course Expenses and (iii) the costs of Required Modifications.
“Operative Agreements” means the Certificate Purchase Agreement, Asset Transfer Agreements, Bills of Sale, Assignment and Assumptions, this Master Indenture, each Series Supplement, the Notes, each Officer’s Certificate of the Issuer, the Servicer, any Seller, the Administrator or TILC in any other capacity (including as settlor, initial beneficiary and SUBI trustee under any Marks Company Trust Supplement) delivered pursuant to any Operative Agreement, the Servicing Agreement, the Administrative Services Agreement, the Insurance Agreement, the Service Provider Agreements, the Account Administration Agreement, the Marks Company Trust Agreement, each Marks Company Trust Supplement, the Marks Servicing Agreement, the Hedge Agreements and the Liquidity Facility Documents.
“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of the Servicer or the Administrator or counsel to the Issuer, that meets the requirements of Section 1.03.
“Optional Modification” means a modification or improvement of a Railcar, the cost of which is capitalized in accordance with U.S. GAAP, that (a) is not a Required Modification and (b) complies with the criteria set forth in Section 5.04(z)(ii).
“Optional Redemption” means, with respect to any Series of Notes or any Class within a Series of Securities, a voluntary prepayment by the Issuer of all or a portion of the Outstanding Principal Balance of such Series or Class in accordance with the terms of this
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Master Indenture and the applicable Series Supplement or the Certificate Purchase Agreement; and, with respect to all Outstanding Notes, a voluntary prepayment by the Issuer of the Outstanding Principal Balance of the Notes in accordance with the terms of this Master Indenture and each applicable Series Supplement.
“Optional Reinvestment Account” has the meaning given to such term in Section 3.01(a).
“Ordinary Course Expenses” means, with respect to any Payment Date, all of the following expenses and costs, incurred by, or on behalf of, the Issuer (including by the Servicer on behalf of the Issuer) in connection with the ownership, use, leasing and/or operation of the Portfolio Railcars during the related Collection Period (and without duplication): (i) costs for routine maintenance and repairs (but not Optional Modifications) needed to return a Railcar to serviceable condition for use in interchange; (ii) the cost of repositioning a Railcar in connection with the origination or termination of a Lease; (iii) legal fees and court costs incurred in connection with enforcing rights under a Lease of a Railcar and/or repossessing such Railcar (but excluding legal fees incurred by the Servicer in the negotiation and documentation of Future Leases or of amendments or renewals of Leases and Future Leases); (iv) the allocable cost of obtaining and maintaining contingent and off-lease insurance with respect to the Portfolio Railcars; (v) taxes, levies, duties, charges, assessments, fees, penalties, deductions or withholdings assessed, charged or imposed upon or against the use and operation of the Portfolio Railcars; (vi) the cost of storing an off-lease Railcar; (vii) expenses and costs (including legal fees) of pursuing claims against manufacturers or sellers of a Railcar; (viii) non-recoverable sales and value-added taxes with respect to a Railcar; (ix) governmental filing fees necessary to perfect, or continue the perfection of, the security interest of the Indenture Trustee in a Railcar and/or a Lease; (x) the costs of Optional Modifications (but not in excess, in any calendar month, of the result of (A) one hundred thousand dollars ($100,000) multiplied by (B) the number of Outstanding Series on the first day of such calendar month); and (xi) all other expenses and costs, incurred by, or on behalf of, the Issuer (including by the Servicer on behalf of the Issuer) in connection with the ownership, use, leasing and/or operation of the Portfolio Railcars during the related Collection Period, other than Issuer Expenses, the costs of Required Modifications, and Excluded Expenses.
“Outstanding” means with respect to the Securities of any Series or any Class thereof at any time, all Securities of such Series or such Class, as the case may be, previously authenticated and delivered by the Indenture Trustee except (i) any such Securities cancelled by, or delivered for cancellation to, the Indenture Trustee; (ii) any such Securities, or portions thereof, for which the payment of principal of and accrued and unpaid interest on which moneys have been deposited in the Series Account for such Series or the Certificate Account, as applicable, or distributed to Holders by the Indenture Trustee and any such Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount have been deposited in the Redemption/Defeasance Account for such Securities; and (iii) any such Securities in exchange or substitution for which other Securities, as the case may be, have been authenticated and delivered, or which have been paid pursuant to the terms of this Master Indenture (unless proof satisfactory to the Indenture Trustee is presented that any of
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such Securities is held by a Person in whose hands such Security is a legal, valid and binding obligation of the Issuer). Section 1.04(c) sets forth certain limitations on whether any Securities held by the Issuer or any other Issuer Group Members will be considered to be Outstanding for purposes of Directions.
“Outstanding Note” means a Note that is Outstanding.
“Outstanding Obligations” means, as of any date of determination, an amount equal to the sum of (i) the Outstanding Principal Balance of, and all accrued and unpaid interest (including without limitation, Additional Interest) payable on the Notes and (ii) all other amounts owing from time to time to Holders, or to any other Person under the Operative Agreements.
“Outstanding Principal Balance” means, with respect to any Outstanding Notes the total principal balance of such Outstanding Notes unpaid and outstanding at any time.
“Outstanding Securities” means any Security that is Outstanding.
“Outstanding Stated Amount” means, with respect to the Class E Certificates, the outstanding stated amount thereof as of the Closing Date, as such amount may be increased from time to time in the manner set forth in the Certificate Purchase Agreement.
“Part” means any and all parts, attachments, accessions, appurtenances, furnishings, components, appliances, accessories, instruments and other equipment installed in, or attached to (or constituting a spare for any such item installed in or attached to) any Railcar.
“Paying Agent” has the meaning given to such term in Section 2.03(a). The term “Paying Agent” includes any additional Paying Agent.
“Payment Date” means the 17th calendar day of each month, commencing on July 17, 2021; provided that if any Payment Date would otherwise fall on a day that is not a Business Day, such Payment Date shall be the first following day which is a Business Day.
“Payment Date Schedule” means the schedule prepared by the Administrator pursuant to Section 3.10(e).
“Payment Intangible” means all “payment intangibles” as defined in Article 9 of the UCC.
“Permitted Discretionary Sale” has the meaning given to such term in Section 5.03(a)(iii).
“Permitted Encumbrance” means: (i) the ownership interests of the Issuer; (ii) the interest of the Lessee as provided in any Lease; (iii) any Encumbrance for taxes, assessments, levies, fees and other governmental and similar charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings so long as there exists no material risk of sale, forfeiture, loss, or loss of or interference with use or possession of the affected asset, and such contest would not result in the imposition of any
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criminal liability on the Issuer or any assignee thereof; (iv) in respect of any Railcar, any Encumbrance of a repairer, mechanic, supplier, materialman, laborer and the like arising in the ordinary course of business by operation of law or similar Encumbrance, provided that the proceedings relating to such Encumbrance or the continued existence of such Encumbrance does not give rise to any reasonable likelihood of the sale, forfeiture or other loss of the affected asset, and such contest would not result in the imposition of any criminal liability on the Issuer or any assignee thereof; (v) Encumbrances granted to the Indenture Trustee under and pursuant to this Master Indenture; (vi) any Encumbrances created by or through or arising from debt or liabilities or any act or omission of any Lessee in each case either in contravention of the relevant Lease (whether or not such Lease has been terminated) or without the consent of the relevant Lessor (provided that if the Issuer becomes aware of any such Encumbrance, it shall use commercially reasonable efforts to have any such Encumbrance lifted, removed and otherwise discharged); (vii) salvage rights of insurers under insurance policies covering the affected asset; (viii) any sublease permitted under any Lease; (ix) Encumbrances which are released or extinguished upon the transfer of the related asset to the Issuer by the applicable transferee thereof; and (x) Encumbrances on railcars and leases that result from a Rider being a Mixed Rider.
“Permitted Excess Concentration” means the aggregate Adjusted Value of the Issuer’s Railcars leased to an individual Lessee exceeds a percentage limitation specified in the definition of Customer Concentration Limitation as a result of the merger or consolidation of one or more Lessees. A Permitted Excess Concentration shall not be a violation of the Customer Concentration Limitation or the Concentration Limits generally; however, no additional Railcars may be leased to such Lessee (not counting then-currently leased Railcars that are re-leased to the then-current Lessee), and additional Railcars leased to such Lessee may not be purchased, by the Issuer unless, upon such lease or purchase, the Adjusted Value of the Issuer’s Railcars leased to such individual Lessee will meet the applicable Customer Concentration Limitation.
“Permitted Holder” has the meaning given to such term in Section 5.02(i).
“Permitted Investments” means one or more of the following obligations which (i) are acquired at a purchase price of not greater than par, (ii) have a fixed principal amount due at maturity, if applicable, and (iii) unless full payment of principal is paid in cash upon the exercise of the option, do not include any embedded options (i.e., not callable, putable or convertible): (a) marketable direct obligations issued by, or fully and unconditionally guaranteed by, the United States Government or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition, (b) certificates of deposit, time deposits, demand deposits, eurocurrency time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any United States commercial bank having a long-term unsecured debt rating of at least “AA-” by S&P and “A1” by Moody’s or equivalent ratings by another nationally recognized credit rating agency in substitution of Moody’s if Moody’s is not in the business of rating long-term senior unsecured debt of commercial banks, (c) commercial paper of an issuer rated at the time of acquisition at least A-1+ by S&P and P1 by Moody’s or, in substitution of
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Moody’s if Moody’s ceases publishing ratings of commercial paper issuers generally, carrying an equivalent rating by an internationally recognized rating agency, and maturing within one year from the date of acquisition, (d) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States Government, (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at the time of acquisition at least A-l+ by S&P and P1 by Moody’s, or in substitution of Moody’s if Moody’s ceases publishing ratings of such a state, commonwealth, territory, political subdivision, taxing authority or foreign government, carrying an equivalent rating by an internationally recognized rating agency, (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition or (g) shares of money market mutual or similar funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 thereunder and that, at the time of such investment, are rated “Aaa” by Moody’s and “AAA” by S&P or invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. The ratings by S&P described in this definition must be an unqualified rating (i.e., one with no qualifying suffix), with the exception of ratings with regulatory indicators and unsolicited ratings.
“Permitted Lease” means (a) each Existing Lease (including any renewal or extension thereof to the extent such renewal or extension complies with clauses (i), (iii), (iv) and (v) below) and (b) any agreement (other than an Existing Lease) constituting a Lease that meets all of the following requirements:
(i)    the Lessee thereunder is a Permitted Lessee;
(ii)    if such agreement permits the Lessee thereunder to sublease any of the Portfolio Railcars subject to such Lease, then such Lease shall require that any such sublease be conditioned on (A) the Lessee’s obtaining the Lessor’s prior consent to such sublease, (B) the Lessee agreeing that any such sublease will have provisions making it terminable (as to the sublessee) at the request of the Lessor or Lessee, as applicable, and prohibiting any further subleasing by the sublessee and will not contain any purchase option in favor of the sublessee, (C) the Lease providing that no such sublease shall relieve the Lessee from liability thereunder and (D) the applicable sublessee satisfying the requirements for a “Permitted Lessee” set forth below;
(iii)    such agreement was entered into on an arm’s length basis with fair market terms on the date of its execution, and does not require any prepayment of rental payments throughout the term of such agreement;
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(iv)    such agreement does not contain any purchase option in favor of the Lessee thereunder, other than a purchase option provision complying with the definition of a Permitted Purchase Option;
(v)    such agreement (or any related consent, acknowledgment of assignment, side letter or similar written instrument executed by such Lessee) permits the assignment, pledge, mortgage or other similar disposition of the Lease of the related Railcar without notice to or consent by the Lessee (or, in the case of a written instrument described in the foregoing parenthetical, any further notice to or consent by the Lessee), it being understood that the inclusion within such permission or written instrument of language to the effect that such Lessee consent is conditioned on the assignees’ agreement that it takes its interest in the Railcar and/or related Lease subject to the rights of the Lessee in such Railcar under the Lease, including the right of quiet enjoyment, shall not in and of itself be deemed to constitute the Lease as other than a Permitted Lease; and
(vi)    such agreement contains a provision substantially to the effect that the lease rentals payable under such agreement are not subject to offset, deduction or counterclaim (except as expressly contemplated in any rental abatement provisions contained in a Full Service Lease); provided that this clause (vi) shall not apply if such agreement is subject to the terms of, or entered into pursuant to, an existing master lease agreement dated on or prior to a Closing Date which does not contain such a provision.
“Permitted Lessee” means any of the following:
(i)    a railroad company or companies (that is not a Credit Bankrupt, Trinity or any Affiliate of Trinity) organized under the laws of the United States of America or any state thereof or the District of Columbia, Canada or any province thereof, or Mexico or any state thereof, upon lines of railroad owned or operated by such railroad company or companies or over which such railroad company or companies have trackage rights or rights for operation of their trains, and upon connecting with other carriers in the usual interchange of traffic;
(ii)    a company with which the Servicer would do business in the ordinary course of its business with respect to railcars which it owns or manages for its own account (other than railroad companies, Trinity, Affiliates of Trinity or Credit Bankrupts) for use in their business; and whose credit profile does not vary materially from the credit profile of lessees of other railcars owned, leased or managed by the Servicer for its own account; or
(iii)    wholly-owned Subsidiaries of Trinity organized under the laws of (x) Canada or any political subdivision thereof or (y) Mexico or any political subdivision thereof, in each case so long as such Leases are on an arm’s length basis;
provided, however, that a Person organized under the laws of Mexico or any state thereof (a “Mexican Lessee”) shall not constitute a Permitted Lessee unless after giving effect to the contemplated lease to such Mexican Lessee, the percentage of Portfolio Railcars in the aggregate (as measured by Adjusted Value) leased (or subleased by a Lessee organized under the laws of the United States of America or any state thereof or the District of Columbia,
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Canada or any province thereof to a sublessee organized under the laws of Mexico or any state thereof, as applicable) to all Mexican Lessees does not exceed 20% of the Adjusted Value of the Portfolio Railcars in the aggregate.
“Permitted Purchase Option” has the meaning given such term in Section 5.01(z).
“Permitted Railcar Acquisition” has the meaning given to such term in Section 5.03(c).
“Permitted Railcar Disposition” has the meaning given to such term in Section 5.03(a).
“Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any political subdivision thereof or any other legal entity, including public bodies.
“Plan” has the meaning given to such term in Section 2.11(h)(i).
“Portfolio” means, at any time, all Portfolio Railcars and the Leases related to such Railcars.
“Portfolio Lease” means, as of any date of determination, any Lease related to any Portfolio Railcar.
“Portfolio Railcars” means, as of any date of determination, all Railcars then owned by the Issuer that are subject to the Security Interest granted pursuant to this Master Indenture.
“Prefunding Account”, with respect to a Series, if applicable, has the meaning given to such term in the related Series Supplement.
“Principal Terms” means, with respect to any Series, all of the following information: (i) the name or designation of such Series and the Classes of Securities to constitute such Series; (ii) the initial principal balance of the Securities to be issued for such Series (or method for calculating such balance); (iii) the interest rate to be paid with respect to each Class of Securities for such Series; (iv) the Payment Date and the date or dates from which interest shall accrue and on which principal is scheduled to be paid; (v) the designation of any Series Accounts and Class Accounts, if any, for such Series and the terms governing the operation of any such Series Accounts and Class Accounts, if any; (vi) the Final Maturity Date; (vii) the Control Party; (viii) the Scheduled Principal Payment Amounts for each Class of Securities within such Series, (ix) in the case of an Additional Series, the rights to payment of interest and principal, which rights shall not be inconsistent with the Flow of Funds and this Master Indenture; (x) in the case of an Additional Series, the terms, if any, for the optional or early redemption of such Additional Series, (xi) in the case of an Additional Series, the form, authorization, execution and delivery, and the manner of redemption and repayment of such Additional Series, which terms shall be substantially similar to those applicable to the Initial
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Notes and in any event not inconsistent with the terms of this Master Indenture; (xii) in the case of an Additional Series, the legends applicable to such Additional Series, if any, which are required in addition to those set forth in this Master Indenture; (xiii) in the case of an Additional Series, whether the Securities of such Series are eligible for purchase by ERISA plans; and (xiv) any other terms of such Series.
“Private Placement Legend” means, (a) with respect to any Note, the legend initially set forth on the Notes in the form set forth in Section 2.02 and (b) with respect to any Class E Certificate, the legend initially set forth on the Class E Certificates in the form set forth in the Certificate Purchase Agreement.
“Pro Forma Lease” has the meaning given to such term in Section 5.03(e)(ii).
“Proceeding” means any suit in equity, action at law, or other judicial or administrative proceeding.
“Proceeds” means (a) all “proceeds” as defined in Article 9 of the UCC, (b) dividends, payments or distributions made with respect to any Investment Property and (c) whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected, converted or otherwise disposed of, whether such disposition is voluntary or involuntary.
“Prospective Operating Expenses” means, as of any date of determination, the Administrator’s (after consulting with the Servicer) good faith estimate of significant anticipated Operating Expenses expected to be incurred over the next twelve Collection Periods that could impact the Issuer’s ability to pay interest and Scheduled Principal Payment Amounts.
“Provincial Personal Property Security Act” means, in respect of each province or territory in Canada (other than Quebec), the Personal Property Security Act as from time to time in effect in such province or territory and, in respect of Quebec, the Civil Code of Quebec as from time to time in effect in such province.
“Prudent Industry Practice” means at a particular time and to the extent the same are generally known by those in the industry, the standard of operating and maintenance practices, methods and acts, including, but not limited to those required by the Field Manual of the AAR, FRA rules and regulations and Interchange Rules, which, in the light of the relevant facts is generally engaged in or approved by a significant portion of the owners, managers and operators of railcars in the United States that are similar to the Portfolio Railcars, could have been expected to accomplish the desired result consistent with good business practices, reliability, safety and expedition. Prudent Industry Practice is not intended to require optimum practice, method or acts, but rather a spectrum of possible practices, methods or acts that are generally engaged in by other owners, managers and operators of railcars in the United States which are similar to the Portfolio Railcars.
“Purchase Option Disposition” has the meaning given to such term in Section 5.03(a)(i).
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“Purchase Price” means (a) in the case of a Permitted Railcar Acquisition, the amount to be paid to the seller of a Railcar pursuant to the related Asset Transfer Agreement, and (b) in the case of a Required Modification or an Optional Modification, the cost of such Required Modification or Optional Modification, as provided in the Modification Agreement (if any) with the Supplier of such Required Modification or Optional Modification.
“Purchaser” means an Initial Purchaser.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Institutional Buyer” means a “qualified institutional buyer” as defined in Rule 144A promulgated under the Securities Act.
“Qualifying Replacement Railcars” means, in relation to a Replacement Exchange, Railcars that (a) are of at least a substantially comparable remaining economic useful life to the average remaining useful economic life of the Reference Sold Railcars, and (b) are (i) if subject to a Lease, such Lease is a Comparable Lease or (ii) if not subject to a Lease, the Administrator, on behalf of the Issuer, certifies to the Indenture Trustee that it has a reasonable, good faith expectation that such non-leased Railcars will generate at least the same amount of monthly lease revenue (once placed under Lease) as Railcars subject to a Comparable Lease.
“Railcar” means an item of railroad rolling stock, together with (i) any and all replacements or substitutions thereof, (ii) any and all tangible components thereof and (iii) any and all related appliances, Parts, accessories, appurtenances, accessions, additions, improvements to and replacements from time to time incorporated or installed in any item thereof.
“Railcar Advance Rate” means, as of any Payment Date and as determined for the Equipment Notes, and giving effect to all Flow of Funds allocations and other transactions occurring on such Payment Date, the percentage equivalent of a fraction, the numerator of which is the aggregate Outstanding Principal Balance of the Equipment Notes as of such Payment Date, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such Payment Date.
“Railcar Disposition” means any sale, transfer or other disposition of any Railcar (or an interest therein), including by reason of such Railcar suffering a Total Loss or a Scrap Value Disposition.
“Railroad Authority” means the STB, the AAR, and/or any other Governmental Authority which, from time to time, has control or supervision of railways or has jurisdiction over the railworthiness, operation and/or maintenance of a Railcar operating in interchange.
“Railroad Mileage Credits” means the mileage credit payments made by railroads under their applicable tariffs to the registered owner of identifying marks on the railcars.
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“Rapid Amortization Class” means a Class affected by a Rapid Amortization Event, i.e., a Rapid Amortization Event has occurred with respect to the Series of which such Class is a part and such Rapid Amortization Event applies to such Class.
“Rapid Amortization Date”, with respect to a Series, is defined in the related Series Supplement, if applicable.
“Rapid Amortization Event”, with respect to a Series, is defined in the related Series Supplement, if applicable.
“Rapid Amortization Notes” means the Notes of a Rapid Amortization Class or Rapid Amortization Series, as applicable.
“Rapid Amortization Series” means a Series affected by a Rapid Amortization Event, i.e., a Rapid Amortization Event has occurred with respect to such Series.
“Rating Agency” means, with respect to a Series of Notes, each nationally recognized statistical rating organization hired by the Issuer to issue a rating with respect to such Series of Notes or Class thereof as specified in the applicable Series Supplement; provided that such organization shall be deemed to be a Rating Agency only with respect to such Series or Class of Notes, as specified in the related Series Supplement, only so long as such Series or Class of Notes is Outstanding, and only so long as such organization maintains a rating on such Series or Class of Notes.
“Rating Agency Confirmation” means, with respect to any request, action, event or circumstance, and each Rating Agency then maintaining a rating on any Series of Notes (or Class thereof) then Outstanding, (a) written confirmation by such Rating Agency that fulfillment of such request or the taking of the requested action, or the occurrence of such event or circumstance will not itself cause the Rating Agency to downgrade or withdraw its then-current rating assigned to any such Series or Class, or (b) written notice to such Rating Agency of such request, action, event or circumstance, shall have been given by the Issuer at least ten (10) days prior to the request, action, event or circumstance (or, if Rating Agency Confirmation is required by the applicable transaction documents following the occurrence of an event or circumstance such written notice shall have been given by the Issuer immediately following the occurrence of such event or circumstance) and, (i) prior to the expiration of such ten (10) day period, such Rating Agency shall not have issued any written notice that the fulfillment of such request or the taking of the requested action, or occurrence of such event or circumstance will itself cause such Rating Agency to downgrade or withdraw its then current rating assigned to any of the Notes or (ii) such Rating Agency has communicated that it will not review such request, action, event or circumstances for purposes of evaluating whether to confirm its then current rating assigned to any of the Notes; provided, that if a Rating Agency has made a public statement to the effect that it will no longer review requests, actions, events or circumstances of the type requiring receipt of a Rating Agency Confirmation for purposes of evaluating whether to confirm the then-current rating of obligations rated by such Rating Agency, then such public statement shall be deemed to be a Rating Agency Confirmation with respect to such Rating Agency for any such request, action, event or circumstance.
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“Received Currency” has the meaning given to such term in Section 13.06(a).
“Record Date” means with respect to each Payment Date, the close of business on the fifth Business Day immediately preceding such Payment Date and, with respect to the date on which any Direction is to be given by Holders, the close of business on the last Business Day prior to the solicitation of such Direction.
“Redemption Date” means the date on which Securities of any Series or Class are redeemed pursuant to an Optional Redemption.
“Redemption/Defeasance Account” means an account established by the Indenture Trustee pursuant to Section 3.08.
“Redemption Fraction” has the meaning given to such term in Section 3.14(c).
“Redemption Notice” means, a notice sent by the Indenture Trustee to the Holders in respect of the Securities to be redeemed, as described in Section 3.13(d).
“Redemption Premium” means, with respect to the principal amount of any Series (or Class) of Notes to be prepaid on any prepayment date, an amount, if any, specified in the applicable Series Supplement.
“Redemption Price” means, with respect to any Series of Securities or Class thereof that will be the subject of an Optional Redemption, an amount (determined as of the Determination Date (or, in respect of the applicable Hedge Termination Value, the date of termination of any applicable Hedge Agreement) for the Redemption Date for such Optional Redemption) equal to, in the case of any Series or Class of Notes and unless otherwise specified in the related Series Supplement, the Outstanding Principal Balance of the Series or Class of Notes being repaid together with all accrued and unpaid interest thereon and, if specified in the related Series Supplement, (a) the Redemption Premium thereon and (b) the Hedge Termination Value, if any, owed by the Issuer to Hedge Providers in connection therewith. For purposes of reporting any Hedge Termination Value applicable to an Optional Redemption, the Redemption Notice shall include an estimated amount of any such Hedge Termination Value as of the date of such Redemption Notice, and a supplement to the Redemption Notice will be delivered prior to the Redemption Date with such final Hedge Termination Value ascertained as of the date of termination of any applicable Hedge Agreement.
“Reference Sold Railcars” means, with respect to Qualifying Replacement Railcars, the Sold Railcars to which the relevant Net Disposition Proceeds relate.
“Register” has the meaning given to such term in Section 2.03(a).
“Regulation D” means Regulation D under the Securities Act.
“Regulation S” means Regulation S under the Securities Act.
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“Regulation S Book-Entry Notes” means the Unrestricted Book-Entry Notes and the Regulation S Temporary Book-Entry Notes.
“Regulation S Temporary Book-Entry Note” means Equipment Notes initially sold outside the United States in reliance on Regulation S, represented by a single temporary global note in fully registered form, without interest coupons, the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for a Regulation S Temporary Book-Entry Note inscribed thereon.
“Reimbursable Services” has the meaning given to such term in Section 5.4 of the Servicing Agreement.
“Related Document Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Related Documents” has the meaning given to such term in Section 5.04(y)(i).
“Relative Documents” means the Service Provider Agreements, the Asset Transfer Agreements, this Master Indenture, the Series Supplements and the Securities together with all certificates, documents and instruments delivered pursuant to any of the foregoing.
“Relevant Information” means the information provided by the Service Providers to the Administrator that is required to enable the Administrator make the calculations contemplated by Section 3.10(a) through (e).
“Replacement Exchange” means the acquisition by the Issuer of one or more Qualifying Replacement Railcars with all or a portion of the Net Disposition Proceeds from a Permitted Discretionary Sale, a Purchase Option Disposition or an Involuntary Railcar Disposition, in each case within the Replacement Period applicable to such Railcar Disposition, as provided in Section 5.03.
“Replacement Period” means, with respect to the Issuer’s use of all or any portion of Net Disposition Proceeds as permitted in accordance with this Master Indenture, the period beginning on the date of the applicable Railcar Disposition and ending on the earlier of (i) either (A) the 180th day after the date of the Issuer’s receipt of all Net Disposition Proceeds from such Railcar Disposition, or (B) if all Railcar Dispositions occurring during a single Collection Period in the aggregate relate to more than fifty percent (50%) of the Adjusted Value of all Portfolio Railcars in existence at beginning of such Collection Period, the 90th day after the date of the Issuer’s receipt of all Net Disposition Proceeds from such Railcar Disposition, and (ii) the occurrence of an Event of Default.
“Required Expense Amount” means, with respect to a Payment Date, an amount equal to the sum of (i) the Operating Expenses payable on such Payment Date, consisting of all Operating Expenses actually incurred by the Service Providers and not previously reimbursed and the amounts shown on all invoices received from the Service Providers for the
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reimbursement or payment of Operating Expenses due or to become due on or before such Payment Date and not previously paid or reimbursed, (ii) a reserve amount to be deposited for Operating Expenses that are due and payable during the period beginning on such Payment Date and ending on (but excluding) the next Payment Date and (iii) a reserve amount to be deposited for Prospective Operating Expenses.
“Required Expense Deposit” has the meaning given to such term in Section 3.10(a)(ii).
“Required Expense Reserve” means the sum of the amounts described in clauses (ii) and (iii) in the definition of “Required Expense Amount.”
“Required Modification” means any alteration or modification of a Portfolio Railcar required by the AAR, the FRA, the United States Department of Transportation or any other United States or state governmental agency or any other applicable law (including without limitation, the laws of Mexico, Canada or any of their respective states and territories (as applicable)) and required by such entity as a condition of continued use or operation of such Railcar in interchange.
“Requisite Majority” means Holders that, individually or in the aggregate, own more than fifty percent (50%) of the then Outstanding Principal Balance or, as the case may be, the Outstanding Stated Amount of the Senior Class (other than Securities owned by the Issuer Group Members).
“Responsible Officer” means, with respect to the subject matter of any covenant, agreement or obligation of any party contained in any Operative Agreement, the President, or any Vice President, Assistant Vice President, Treasurer, Assistant Treasurer or other officer, who in the normal performance of his or her operational responsibility would have knowledge of such matter and the requirements with respect thereto; and with respect to the Indenture Trustee, any Vice President, Assistant Vice President, Assistant Treasurer, Assistant Secretary, Corporate Trust Officer or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers, in each case, having direct responsibility for the administration of this Indenture; and when used in connection with the Issuer, shall include (i) any such officer of the Servicer or the Administrator acting on behalf of the Issuer under the applicable Service Provider Agreement, as the case may be, (ii) any such officer of the Member, or (iii) any such officer of a manager of the Member.
“Rider” means a schedule or rider to a master lease agreement between the lessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Rating Services, a S&P Global Ratings business, or any successor to such entity’s business of rating securities, or, if such entity or its successor
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shall for any reason no longer perform the functions of a securities rating agency, “S&P” shall be deemed to refer to any other nationally recognized rating agency designated by the Issuer.
“Schedule” means a schedule or rider to a master lease agreement between the lessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“Scheduled Principal Payment Amount” means, for the Notes of any Series or Class, as applicable, on any Payment Date, the excess, if any, of (x) the then Outstanding Principal Balance of such Series or Class of Notes, as applicable, over (y) the Scheduled Targeted Principal Balance of such Series or Class, as applicable, for such Payment Date.
“Scheduled Targeted Principal Balance” means, for each Class of Notes within a Series and for any Payment Date, the amount identified as such for that Class in the related Series Supplement, as it may be adjusted from time to time in accordance with Section 3.14.
“Scrap Value Disposition” has the meaning given to such term in Section 5.03(a)(iv).
“Section 385 Controlled Partnership” has the meaning set forth in Treasury Regulation Section 1.385-1(c)(1) for a “controlled partnership”.
“Section 385 Expanded Group” has the meaning set forth in Treasury Regulation Section 1.385-1(c)(4) for an “expanded group”.
“Secured Obligations” has the meaning given such term in the Granting Clause.
“Secured Parties” means the holders of and/or obligees in respect of the Secured Obligations, including without limitation the Holders, the Liquidity Facility Providers (other than any Liquidity Facility Provider whose related Liquidity Facility Documents are identified in a Series Supplement as being excluded from the Secured Obligations), the Servicer, the Administrator, the Insurance Manager, and the Hedge Providers.
“Securities” means the Notes and the Class E Certificates.
“Securities Accounts” means all “securities accounts” as defined in Article 9 of the UCC.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Registrar” has the meaning given to such term in Section 2.03(a).
“Security Entitlements” means all “security entitlements” as defined in Article 9 of the UCC.
“Security Interests” means the security interests and other Encumbrances granted or expressed to be granted in the Collateral pursuant to this Master Indenture.
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“Seller” has the meaning given to such term in the applicable Asset Transfer Agreement.
“Senior Claim” has the meaning given to such term in Section 11.01(a).
“Senior Claimant” has the meaning given to such term in Section 11.01(a).
“Senior Class” means (a) initially, all Outstanding Class A Equipment Notes, (b) on and after the payment in full of all Outstanding Obligations with respect to the Class A Equipment Notes, all Outstanding Class B Equipment Notes, (c) on and after the payment in full of all Outstanding Obligations with respect to the Class A Equipment Notes and Class B Equipment Notes, all Outstanding Class C Equipment Notes, (d) on and after the payment in full of all Outstanding Obligations with respect to the Equipment Notes, all Outstanding Subordinated Notes and (e) on and after the payment in full of all Outstanding Obligations with respect to the Notes, all Outstanding Class E Certificates.
“Senior Hedge Payments” means all payments owed by the Issuer under a Hedge Agreement (including any Hedge Termination Value owed by the Issuer to the extent not satisfied from funds received by a Hedge Provider from any replacement Hedge Provider) except for Subordinated Hedge Payments.
“Senior Note” has the meaning given to such term in Section 2.17(d).
“Series” means any series of Securities established pursuant to a Series Supplement or, in the case of the Class E Certificates, purchased pursuant to the Certificate Purchase Agreement.
“Series 2021-1 Notes” means the Initial Notes.
“Series Account” has the meaning given to such term in Section 3.01(a).
“Series Issuance Date” means, with respect to any Series of Additional Notes, the date on which the Securities of such Series are issued in accordance with the provisions of Section 9.06 and the related Series Supplement.
“Series Supplement” means any supplement to this Master Indenture, other than an Indenture Supplement, which sets forth the Principal Terms and other terms and conditions of a Series of Securities issued under this Master Indenture and such Series Supplement.
“Service Provider” means each of or all of (as the context may require) the Servicer, the Insurance Manager, the Indenture Trustee (including in its capacities as Paying Agent and Securities Registrar), the Administrator and the Liquidity Facility Providers.
“Service Provider Agreements” means, when used with respect to any Service Provider, the Servicing Agreement, the Insurance Agreement, the Administrative Services Agreement, this Master Indenture, or, in the case of a Liquidity Facility Provider, the applicable agreements providing for payment or reimbursement of fees and expenses of such Liquidity
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Facility Provider, in each case as applicable to such Service Provider which is party thereto, or any of the foregoing individually as the context requires.
“Service Provider Fees” means (a) all fees, expenses and indemnities due or reimbursable to the Indenture Trustee (including in its capacities as Paying Agent and Securities Registrar), the Servicer, the Insurance Manager and the Administrator in accordance with the applicable agreements with such Service Providers (including the Relative Documents), including the Indenture Trustee Fees due to the Indenture Trustee hereunder and the Servicing Fee due to the Servicer under the Servicing Agreement, but excluding any such amounts that constitute Operating Expenses, and (b) all fees and expenses (but not reimbursement or indemnification obligations) payable to the Liquidity Facility Providers in connection with the Liquidity Facilities.
“Servicer” means TILC, in its capacity as Servicer under the Servicing Agreement, including its successors in interest, until another Person shall have become the “Servicer” under such agreement, after which “Servicer” shall mean such other Person.
“Servicer Advance” has the meaning given to such term in the Servicing Agreement.
“Servicer Default” has the meaning given to such term in Section 8.2 of the Servicing Agreement.
“Servicer Optional Modification Cap” has the meaning given to such term in Section 3.11(a)(8).
“Servicer Optional Modification Expense” has the meaning given to such term in Section 3.11(a)(8).
“Servicer Termination Event” means the occurrence of any event specified in the Servicing Agreement (and with respect to events that include a cure or grace period or notice requirement, following the elapsing of such period without cure or the delivery of such notice, as applicable) which gives the Issuer thereunder or its assignees the right to effect a replacement of the current Servicer thereunder with a successor or replacement Servicer.
“Servicer’s Fleet” means the TILC Fleet as of the Closing Date or as of any date thereafter and does not include Portfolio Railcars and, if a Successor Servicer shall have been appointed pursuant to the Servicing Agreement, “Servicer’s Fleet” means all railcars owned, leased or managed by such Servicer or its Affiliates, in either case, other than Portfolio Railcars.
“Servicing Agreement” means the Railroad Car Management, Operation, Maintenance, Servicing and Remarketing Agreement dated as of the Initial Closing Date between the Issuer and TILC, as initial Servicer thereunder.
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“Servicing Fee” means, for any Payment Date, the compensation payable to the Servicer on such Payment Date in accordance with the terms of, and designated as such in, the Servicing Agreement.
“Similar Law” has the meaning given to such term in Section 2.11(h)(i).
“Sold Railcars” has the meaning given to such term in Section 5.03(a)(iii)(B).
“Stated Interest” means, with respect to any Note, interest payable on such Note at the Stated Rate for such Note.
“Stated Interest Amount” means, with respect to any Series of Notes (or Class thereof), that amount of Stated Interest due and payable on such Series of Notes (or Class thereof) on a Payment Date, including any Stated Interest due and payable on a prior Payment Date that was not paid on such Payment Date, as described in the last sentence of Section 3.04(c).
“Stated Interest Shortfall” has the meaning given to such term in Section 3.10(d)(i).
“Stated Rate” means, as specified in the related Series Supplement, the rate of interest payable on a specific Note of the related Series or Class.
“STB” means the Surface Transportation Board of the United States Department of Transportation or any successor thereto.
“Stock” means all shares of capital stock, all beneficial interests in trusts, all partnership interests (general or limited) in a partnership, all membership interests in limited liability companies, all ordinary shares and preferred shares and any options, warrants and other rights to acquire such shares or interests, as applicable.
“SUBI Certificate” means, with respect to Railcars that are conveyed to the Issuer from time to time so as to become Portfolio Railcars and that bear Trinity Marks, a SUBI Certificate evidencing a SUBI interest in such Trinity Marks under the Marks Company Trust Agreement.
“Subject Note” has the meaning given to such term in Section 2.17(a).
“Subject Securities” has the meaning given to such term in Section 2.17(a).
“Subordinated Hedge Payment” means (i) a payment on account of a Hedge Termination Value owed by the Issuer as a result of an early termination of a Hedge Agreement following an event of default or termination event in relation to which the Hedge Provider is the defaulting party or the sole affected party (except in the case of a termination event related to illegality or a termination event related to a tax event) and (ii) any Hedge Partial Termination Value payable by the Issuer as to which Rating Agency Confirmation has not been received.
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“Subordinated Note” means any one of the promissory notes (representing any of the Class R Notes) executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Series Supplement.
“Subordinated Note Amortization Date” means the earlier of (i) the Rapid Amortization Date and (ii) the first Payment Date upon which all amounts owing in respect of the Class A Equipment Notes, the Class B Equipment Notes and the Class C Equipment Notes (and all other obligations senior thereto in accordance with the Flow of Funds) have been paid in full in accordance with the Flow of Funds.
“Subordinated Note Purchase Agreement” with respect to a Series of Subordinated Notes, has the meaning given to such term in the related Series Supplement.
“Subordinated Railcar Advance Rate” means, as of any Payment Date and as determined for the Subordinated Notes, and giving effect to all Flow of Funds allocations and other transactions occurring on such Payment Date, the percentage equivalent of a fraction, the numerator of which is the aggregate Outstanding Principal Balance of the Subordinated Notes as of such Payment Date, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such Payment Date.
“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.
“Successor Administrator” has the meaning given to such term in Section 4(d) of the Administrative Services Agreement.
“Successor Insurance Manager” has the meaning given to such term in Section 6.3(b) of the Insurance Agreement.
“Successor Servicer” has the meaning given to such term in Section 8.6 of the Servicing Agreement.
“Supplier” means the Person that supplies or installs a Required Modification or Optional Modification and to whom payment for the Purchase Price of such Required Modification or Optional Modification is to be made.
“Supporting Obligation” means all “supporting obligations” as defined in Article 9 of the UCC.
“Tax” and “Taxes” mean any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, loss, damage, liability,
ANNEX A
Page 41


expense, additions to tax and additional amounts or costs incurred or imposed with respect thereto) imposed or otherwise assessed by the United States or by any state, local or foreign government (or any subdivision or agency thereof) or other taxing authority, including, without limitation: taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth and similar charges; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, taxes on goods and services, gains taxes, license, registration and documentation fees, customs duties, tariffs, and similar charges.
“Third Party Event” has the meaning given to such term in Section 5.04.
“TILC” means Trinity Industries Leasing Company, a Delaware corporation.
“TILC Agreements” means the Operative Agreements to which TILC is or will be a party.
“TILC Fleet” means all Railcars owned, leased or managed by TILC as of any date of determination but excluding the Portfolio Railcars.
“TILC Green Bond Program” means the Trinity Industries Leasing Company Green Financing Framework dated January 2021, as may be amended, modified or replaced from time to time.
“Total Loss” means, with respect to any Railcar (a) if the same is subject to a Lease, an Event of Loss (as defined in such Lease) or the like (however so defined); or (b) if the same is not subject to a Lease, (i) its actual, constructive, compromised, arranged or agreed total loss, (ii) its destruction, damage beyond economic repair or being rendered unfit for commercial use for any reason whatsoever, (iii) its requisition for title, confiscation, restraint, detention, forfeiture or any compulsory acquisition or seizure or requisition for hire (other than a requisition for hire for a temporary period not exceeding 180 days) by or under the order of any government (whether civil, military or de facto) or public or local authority or (iv) its hijacking, theft or disappearance, resulting in loss of possession by the owner or operator thereof for a period of ninety (90) consecutive days or longer. A Total Loss with respect to any Railcar shall be deemed to occur on the date on which such Total Loss is deemed pursuant to the relevant Lease to have occurred or, if such Lease does not so deem or the relevant Railcar is not subject to a Lease, (A) in the case of an actual total loss or destruction, damage beyond economic repair or being rendered permanently unfit, the date on which such loss, destruction, damage or rendering occurs (or, if the date of loss or destruction is not known, the date on which the relevant Railcar was last heard of); (B) in the case of a constructive, compromised, arranged or agreed total loss, the earlier of (1) the date 30 days after the date on which notice claiming such total loss is issued to the insurers or brokers and (2) the date on which such loss is agreed or compromised by the insurers; (C) in the case of requisition for title, confiscation, restraint, detention, forfeiture, compulsory acquisition or seizure, the date on which the same takes effect; (D) in the case of a requisition for hire, the expiration of a period of 180 days from the date on which such requisition commenced (or, if earlier, the date upon which insurers
ANNEX A
Page 42


make payment on the basis of a Total Loss); or (E) in the case of clause (iv) above, the final day of the period of 90 consecutive days referred to therein.
“Transaction Parties” means the Issuer, TILC, the Indenture Trustee, the Initial Purchasers or any of their respective Affiliates.
“Transferee” has the meaning given to such term in Section 2.17(a).
“Transferred Security” has the meaning given to such term in Section 2.17(a).
“Treasury Regulations” means the income tax regulations promulgated under the Code.
“Trinity” means Trinity Industries, Inc., a Delaware corporation.
“Trinity Marks” means the Marks owned by the Marks Company.
“TRLWT” means Trinity Rail Leasing Warehouse Trust, a Delaware statutory trust.
“TRLWT Agreements” means the Operative Agreements to which TRLWT is or will be a party.
“UCC” means the Uniform Commercial Code as enacted in the State of New York, or when the context implies, the Uniform Commercial Code as in effect from time to time in any other applicable jurisdiction.
“UCC Securities” means any obligations of an issuer or any shares, participations or other interests in an issuer or in property or an enterprise of an issuer that (i) are represented by a certificate representing a security in bearer or registered form, or the transfer of which may be registered upon books maintained for that purpose by or on behalf of the issuer, (ii) are one of a class or series or by its terms is divisible into a class or series of shares, participations, interests or obligations and (iii)(A) are, or are of a type, dealt with or traded on securities exchanges or securities markets or (B) are a medium for investment and by their terms expressly provide that they are a security governed by Article 8 of the UCC.
“Unit Inspection” has the meaning given to such term in Section 5.04(y)(i).
“United States Person” and “U.S. Person” have the meanings given to such terms in Regulation S under the Securities Act.
“Unrestricted Book-Entry Note” shall have the meaning given to such term in Section 2.01(c)(iv), the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for an Unrestricted Book-Entry Note inscribed thereon.
“U.S. Bank” means U.S. Bank National Association, a national banking association.
ANNEX A
Page 43


“U.S. GAAP” means generally accepted accounting principles in the United States, as in effect from time to time.
“U.S. Government Obligations” has the meaning given to such term in Section 12.02(a).
“U.S.-Restricted Security” has the meaning given to such term in Section 2.17(b).
“WTC” means Wilmington Trust Company, a Delaware trust company.
ANNEX A
Page 44


Exhibit 10.2.2
EXECUTION VERSION









SERIES 2021-1
SUPPLEMENT

TRP 2021 LLC,
as Issuer,

and

U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee

dated as of June 15, 2021

______________________________

SERIES 2021-1 NOTES
______________________________





TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
Section 1.01 Definitions 1
ARTICLE II THE SERIES 2021-1 NOTES 4
Section 2.01 Designation of Series; Series 2021-1 Notes 4
Section 2.02 Grant of Security Interest in 2021-1 Series Account 4
Section 2.03 Authentication and Delivery 4
Section 2.04 Interest Payments on the Series 2021-1 Notes 5
Section 2.05 Principal Payments on the Series 2021-1 Notes 5
Section 2.06 Prepayment of Principal on the Series 2021-1 Notes 6
Section 2.07 Manner of Payment 8
Section 2.08 Restrictions on Transfer 8
Section 2.09 Final Maturity Date 8
Section 2.10 Liquidity Facility Provider 8
ARTICLE III 2021-1 SERIES ACCOUNT 8
Section 3.01 2021-1 Series Account 8
Section 3.02 Distributions from 2021-1 Series Account 9
Section 3.03 Liquidity Reserve Target Amount 9
ARTICLE IV CONDITIONS TO ISSUANCE 9
Section 4.01 Conditions to Issuance 9
ARTICLE V REPRESENTATIONS AND WARRANTIES 9
Section 5.01 Master Indenture Representations and Warranties 9
ARTICLE VI MISCELLANEOUS PROVISIONS 9
Section 6.01 Ratification of Master Indenture 9
Section 6.02 Counterparts 9
Section 6.03 Governing Law 10
Section 6.04 Notices to the Rating Agency 10
Section 6.05 Notices to Liquidity Facility Provider 10
Section 6.06 Amendments and Modifications 10

EXHIBITS

EXHIBIT A Form of Class A Note
EXHIBIT B Form of Class B Note

SCHEDULES

SCHEDULE 1 Description of Initial Railcars
SCHEDULE 2 Description of Initial Leases
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SERIES 2021-1 SUPPLEMENT, dated as of June 15, 2021 (this “Series 2021-1 Supplement”), issued pursuant to, and incorporating the terms of, the Master Indenture, dated as of the date hereof (as amended, modified or supplemented from time to time, the “Master Indenture”, and, together with this Series 2021-1 Supplement, the “Series 2021-1 Indenture”) between TRP 2021 LLC (formerly known as Trinity Rail Leasing 2012 LLC), a Delaware limited liability company (the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Indenture Trustee (the “Indenture Trustee”).
WITNESSETH THAT:
WHEREAS, the Issuer and the Indenture Trustee wish to set forth the Principal Terms of a Series of Equipment Notes with two Classes (the Class A Notes and the Class B Notes) within such Series to be issued pursuant to this Series 2021-1 Supplement;
WHEREAS, the Issuer will separately be issuing the Class E Certificates pursuant to the terms of the Master Indenture and the Certificate Purchase Agreement; and
NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. (a) Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Master Indenture. Whenever used in this Series 2021-1 Supplement, the following words and phrases shall have the following meanings, and the definitions of such terms are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.
“144A Book-Entry Notes” means Series 2021-1 Notes substantially in the form attached as Exhibit A or Exhibit B hereto, with the applicable legend for 144A Book-Entry Notes required by Section 2.02 of the Master Indenture inscribed on the face thereof.
“2021-1 Series Account” means the Series Account for the Series 2021-1 Notes, established in accordance with Section 3.01 hereof and Sections 3.01 and 3.07 of the Master Indenture. The account number of the 2021-1 Series Account is 266080005.
“Average Life Date” is defined in Section 2.06(c).
“Certificate Purchase Agreement” means the Certificate Purchase and Agency Agreement dated as of the date hereof among the Issuer, TRP 2021 Railcar Holdings, LLC, as certificate purchaser and RIV 2013 Rail Holdings LLC, as certificate agent.
“Class A Interest Rate” means two and seven hundredths percent (2.07%) per annum.
“Class A Note” means an Equipment Note substantially in the form of Exhibit A.
“Class A Optional Redemption” is defined in Section 2.06(a).
“Class A Optional Redemption Date” is defined in Section 2.06(a).
“Class A Redemption Premium” is defined in Section 2.06(a).
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“Class A Stated Interest Amount” means, for any Payment Date, an amount equal to the “Stated Interest Amount” (as defined in the Master Indenture) calculated with respect to the Class A Notes. The Class A Stated Interest Amount constitutes the Stated Interest Amount for the Class A Notes.
“Class B Interest Rate” means three and six hundredths percent (3.06%) per annum.
“Class B Note” means an Equipment Note substantially in the form of Exhibit B.
“Class B Optional Redemption” is defined in Section 2.06(b).
“Class B Optional Redemption Date” is defined in Section 2.06(b).
“Class B Redemption Premium” is defined in Section 2.06(b).
“Class B Stated Interest Amount” means, for any Payment Date, an amount equal to the “Stated Interest Amount” (as defined in the Master Indenture) calculated with respect to the Class B Notes. The Class B Stated Interest Amount constitutes the Stated Interest Amount for the Class B Notes.
“Closing Date” for the Series 2021-1 Notes means June 15, 2021.
“Control Party” for the Series 2021-1 Notes means the Majority Holders.
“H.15(519)” is defined in Section 2.06(c).
“Initial Purchasers” means each “Initial Purchaser” within the meaning of and as defined in the Note Purchase Agreement.
“Liquidity Facility Provider” means Landesbank Hessen-Thüringen Girozentrale, a legal entity under German public law.
“Majority Holders” means with respect to the Series 2021-1 Notes, as of any date of determination, Holders of Series 2021-1 Notes that, individually or in the aggregate, evidence more than fifty percent (50%) of the then aggregate Outstanding Principal Balance of the Series 2021-1 Notes.
“Marginal Interest” is defined in Section 2.04(b).
“Note Purchase Agreement” means the Note Purchase Agreement, dated May 4, 2021, among, inter alios, the Issuer and the Initial Purchasers signatory thereto.
“Offering Circular” means the Issuer’s final offering circular dated May 4, 2021, relating to the offering of the Series 2021-1 Notes.
“Optional Redemption” means a voluntary prepayment by the Issuer of all of the Outstanding Principal Balance of the Series 2021-1 Notes (or a Class thereof) in accordance with the terms of this Series 2021-1 Supplement.
“Rapid Amortization Additional Interest Rate” means four percent (4%) per annum.
“Rapid Amortization Date” means the date, if any, on which the Rapid Amortization Event occurs with respect to the Series 2021-1 Notes.
“Rapid Amortization Event” means, with respect to the Series 2021-1 Notes, that the aggregate Outstanding Principal Balance of the Series 2021-1 Notes (after all payments on the
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Series 2021-1 Notes on the applicable Payment Date) exceeds zero on the Payment Date falling in June 2027.
“Rating Agency” means, in connection with the Series 2021-1 Notes, S&P and KBRA.
“Redemption Premium” means the Class A Redemption Premium or the Class B Redemption Premium, as applicable, which amount shall be the Redemption Premiums for each respective Class of Series 2021-1 Notes.
“Regulation S Temporary Book-Entry Notes” means Series 2021-1 Notes in the form attached as Exhibit A or Exhibit B, as the case may be, with the applicable legend for Regulation S Temporary Book-Entry Notes required by Section 2.02 of the Master Indenture inscribed on the face thereof.
“Remaining Weighted Average Life” is defined in Section 2.06(c).
“Scheduled Targeted Principal Balance” means (a) with respect to the Class A Notes and each Payment Date, the amount set forth opposite such Payment Date on Appendix B-1 to the Offering Circular under the column titled “Principal Balance ($)”; and (b) with respect to the Class B Notes and each Payment Date, the amount set forth opposite such Payment Date on Appendix B-2 to the Offering Circular under the column titled “Principal Balance ($)”; provided, that the Scheduled Targeted Principal Balance for each Class of the Series 2021-1 Notes is subject to adjustment from time to time pursuant to Section 3.14 of the Master Indenture.
“Series 2021-1 Final Maturity Date” means the Payment Date occurring in June 2051, which shall constitute the Final Maturity Date with respect to the Series 2021-1 Notes.
“Series 2021-1 Holders” means the Holders of the Series 2021-1 Notes, or any Class of such Notes, as the context may require.
“Series 2021-1 Issuance Expenses” means the Issuance Expenses relating to the issuance of the Series 2021-1 Notes.
“Series 2021-1 Notes” means Notes, designated as the Class A Notes and Class B Notes, in each case, to be issued on the Closing Date and having the terms and conditions specified in this Series 2021-1 Supplement, substantially in the respective form of Exhibit A and Exhibit B hereto, and including any and all replacements, extensions, substitutions or renewals of such Notes.
“Series 2021-1 Optional Redemption Date” is defined in Section 2.06(d).
“Series Account” means, with respect to the Series 2021-1 Notes, the 2021-1 Series Account.
“Stated Interest Amount” means, with respect to the Series 2021-1 Notes and any Payment Date, an amount equal to the Class A Stated Interest Amount and the Class B Stated Interest Amount.
“Stated Rate” means (i) with respect to the Class A Notes, the Class A Interest Rate and (ii) with respect to the Class B Notes, the Class B Interest Rate.
“Treasury Rate” is defined in Section 2.06(c).
“Unrestricted Book-Entry Notes” means Series 2021-1 Notes substantially in the form of Exhibit A or Exhibit B, with the applicable legend required by Section 2.02 of the Master Indenture for Unrestricted Book-Entry Notes inscribed on the face thereof.
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ARTICLE II
THE SERIES 2021-1 NOTES
Section 2.01 Designation of Series; Series 2021-1 Notes.
(a)There is hereby created a Series of Notes under the Series 2021-1 Indenture to be known as the “Series 2021-1 Notes” or, with respect to any Equipment Notes, the “Green Secured Railcar Equipment Notes, Series 2021-1”.
(b)There is hereby created within the Series 2021-1 Notes two separate Classes, designated as the “Class A Notes” and the “Class B Notes”. The Series 2021-1 Notes will be issued in the initial principal balance as set forth below:
(i) the Class A Notes will be issued in the initial principal balance of Three Hundred Thirty-Four Million Dollars ($334,000,000.00); and
(ii) the Class B Notes will be issued in the initial principal balance of Twenty One Million Dollars ($21,000,000.00).
(c)The Class A Notes are classified as “Initial Notes”, “Series 2021-1 Notes”, “Class A Equipment Notes” and “Fixed Rate Notes”, as each such term is used in the Master Indenture. The Class B Notes are classified as “Initial Notes”, “Series 2021-1 Notes”, “Class B Equipment Notes” and “Fixed Rate Notes”, as each such term is used in the Master Indenture. The Series 2021-1 Notes will be rated on the Closing Date by S&P and KBRA, and the Series 2021-1 Notes will be paid in accordance with the Flow of Funds.
(d)The first Payment Date with respect to the Series 2021-1 Notes shall be the Payment Date in July 2021.
(e)Payments of principal on the Series 2021-1 Notes shall be payable from funds on deposit in the 2021-1 Series Account or otherwise at the times and in the amounts set forth in Article III of the Master Indenture and Sections 2.05, 2.06 and 3.02 of this Series 2021-1 Supplement.
(f)The Issuer shall pay Series 2021-1 Issuance Expenses out of the proceeds of the Series 2021-1 Notes on the Closing Date, the proceeds of the issuance of the Class E Certificates on the Closing Date and/or from Capital Contributions made to the Issuer on or prior to the Closing Date.
Section 2.02 Grant of Security Interest in 2021-1 Series Account. The Issuer hereby pledges, transfers, assigns, and otherwise conveys to the Indenture Trustee for the benefit and security of the Series 2021-1 Holders, and grants to the Indenture Trustee for the benefit and security of the Series 2021-1 Holders a security interest in and Encumbrance on, all of the Issuer’s right, title and interest, whether now existing or hereafter created or acquired and wherever located, in, to and under the assets and property described below: (a) the 2021-1 Series Account, and all funds from time to time on deposit therein; and (b) all Proceeds, accessions, profits, products, income benefits, substitutions and replacements, whether voluntary or involuntary, of and to any of the property of the Issuer described in the preceding clause (a).
Section 2.03 Authentication and Delivery.
(a)On the Closing Date, the Issuer shall sign, and shall direct the Indenture Trustee in writing pursuant to Section 2.01(b) of the Master Indenture to duly authenticate, and
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the Indenture Trustee, upon receiving such direction, (i) shall authenticate, subject to compliance with the conditions precedent set forth in Section 4.01 hereof, the Series 2021-1 Notes in accordance with such written directions, and (ii) subject to compliance with the conditions precedent set forth in Section 4.01 hereof, shall deliver such Series 2021-1 Notes to the Initial Purchasers in accordance with such written directions.
(b)The Series 2021-1 Notes are not being registered with the U.S. Securities and Exchange Commission and, after their sale to the Initial Purchasers in accordance with the Note Purchase Agreement may not be sold, transferred or otherwise disposed of except in compliance with the provisions of the Master Indenture and as set forth in the applicable Series 2021-1 Notes.
(c)In accordance with Section 2.01(c) of the Master Indenture, any Class A Equipment Notes or Class B Equipment Notes of the Series 2021-1 Notes resold in reliance on Rule 144A shall be represented by a 144A Book-Entry Note. Any Class A Equipment Notes or Class B Equipment Notes of the Series 2021-1 Notes sold in reliance on Regulation S shall initially be represented by a Regulation S Temporary Book-Entry Note and shall be exchangeable for interests in the related Unrestricted Book-Entry Note.
(d)The Series 2021-1 Notes shall be executed by manual or facsimile signature on behalf of the Issuer by a Responsible Officer and shall be substantially in the form of Exhibit A and Exhibit B, as the case may be, with the appropriate legend required by Section 2.02 of the Master Indenture inscribed on the face thereof.
Section 2.04 Interest Payments on the Series 2021-1 Notes.
(a)Interest on Series 2021-1 Notes. Interest on the Outstanding Principal Balance of each Series 2021-1 Note shall accrue during each Interest Accrual Period (i) at the Class A Interest Rate, in the case of the Class A Notes, and (ii) at the Class B Interest Rate, in the case of the Class B Notes, and, in each case, will be calculated on the basis of a 360-day year consisting of twelve 30-day months and be due and payable in arrears on each Payment Date. Notwithstanding anything to the contrary in the Master Indenture or this Series 2021-1 Supplement, the initial Interest Accrual Period for the Series 2021-1 Notes shall begin on the Closing Date and end on (but exclude) July 19, 2021.
(b)Additional Interest. If any interest payment on any Class of the Series 2021-1 Notes is not timely paid in full when due, such overdue interest will bear interest at the applicable Stated Rate, payable as Additional Interest to the extent permitted by applicable law at the times and subject to the priorities set forth in the Flow of Funds. If a Rapid Amortization Event occurs with respect to a Class of Series 2021-1 Notes, the Issuer will also be required to pay the Holders of such Class of Series 2021-1 Notes, as part of, Additional Interest, interest on each Payment Date occurring on and after the Rapid Amortization Date in an amount equal to the Rapid Amortization Additional Interest Rate multiplied by the Outstanding Principal Balance of such Class of Series 2021-1 Notes (after giving effect to all payments on the relevant Class of Series 2021-1 Notes made on such day) (such interest, the “Marginal Interest”) to the extent permitted by applicable law at the times and subject to the priorities set forth in the Flow of Funds. Such Marginal Interest due (if any) shall be (i) calculated on the basis of a 360-day year consisting of twelve 30-day months and (ii) due and payable in arrears on each Payment Date on or after the Rapid Amortization Date.
Section 2.05 Principal Payments on the Series 2021-1 Notes. The Scheduled Principal Payment Amount calculated for the Series 2021-1 Notes for each Payment Date shall be payable to the Series 2021-1 Holders on each Payment Date from amounts deposited in
5

the 2021-1 Series Account on such Payment Date as provided in (and subject to the provisions of) the Flow of Funds under the Master Indenture and Section 3.02 hereof. At any time that an Early Amortization Event or an Event of Default is then continuing, or if a Rapid Amortization Event with respect to the Series 2021-1 Notes has occurred, then, in addition to the foregoing, the Outstanding Principal Balance of the Series 2021-1 Notes shall be payable on each Payment Date to the extent that amounts are available for such purpose in accordance with the Flow of Funds and Section 3.02 hereof.
Section 2.06 Prepayment of Principal on the Series 2021-1 Notes. (a) No Class A Optional Redemption may occur prior to the first anniversary of the Closing Date. Subject to the restrictions in Sections 3.12 and 3.13 of the Master Indenture, the Issuer will have the option to prepay, in an Optional Redemption on any Business Day occurring on or after the first anniversary of the Closing Date (each such date, a “Class A Optional Redemption Date”), all or a portion of the Outstanding Principal Balance of the Class A Notes (such redemption, a “Class A Optional Redemption”), for a Redemption Price equal to the sum of (i) the amount of the Outstanding Principal Balance of the Class A Notes being redeemed on such Class A Optional Redemption Date, plus (ii) accrued and unpaid interest (including Additional Interest, if any) thereon to the Class A Optional Redemption Date, plus (iii) if occurring on or prior to the second anniversary of the Closing Date, a redemption premium (the “Class A Redemption Premium”) calculated as follows:
The Class A Redemption Premium will be an amount equal to the product of (x) a fraction (expressed as a percentage), the numerator of which is the amount of the Outstanding Principal Balance of the Class A Notes being redeemed and the denominator of which is the Outstanding Principal Balance of all Class A Notes immediately prior to such redemption and (y) the excess, if any, of (i) the sum of the present values of all the scheduled payments of principal and interest based upon Scheduled Targeted Principal Balances of the Class A Notes from the Class A Optional Redemption Date to and including the second anniversary of the Closing Date (assuming full prepayment on such date) discounted monthly to the Class A Optional Redemption Date at a rate equal to the Treasury Rate plus three-quarters of one percent (0.75%), based on a 360-day year of twelve 30-day months, over (ii) the Outstanding Principal Balance of the Class A Notes, plus any accrued but unpaid interest thereon.
(b)No Class B Optional Redemption may occur prior to the first anniversary of the Closing Date or while any Class A Notes are Outstanding unless the same are concurrently redeemed in full (or, if no Early Amortization Event has occurred and is continuing, a partial Optional Redemption of the Class B Notes may be effected if the Issuer concurrently effects an Optional Redemption in part of the Class A Notes within such Series in the same proportion as the Optional Redemption in part of the Class B Notes). Subject to the restrictions in Sections 3.12 and 3.13 of the Master Indenture, the Issuer will have the option to prepay, in an Optional Redemption on any on any Business Day occurring on or after the first anniversary of the Closing Date (each such date, a “Class B Optional Redemption Date”), all or a portion of the Outstanding Principal Balance of the Class B Notes (any such redemption, a “Class B Optional Redemption”), for a Redemption Price equal to the sum of (i) the amount of the Outstanding Principal Balance of the Class B Notes being redeemed on such Class B Optional Redemption Date, plus (ii) accrued and unpaid interest (including Additional Interest, if any) thereon to the Class B Optional Redemption Date, plus (iii) if occurring on or prior to the third anniversary of the Closing Date, a redemption premium (the “Class B Redemption Premium”) calculated as follows:
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The Class B Redemption Premium will be an amount equal to the product of (x) a fraction (expressed as a percentage), the numerator of which is the amount of the Outstanding Principal Balance of the Class B Notes being redeemed and the denominator of which is the Outstanding Principal Balance of all Class B Notes immediately prior to such redemption and (y) the excess, if any, of (i) the sum of the present values of all the scheduled payments of principal and interest based upon Scheduled Targeted Principal Balances of the Class B Notes from the Class B Optional Redemption Date to and including the third anniversary of the Closing Date (assuming full prepayment on such date), discounted monthly to the Class B Optional Redemption Date at a rate equal to the Treasury Rate plus three-quarters of one percent (0.75%), based on a 360-day year of twelve 30-day months; over (ii) the aggregate Outstanding Principal Balance of the Class B Notes plus any accrued but unpaid interest thereon.
(c)For purposes of calculating the applicable Redemption Premium, the term “Treasury Rate” means, with respect to each applicable Series 2021-1 Note, a per annum rate (expressed as a monthly equivalent and as a decimal and, in the case of United States Treasury bills, converted to a bond equivalent yield), determined to be the per annum rate equal to the monthly yield to maturity for United States Treasury securities maturing on the Average Life Date of such applicable Series 2021-1 Note as determined by interpolation between the most recent weekly average yields to maturity for two series of United States Treasury securities, (i) one maturing as close as possible to, but earlier than, the Average Life Date of such Series 2021-1 Note and (ii) the other maturing as close as possible to, but later than, the Average Life Date of such Series 2021-1 Note, in each case, as published in the most recent H.15(519) (or, if a weekly average yield to maturity of United States Treasury securities maturing on the Average Life Date of such Series 2021-1 Note is reported in the most recent H.15(519), as published in H.15(519)). “H.15(519)” means “Statistical Release H.15(519), Selected Interest Rates,” or any successor publication published by the Board of Governors of the Federal Reserve System. The most recent H.15(519) means the latest H.15(519) which is published prior to the close of business on the third (3rd) Business Day preceding the scheduled prepayment date.
The term “Average Life Date” of each applicable Series 2021-1 Note means the date which follows the prepayment date by a period equal to the Remaining Weighted Average Life of such Series 2021-1 Note. The “Remaining Weighted Average Life” of a Series 2021-1 Note at the prepayment or determination date of such Series 2021-1 Note shall be the number of days equal to the quotient obtained by dividing (a) the sum of the products obtained by multiplying (i) the Scheduled Targeted Principal Balances for each remaining Payment Date (from the applicable Optional Redemption Date to the Payment Date occurring in June 2023, in the case of the Class A Notes, and the Payment Date occurring in June 2024, in the case of the Class B Notes, assuming full prepayment on such Payment Date, as applicable) by (ii) the number of days from and including the prepayment or determination date to but excluding the scheduled payment date of such principal payment, by (b) the Outstanding Principal Balance of the applicable Series 2021-1 Notes on such date of prepayment or determination. The Issuer will calculate (or cause to be calculated) the applicable Redemption Price and Redemption Premium (if any) and deliver such information in writing to the Indenture Trustee at the time that it gives notice of an Optional Redemption pursuant to Sections 3.12 and 3.13 of the Master Indenture.
(d)Subject to the restrictions in Sections 3.12 and 3.13 of the Master Indenture, the Issuer will have the option to prepay, in an Optional Redemption on any Business Day occurring following the Payment Date occurring in June 2024 (each such Payment Date, a “Series 2021-1 Optional Redemption Date”), all of the Outstanding
7

Principal Balance of the Series 2021-1 Notes, for the Redemption Price equal to the Outstanding Principal Balance of the Series 2021-1 Notes, plus accrued and unpaid interest thereon (including Additional Interest, if any) to the Series 2021-1 Optional Redemption Date; provided, however, that such Redemption Price shall not include any Redemption Premium.
(e)Any Optional Redemption may be funded with funds in the Collections Account, with the proceeds of Additional Notes or cash Capital Contributions or with any other funds of the Issuer.
(f)Notwithstanding anything herein to the contrary, no Redemption Premium will be due as a result of (i) any Permitted Discretionary Sales which, in the aggregate, are less than 25% of the sum of (x) the Adjusted Value of the Portfolio Railcars owned by the Issuer on the Initial Closing Date calculated as of the Initial Closing Date and (y) the Adjusted Value of the Portfolio Railcars acquired by the Issuer after the Initial Closing Date (if any) calculated as of the relevant Delivery Date, (ii) any Involuntary Railcar Dispositions, Purchase Option Dispositions or Scrap Value Disposition, or (iii) in respect of, or during, an Early Amortization Event or if an Event of Default shall have occurred and is continuing.
Section 2.07 Manner of Payment. Except as otherwise provided in Section 2.05 of the Master Indenture, all payments on the Series 2021-1 Notes payable on each Payment Date shall be paid to the Series 2021-1 Holders reflected in the Register as of the related Record Date by wire transfer of immediately available funds for receipt prior to 2:00 p.m. (New York City time) on such Payment Date. Any payments received by the Series 2021-1 Holders after 2:00 p.m. (New York City time) on any day shall be considered to have been received on the next succeeding Business Day.
Section 2.08 Restrictions on Transfer. On the Closing Date, the Issuer shall sell the Series 2021-1 Notes to the Initial Purchasers pursuant to the Note Purchase Agreement and deliver such Series 2021-1 Notes in accordance herewith and therewith. Thereafter, no Series 2021-1 Note may be sold, transferred or otherwise disposed of except in compliance with the provisions of the Master Indenture. Except as provided in the Master Indenture, the Indenture Trustee shall have no obligations or duties with respect to determining whether any transfers of the Series 2021-1 Notes are made in accordance with the Securities Act or any other law; provided that with respect to Definitive Notes, the Indenture Trustee shall enforce such transfer restrictions in accordance with the terms set forth in the Series 2021-1 Indenture.
Section 2.09 Final Maturity Date. The Outstanding Principal Balance of the Series 2021-1 Notes together with all accrued and unpaid interest (including all Additional Interest) thereon, and other amounts payable by the Issuer to the Series 2021-1 Holders pursuant to the terms of the Series 2021-1 Indenture, shall be due and payable in full on the earlier to occur of (i) the date on which the Series 2021-1 Notes have been accelerated in accordance with the provisions of Section 4.02 of the Master Indenture and (ii) the Series 2021-1 Final Maturity Date.
Section 2.10 Liquidity Facility Provider. All of the Issuer’s obligations to the Liquidity Facility Provider under the Initial Liquidity Facility shall be part of the Secured Obligations under the Master Indenture.
ARTICLE III
2021-1 SERIES ACCOUNT
Section 3.01 2021-1 Series Account. The Indenture Trustee shall establish on the Closing Date pursuant to Sections 3.01 and 3.07 of the Master Indenture and shall maintain,
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so long as any Series 2021-1 Note is Outstanding, an Indenture Account which shall be designated as the “2021-1 Series Account,” which account shall be held in the name of the Indenture Trustee for the benefit of the Series 2021-1 Holders, and which account constitutes a Series Account for the Series 2021-1 Notes for all purposes under the Master Indenture. All deposits of funds for the benefit of the Series 2021-1 Holders from the Collections Account and the Liquidity Reserve Account shall be accumulated in, and withdrawn from, the 2021-1 Series Account in accordance with the provisions of the Series 2021-1 Indenture. Notwithstanding anything to the contrary herein, amounts on deposit in the 2021-1 Series Account shall not be invested.
Section 3.02 Distributions from 2021-1 Series Account. On each Payment Date (to the extent sufficient cleared and immediately available funds are available in the 2021-1 Series Account), the Indenture Trustee, as specified in the related Payment Date Schedule with respect to the Flow of Funds, shall distribute funds then on deposit in the 2021-1 Series Account to the Series 2021-1 Holders in accordance with Section 3.11 of the Master Indenture.
Section 3.03 Liquidity Reserve Target Amount. On the Closing Date, the Liquidity Reserve Target Amount will be $0.
ARTICLE IV
CONDITIONS TO ISSUANCE
Section 4.01 Conditions to Issuance. The Indenture Trustee shall not authenticate the Series 2021-1 Notes unless (a) all conditions to the issuance of the Series 2021-1 Notes under the Note Purchase Agreement shall have been satisfied, and (b) the Issuer shall have delivered a certificate to the Indenture Trustee to the effect that all conditions set forth in the Note Purchase Agreement shall have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Master Indenture Representations and Warranties. To induce the Series 2021-1 Holders to purchase the Series 2021-1 Notes, the Issuer hereby makes to the Indenture Trustee for the benefit of the Series 2021-1 Holders, as of the Closing Date and as of the other dates specified for the applicable representations in the Master Indenture, all of the representations and warranties set forth in Section 5.01 of the Master Indenture.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Ratification of Master Indenture. As supplemented by this Series 2021-1 Supplement, the Master Indenture is in all respects ratified and confirmed and the Master Indenture as so supplemented by this Series 2021-1 Supplement shall be read, taken and construed as one and the same instrument. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Master Indenture, the terms and provisions of this Series 2021-1 Supplement shall govern.
Section 6.02 Counterparts. This Series 2021-1 Supplement may be executed in two or more counterparts, and by different parties on separate counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.
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Section 6.03 Governing Law. THIS SERIES 2021-1 SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6.04 Notices to the Rating Agency. Whenever any notice or other communication is required to be given to the Rating Agencies in respect of the Series 2021-1 Notes pursuant to the Master Indenture, a Series Supplement or this Series 2021-1 Supplement, such notice or communication shall be delivered to S&P, at 55 Water Street, New York, NY 10041, Attention: S&P Surveillance (Facsimile: (212) 438-0122) and to KBRA, at 805 Third Ave., 29th Floor, New York, NY 10022, Attention: ABS Surveillance.
Section 6.05 Notices to Liquidity Facility Provider. Whenever any notice or other communication is required to be given to the Liquidity Facility Provider in respect of the Series 2021-1 Notes pursuant to the Master Indenture, a Series Supplement or this Series 2021-1 Supplement, such notice or communication shall be delivered to Landesbank Hessen-Thüringen Girozentrale, at Neue Mainzer Strasse 52-58, 60311 Frankfurt Am. Main, Germany, Attn: Fabian Huppertz, Land Transport, Telephone: +49 69 91 32 76 02, with a copy to Landesbank Hessen-Thüringen Girozentrale, New York Branch, at 420 Fifth Avenue, New York, NY 10018, Attention: Land Transport Finance, Telephone: 212-703-5333, Facsimile: 212-703-5256, Email: Joe.Devoe@helabany.com; Alec.Tasooji@helabany.com.
Section 6.06 Amendments and Modifications. The terms of this Series 2021-1 Supplement may be waived, modified or amended only in a written instrument signed by each of the Issuer and the Indenture Trustee in accordance with Article IX of the Master Indenture. Amendments, waivers and modifications of this Series 2021-1 Supplement that constitute matters set forth in clauses (i) through (viii) of Section 9.02(a) of the Master Indenture, may be effected only with the prior written Direction of Holders of each Outstanding Series 2021-1 Note adversely affected thereby.
[Signature pages follow]

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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Series 2021-1 Supplement to be duly executed and delivered all as of the day and year first above written.
TRP 2021 LLC

By: TRP 2021 Railcar Holdings, LLC, its sole equity member and manager

By: RIV 2013 Rail Holdings LLC, its sole equity member and manager

By: Trinity Industries Leasing Company, its agent

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director


U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee

By: /s/ Chris McKim
Name: Chris McKim
Title: Vice President


Exhibit 10.3
$560,430,000
TRIP Rail Master Funding LLC
(in the process of changing its name to Triumph Rail LLC)
Green Secured Railcar Equipment Notes, Series 2021-2

Class Principal Amount of Offered Notes Interest Rate
Class A………………………. $535,038,000 2.15%
Class B………………………. $25,392,000 3.08%

NOTE PURCHASE AGREEMENT
May 25, 2021
Credit Suisse Securities (USA) LLC Eleven Madison Avenue
New York, NY 10010 		Wells Fargo Securities LLC
550 S. Tryon Street
Charlotte, NC 28202
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, NY 10019 		Deutsche Bank Securities Inc.
60 Wall Street, 5th Floor
New York, New York 10005
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
BofA Securities, Inc.
One Bryant Park, 11th Floor
New York, NY 10036

Fifth Third Securities, Inc. 38 Fountain Square Plaza Cincinnati, OH 45263
Dear Ladies and Gentlemen:
1. Introductory. TRIP Rail Master Funding LLC (in the process of changing its name to Triumph Rail LLC), a Delaware limited liability company (the “Issuer”), a wholly owned subsidiary of TRIP Rail Holdings LLC (“TRIP Holdings”) (who will contribute all of its membership interests in the Issuer to Triumph Rail Holdings LLC (“Triumph Holdings”) on June 15, 2021), a joint venture among Trinity Industries Leasing Company (“TILC”), a minority member of TRIP Holdings, and other members that are unaffiliated with TILC, proposes, subject to the terms and conditions stated herein, to issue and sell to Credit Suisse Securities (USA) LLC (“CS”), Wells Fargo Securities LLC (“Wells Fargo”), Credit Agricole Securities (USA) Inc. (“CA”), Deutsche Bank Securities Inc. (“DB”), Morgan Stanley & Co. LLC (“MS”), BofA Securities, Inc. (“BofA”) and Fifth Third Securities, Inc. (“Fifth Third”) (each, an “Initial Purchaser” and collectively, the “Initial Purchasers”) U.S. $535,038,000 principal amount of its Series 2021-2 Class A
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Green Secured Railcar Equipment Notes (the “Class A Notes”) and U.S. $25,392,000 principal amount of its Series 2021-2 Class B Green Secured Railcar Equipment Notes (the “Class B Notes” and, together with the Class A Notes, the “Offered Notes”) to be issued pursuant to the Master Indenture (the “Master Indenture”), as supplemented by the Series 2021-2 Supplement thereto (the “Series 2021-2 Supplemental Indenture” and, together with the Master Indenture, the “Indenture”), each to be dated on or about June 15, 2021, between the Issuer and U.S. Bank National Association, as indenture trustee (the “Trustee”). The United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder are herein referred to as the “Securities Act.” Capitalized terms used but not defined herein shall have the meanings given to such terms in the Offering Circular (as defined below).
2. Representations and Warranties of the Issuer, TILC, TRIP Holdings and Triumph Holdings. Each of the Issuer TILC, TRIP Holdings and Triumph Holdings, jointly and severally, represents and warrants to, and agrees with, the Initial Purchasers that, as of the date hereof (unless otherwise indicated below):
(a) The Issuer has prepared a preliminary offering circular dated May 19, 2021 (the “Preliminary Offering Circular”), the Issuer has prepared a supplement to the preliminary offering circular dated May 25, 2021 (the “Preliminary Offering Circular Supplement”) and the Issuer will prepare a final offering circular dated the date hereof (the “Offering Circular”), in each case relating to the Offered Notes to be offered by the Initial Purchasers. The Preliminary Offering Circular and the Offering Circular, together with any General Use Issuer Free Writing Communication (as hereinafter defined) and all amendments and supplements to such documents, are hereinafter collectively referred to as the “Offering Document”.
The Offering Document at a particular time means the Offering Document in the form actually amended or supplemented and issued at that time. “Final Offering Document” means the Offering Document that discloses the offering price and other final terms of the Offered Notes and is dated as of the date of this Note Purchase Agreement (this “Agreement”) (even if finalized and issued subsequent to the date of this Agreement). “General Disclosure Package” means the Preliminary Offering Circular, together with any General Use Issuer Free Writing Communications (as hereinafter defined) at the Applicable Time (as hereinafter defined) considered together with the offering price on the cover page of the Offering Circular and the information contained in Schedule D hereto. “Applicable Time” means 12:10 P.M. (New York time) on the date of this Agreement. As of its date and as of the Closing Date, the Final Offering Document will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. At the Applicable Time, neither (i) the Preliminary Offering Circular, (ii) the Preliminary Offering Circular Supplement, (iii) the General Disclosure Package, nor (iv) any individual Limited Use Issuer Free Writing Communication (as hereinafter defined), when considered together with the General Disclosure Package, contained, nor as of the Closing Date will contain, any untrue statement of a material fact or omitted, or will omit, to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding two sentences do not apply to statements in or
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omissions from the Offering Document, the General Disclosure Package or any Limited Use Issuer Free Writing Communication (as hereinafter defined) based upon written information furnished to the Issuer, TILC, TRIP Holdings or Triumph Holdings by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
“Free Writing Communication” means a written communication (as such term is defined in Rule 405 under the Securities Act) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Notes and is made by means other than the Preliminary Offering Circular or the Offering Circular. “Issuer Free Writing Communication” means a Free Writing Communication prepared by or on behalf of, or authorized for distribution to investors by, the Issuer, TILC, TRIP Holdings or Triumph Holdings or used or referred to by the Issuer, TILC, TRIP Holdings or Triumph Holdings, in the form retained in the records of the Issuer, TILC, TRIP Holdings or Triumph Holdings. “General Use Issuer Free Writing Communication” means any Issuer Free Writing Communication that is intended for general distribution to prospective investors and is set forth on Schedule B hereto. “Limited Use Issuer Free Writing Communication” means any Issuer Free Writing Communication that is not a General Use Issuer Free Writing Communication and is set forth on Schedule C hereto.
(b) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information (as hereinafter defined); and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(c) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(d) TRIP Holdings has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and TRIP Holdings is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(e) Triumph Holdings has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and Triumph Holdings is duly qualified to do business as a foreign limited liability company in good
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standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(f) As of the Closing Date, the Indenture and each other Transaction Document (as defined in Section 5(d)) will have been duly authorized, executed and delivered by the Issuer, TILC, TRIP Holdings or Triumph Holdings, as the case may be; the Offered Notes have been duly authorized by the Issuer, and when the Offered Notes are duly authenticated by the Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Offered Notes will have been duly executed, authenticated, issued and delivered by the Issuer and each of the Indenture, each other Transaction Document and the Offered Notes will conform to the description thereof contained in the Final Offering Document and each of the Indenture and the other Transaction Documents (assuming the valid execution and delivery thereof by the other parties thereto) and the Offered Notes will constitute valid and legally binding obligations of the Issuer, TILC, TRIP Holdings or Triumph Holdings, as the case may be, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(g) Except as contemplated by the Transaction Documents, no consent, approval, authorization, order of, filing with, or any other action by any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement or any Transaction Document in connection with the issuance of the Offered Notes and sale of the Offered Notes.
(h) The execution, delivery and performance of the Indenture, this Agreement and each other Transaction Document and the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof by the Issuer, TILC, TRIP Holdings or Triumph Holdings, as the case may be, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or conflict with, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Issuer, TILC, TRIP Holdings or Triumph Holdings or any of their respective properties, or (ii) any agreement or instrument to which the Issuer, TILC, TRIP Holdings or Triumph Holdings is a party or by which the Issuer, TILC, TRIP Holdings or Triumph Holdings is bound or to which any of the properties of the Issuer, TILC, TRIP Holdings or Triumph Holdings are subject, or (iii) the limited liability company agreement or certificate of formation of the Issuer, TRIP Holdings and Triumph Holdings or the certificate of incorporation or by‑laws of TILC. The Issuer has full power and authority to sell the Offered Notes as contemplated by this Agreement.
(i) This Agreement has been duly authorized, executed and delivered by each of the Issuer, TILC, TRIP Holdings and Triumph Holdings.
(j) Except as disclosed in the General Disclosure Package, the Issuer has good and marketable title to all real properties and all other properties and assets owned by it, free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by it; and except as disclosed in the General Disclosure Package, the Issuer holds any leased
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real or personal property held by it under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by it.
(k) Each of the Issuer, TILC, TRIP Holdings and Triumph Holdings possesses all material certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it and has not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Issuer, TILC, TRIP Holdings or Triumph Holdings, as applicable, would individually or in the aggregate have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Issuer, TILC, TRIP Holdings or Triumph Holdings, as applicable, taken as a whole (“Material Adverse Effect”).
(l) Except as disclosed in the General Disclosure Package, none of the Issuer, TILC, TRIP Holdings and Triumph Holdings is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “environmental laws”), nor owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off‑site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and none of the Issuer, TILC, TRIP Holdings or Triumph Holdings is aware of any pending investigation which might lead to such a claim.
(m) Except as disclosed in the General Disclosure Package, there are no pending actions, suits, proceedings or investigations against or affecting the Issuer, TILC, TRIP Holdings or Triumph Holdings or their respective properties that, if determined adversely to the Issuer, TILC, TRIP Holdings or Triumph Holdings, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer, TILC, TRIP Holdings or Triumph Holdings to perform its obligations under the Indenture, this Agreement, or any other Transaction Document to which it is a party, or would seek to materially and adversely affect the federal income tax attributes of the Offered Notes, or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits, proceedings or investigations are threatened or, to the Issuer’s, TILC’s, TRIP Holdings’ and Triumph Holdings’ knowledge, contemplated.
(n) Since December 31, 2020, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in each case, other than as disclosed in the Offering Document, in the condition (financial or other), business, properties or results of operations of TILC and TILC’s subsidiaries taken as a whole.
(o) The Issuer is not, and is not controlled by, an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”) and, after giving effect to the offering and sale of the Offered Notes and the application of proceeds thereof as described in the Offering Document, will not be, and will not be controlled by, an
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“investment company” registered or required to be registered under the Investment Company Act. The Issuer will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act, although there may be additional exemptions or exclusions available to the Issuer. The Issuer is not relying on the exemptions set forth in Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act. The Issuer does not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “Volcker Rule”.
(p) No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Offered Notes are listed on any national securities exchange registered under Section 6 of the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (“Exchange Act”) or quoted in a U.S. automated inter‑dealer quotation system. The securities are eligible for resale pursuant to Rule 144A under the Securities Act (“Rule 144A”). The General Disclosure Package contains, and the Offering Document will contain, all the information specified in and meeting the requirements of Rule 144A.
(q) No member of the “expanded group” (including any “controlled partnership” with respect thereto), if any, of which the Issuer is a member (or, in the event the Issuer is a disregarded entity for U.S. federal income tax purposes, of which the Issuer’s owner is a member or controlled partnership with respect thereto) has purchased, or is purchasing, any of the Offered Notes. For these purposes, “controlled partnership” and “expanded group” are defined in Treasury Regulation sections 1.385‑1(c)(1) and 1.385‑1(c)(4), respectively.
(r) Assuming the representations of the Initial Purchasers set forth in Section 4(a) and (b) are true and accurate, the offer, sale and delivery of the Offered Notes to the Initial Purchasers and to subsequent purchasers in the manner contemplated by this Agreement and the Offering Document will be exempt from the registration requirements of the Securities Act, and it is not necessary to qualify an indenture in respect of the Offered Notes under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(s) Neither the Issuer, TILC, TRIP Holdings or Triumph Holdings, or any of their respective affiliates, or any person acting on its or their behalf (other than the Initial Purchasers, as to whom no such representation is made) (i) has, within the six‑month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (“Regulation S”)) the Offered Notes or any security of the same class or series as the Offered Notes or (ii) has offered or will offer or sell the Offered Notes (A) in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S, by means of any directed selling efforts within the meaning of Rule 902(c) of Regulation S. The Issuer, TILC, TRIP Holdings, Triumph Holdings, and their respective affiliates and any person acting on its or their behalf (other than the Initial Purchasers, as to whom no such representation is made) have complied and will comply with the offering restrictions requirement of
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Regulation S. Neither the Issuer, TILC, TRIP Holdings or Triumph Holdings has entered and none will enter into any contractual arrangement with respect to the distribution of the Offered Notes except for this Agreement.
(t) The proceeds to the Issuer from the offering of the Offered Notes and the related transactions will not be used to purchase or carry any security (except as contemplated in Permitted Investments in respect of the Indenture Accounts).
(u) There is no “substantial U.S. market interest” as defined in Rule 902(j) of Regulation S in the Issuer’s debt securities.
(v) Except as contemplated in the applicable Engagement Letter (as defined below) and as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings between the Issuer, TILC, TRIP Holdings or Triumph Holdings and any person that would give rise to a valid claim against the Issuer, TILC, TRIP Holdings or Triumph Holdings, or any Initial Purchaser for a brokerage commission, finder’s fee or other like payment.
(w) On the Closing Date, the Issuer will own all of its right, title and interest in and to the Railcars, together with the related Leases thereon and certain other related assets specified therein, free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or other security interest (collectively, “Liens”), except to the extent permitted in the Indenture or any other Transaction Document, as applicable.
(x) As of the Closing Date, each of the representations and warranties of the Issuer, TILC, TRIP Holdings or Triumph Holdings set forth in each of the Transaction Documents to which they are parties will be true and correct in all material respects.
(y) Any taxes, fees and other governmental charges that would be incurred by reason of the execution and delivery of the Transaction Documents or the execution, delivery and sale of the Offered Notes and that would be due and payable as of the Closing Date have been or will be paid prior to the Closing Date.
(z) Each of the Issuer, TILC, TRIP Holdings, Triumph Holdings, and their respective subsidiaries and, to their knowledge, their respective directors, officers, agents, employees and affiliates, is in compliance, in all material respects, with (i) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto, and (ii) the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (the “USA Patriot Act of 2001”), as may be applicable to each of them. No part of the proceeds of the Offered Notes will be used by the Issuer, TILC, TRIP Holdings, Triumph Holdings, and their respective subsidiaries, directly or, to the knowledge of the Issuer, TILC, TRIP Holdings, Triumph Holdings, and their respective subsidiaries, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of (i) the U.S. Foreign Corrupt Practices Act of 1977, as
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amended, or, as applicable (ii) the U.K. Bribery Act of 2010, as amended, or (iii) any other anti‑bribery or anti‑corruption laws, regulations or ordinances in any jurisdiction in which the Issuer, TILC, TRIP Holdings or Triumph Holdings is located or doing business (collectively, the “Anti‑Corruption Laws”).
(aa) The operations of the Issuer, TILC, TRIP Holdings, Triumph Holdings and their respective subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”). The Issuer, TILC, TRIP Holdings, Triumph Holdings and their respective subsidiaries (i) have instituted, maintained and are complying with policies, procedures and controls reasonably designed to comply with all Anti‑Corruption Laws and Money Laundering Laws and are currently complying with, and will at all times comply with, all Anti‑Corruption Laws and Money Laundering Laws, and (ii) are not knowingly and have not been under administrative, civil or criminal investigation with respect to any Anti‑Corruption Laws or Money Laundering Laws or received written notice from or made a voluntary disclosure to any governmental entity regarding a possible violation by it of any Anti‑Corruption Laws or Money Laundering Laws. The Issuer, TILC, TRIP Holdings, Triumph Holdings and their respective subsidiaries will not fund any repayment of the Offered Notes in violation of any Anti‑Corruption Laws or Money Laundering Laws. No part of the proceeds of any Offered Notes will be used by the Issuer, TILC, TRIP Holdings, Triumph Holdings or any of their respective subsidiaries or affiliates directly or to their knowledge, indirectly, in violation of any Anti‑Corruption Laws or Money Laundering Laws.
(ab) None of the Issuer, TILC, TRIP Holdings or Triumph Holdings, any of their respective subsidiaries or, to their knowledge, any of their respective directors, officers, agents, employees or affiliates (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), as amended by Executive Order 13886 of September 9, 2019 Modernizing Sanctions to Combat Terrorism (84 Fed. Reg. 48041 (2019)) (the “Executive Order”), or (ii) engages in any dealings or transactions with blocked persons prohibited by Section 2 of such Executive Order.
(ac) None of the Issuer, TILC, TRIP Holdings or Triumph Holdings, any of their respective subsidiaries or, to their knowledge, any of their respective directors, officers, agents, employees or affiliates (x) is a person named on the list of “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) available at: https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists, or as otherwise published from time to time; (y) is (A) an agency of the government of a country, (B) an organization controlled by a country, or (C) a Person resident in a country that is subject to a sanctions program identified by OFAC and available at: https://home.treasury.gov/policy-issues/financial-
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sanctions/sanctions-programs-and-country-information, or as otherwise published from time to time, as such program may be applicable to such agency, organization or person; or (z) derives more than 10% of its assets or operating income from investments in or transactions with any such country, agency, organization or Person. None of the proceeds from the Offered Notes will be used by the Issuer, TILC, TRIP Holdings, Triumph Holdings, or any of their respective subsidiaries or, to their knowledge, any of their respective directors, officers, agents, employees or affiliates, to finance any operations, investments or activities in, or make any payments to, any such country, agency, organization, or Person in violation of Sanctions.
(ad) None of the Issuer, TILC, TRIP Holdings, Triumph Holdings, or any of their respective subsidiaries or, to their knowledge, any of their respective directors, officers, agents, employees and affiliates (i) is a Sanctioned Person (as hereinafter defined), (ii) is controlled by, or is acting on behalf of, a Sanctioned Person, (iii) is knowingly under investigation for an alleged breach of Sanction(s) by the government authority that enforces Sanctions (as hereinafter defined), (iv) will use the proceeds of any Offered Note for the purpose of providing financing to, or otherwise making funds directly or indirectly available to, any Sanctioned Person, or providing financing to or otherwise funding any transaction which would be prohibited by any applicable Sanction or, to the knowledge of the Issuer, TILC, TRIP Holdings or Triumph Holdings or any of their respective subsidiaries, would otherwise cause the Indenture Trustee, any Noteholder or any party to this Agreement or any entity affiliated with any such party, to be in violation of any applicable Sanction, (v) will fund any repayment of the Offered Notes with proceeds derived from any transaction that would be prohibited by applicable Sanctions or, to the knowledge of the Issuer, TILC, TRIP Holdings or Triumph Holdings or any of their respective subsidiaries, would otherwise cause the Indenture Trustee, any Noteholder or any party to this Agreement, to their knowledge, to be in violation of any applicable Sanction, and (vi) will fail to notify the Indenture Trustee and the Initial Purchasers in writing not more than five (5) Business Days after becoming aware of any breach of this clause (dd).
For purposes of this Agreement, a “Sanction” means any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by a Sanctions Authority.
“Sanctions Authority” means (a) the United States Government, (b) the United Nations Security Council, (c) the European Union, (d) the United Kingdom, (e) the Swiss Secretariat of Economic Affairs, (f) the governments, official institutions or agencies and other relevant sanctions authorities of any of the foregoing in clauses (a) through (e), including OFAC, the US Department of State, and Her Majesty’s Treasury or (g) any other governmental authority with jurisdiction over the Issuer, TILC, TRIP Holdings, Triumph Holdings, any of their affiliates or, to the knowledge of the Issuer, TILC, TRIP Holdings, Triumph Holdings, the Indenture Trustee or the Initial Purchasers.
“Sanctioned Person” means (a) any Person that is listed on, or owned or controlled by a Person listed on (or a Person acting on behalf of such a Person) (i) the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists or as
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otherwise published from time to time, the “Sectoral Sanctions Identifications” list maintained by OFAC available at https://home.treasury.gov/policy-issues/financial-sanctions/consolidated-sanctions-list/sectoral-sanctions-identifications-ssi-list or as otherwise published from time to time, or the “Foreign Sanctions Evaders” list maintained by OFAC available at https://home.treasury.gov/policy-issues/financial-sanctions/consolidated-sanctions-list/foreign-sanctions-evaders-fse-list or as otherwise published from time to time, (ii) the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by Her Majesty’s Treasury or (iii) any similar list maintained by, or public announcement of a Sanctions designation made by, a Sanctions Authority having jurisdiction over the Issuer, TILC, TRIP Holdings or Triumph Holdings, each as amended, supplemented or substituted from time to time; or (b) (i) an agency of the government of a Sanctioned Jurisdiction, (ii) an organization directly or indirectly controlled by a Sanctioned Jurisdiction or (iii) a Person resident in (or organized under the laws of) a Sanctioned Jurisdiction (to the extent subject to a Sanctions program administered by OFAC, the European Union or the United Nations), or (iv) a Person who is owned or controlled by, or acting on behalf of such a Person.
“Sanctioned Jurisdiction” means any country or territory to the extent that the government of such country or territory is the subject of Sanctions consisting of a general embargo imposed by any Sanctions Authority.
(ae) The operations of the Issuer, TILC, TRIP Holdings and Triumph Holdings and their respective subsidiaries are and have been conducted at all times in material compliance with the USA Patriot Act of 2001, as amended, and the rules and regulations thereunder.
(af) In connection with any rating for the Offered Notes, the Issuer has provided to each rating agency rating the Offered Notes a written representation that satisfies the requirement of paragraph (a)(3)(iii) of Rule 17g‑5 under the Exchange Act (“Rule 17g‑5”). The Issuer has complied, and as of the Closing Date, the Issuer will comply, in all material respects with the representations, certifications and covenants made by the Issuer to S&P and KBRA (the “Hired NRSROs”) in connection with the engagement of the Hired NRSROs to issue and monitor a credit rating on the Offered Notes, including any representation provided to the Hired NRSROs by the Issuer in connection with Rule 17g‑5, and has made accessible, via a password‑protected internet website established and maintained by TILC, to any non‑hired nationally recognized statistical rating organization, as contemplated by Rule 17g‑5, all information provided to the Hired NRSROs in connection with the issuance and monitoring of the credit ratings on the Offered Notes in accordance with Rule 17g‑5. The Issuer shall be solely responsible for compliance with Rule 17g‑5 in connection with the issuance, monitoring and maintenance of the credit rating on the Offered Notes. The Initial Purchasers are not responsible for compliance with any aspect of Rule 17g‑5 in connection with the Offered Notes.
(ag) TILC engaged independent accountants for the purpose of delivering the Independent Accountants’ Report on Applying Agreed-Upon Procedures, dated on or before June 15, 2021 (such independent accountants, the “Accountants”, and such report, the “Report”), and the only report generated as a result of such engagement is the Report. None of the Issuer, TILC, TRIP Holdings or Triumph
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Holdings has engaged any third-party due diligence services providers to provide any services that would be “due diligence services” (as defined in Rule 17g-10(d)(1) under the Exchange Act) were the Offered Notes subject to such Rule.
(ah) [Reserved].
(ai) The requirements imposed on the “sponsor of a securitization transaction” in accordance with the final rules contained in Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”) implementing the credit risk retention requirements of Section 15G of the Exchange Act, do not apply to TILC, as sponsor (the “Sponsor”) or the transaction the subject of the Offered Notes.
3. Purchase, Sale and Delivery of Offered Notes. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Issuer agrees to sell to the Initial Purchasers, severally and not jointly, and each Initial Purchaser agrees severally and not jointly to purchase from the Issuer, at a purchase price of 99.20900% of the principal amount of the Class A Notes and 99.20042% of the principal amount of the Class B Notes, the principal amount of Offered Notes set forth opposite the name of such Initial Purchaser in Schedule A hereto.
(b) The Issuer will deliver against payment of the purchase price the Offered Notes to be offered and sold by the Initial Purchasers in reliance on Regulation S (the “Regulation S Notes”), each in the form of one or more permanent global notes in registered form without interest coupons (the “Regulation S Global Notes”) which will be deposited with the Trustee as custodian for Cede & Co., as nominee of The Depository Trust Company (“DTC”) for the respective accounts of the DTC participants for Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream, Luxembourg”) and registered in the name of Cede & Co., as nominee for DTC. The Issuer will deliver against payment of the purchase price the Offered Notes to be purchased by the Initial Purchasers hereunder and to be offered and sold by the Initial Purchasers in reliance on Rule 144A under the Securities Act (the “144A Notes”), each in the form of one permanent global note in definitive form without interest coupons (the “Restricted Global Note”) deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as nominee for DTC. The Regulation S Global Notes and the Restricted Global Note shall be assigned separate CUSIP numbers. The Global Notes shall include the legend regarding restrictions on transfer set forth under “Transfer Restrictions” in the Final Offering Document. Until the termination of the distribution compliance period (as defined in Regulation S) with respect to the offering of the Offered Notes, interests in the Regulation S Global Notes may only be held by the DTC participants for Euroclear and Clearstream, Luxembourg. Interests in any permanent Global Notes will be held only in book‑entry form through Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the limited circumstances described in the Final Offering Document.
Payment for the Regulation S Notes and the 144A Notes shall be made by each Initial Purchaser in Federal (same day) funds by or wire transfer to an account at a bank acceptable to it, on June 15, 2021, or at such other time not later than seven full business days thereafter as the Initial Purchasers and the Issuer determine, such time being herein referred to as the “Closing Date”, against delivery to the Trustee as
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custodian for DTC of (i) the Regulation S Global Notes representing all of the Regulation S Notes for the respective accounts of the DTC participants for Euroclear and Clearstream, Luxembourg and (ii) the Restricted Global Note representing all of the 144A Notes. The Regulation S Global Notes and the Restricted Global Note will be made available for checking at the office of Vedder Price P.C., 1633 Broadway, New York, New York 10019, at least 24 hours prior to the Closing Date.
(c) The Issuer agrees to pay each Initial Purchaser for its own account all fees and expenses as provided in the applicable engagement letter, fee letter or other written correspondence, dated or communicated on or about the date hereof, among the Issuer, TILC, TRIP Holdings, Triumph Holdings and the applicable Initial Purchaser (each, an “Engagement Letter”).
4. Representations by Initial Purchasers; Resale by Initial Purchasers. (a) Each Initial Purchaser severally represents and warrants to the Issuer that it is an “accredited investor” within the meaning of Regulation D under the Securities Act.
(b) Each Initial Purchaser severally acknowledges that the Offered Notes have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S or pursuant to an exemption from the registration requirements of the Securities Act. Each Initial Purchaser severally represents and agrees that it has offered and sold the Offered Notes, and will offer and sell the Offered Notes (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly, none of the Initial Purchasers nor its affiliates, nor any persons acting on its behalf or their behalf, has engaged or will engage in any directed selling efforts with respect to the Offered Notes, and such Initial Purchaser, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirement of Regulation S. Each Initial Purchaser severally agrees that, at or prior to confirmation of sale of the Offered Notes, other than a sale pursuant to Rule 144A, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases the Offered Notes from it during the restricted period a confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meanings given to them by Regulation S.”
Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Initial Purchaser severally agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement (other than
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any agreement among the Initial Purchasers) with respect to the distribution of the Offered Notes except with the prior written consent of the Issuer.
(d) Each Initial Purchaser severally agrees that it and each of its affiliates will not offer or sell the Offered Notes in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act, including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Initial Purchaser severally agrees, with respect to resales made in reliance on Rule 144A of any of the Offered Notes, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered Notes has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
(e) Each Initial Purchaser severally agrees that it and each of its affiliates will not communicate or cause to be communicated the Offering Document in Canada or to any resident of Canada and understands that any Canadian residents may not, directly or indirectly, purchase the Offered Notes or any beneficial interest therein from such Initial Purchaser.
(f) Each Initial Purchaser severally represents and agrees that (i) with respect to any oral communications regarding Rating Information with the Hired NRSROs which are initiated by the Hired NRSROs or arranged by such Initial Purchaser in connection with the issuance or monitoring of a credit rating on the Offered Notes, such Initial Purchaser (A) has referred and will refer such oral communication to the Issuer to respond to the Hired NRSROs or (B) has invited and will invite the Issuer to participate in such oral communication and (ii) any communication (other than oral communications) regarding Rating Information or delivery of Rating Information to the Hired NRSROs has been and will immediately be disclosed to the Issuer for the purpose of allowing the Issuer to make accessible to any non‑hired nationally recognized statistical rating organization all Rating Information provided to the Hired NRSROs in connection with the issuance and monitoring of the credit rating on the Offered Notes in accordance with Rule 17g‑5. “Rating Information” means any information provided to the Hired NRSROs for the purpose of (A) determining the initial credit rating for the Offered Notes, including information about the characteristics of the Railcars, related property and the legal structure of the Offered Notes, and (B) undertaking credit rating surveillance on the Offered Notes, including information about the characteristics and performance of the Railcars and related property.
(g) Each Initial Purchaser severally represents and agrees that (i) they have not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any Offered Notes to any UK Retail Investor in the UK; (ii) they have only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA received by them in connection with the issue or sale of any Offered Notes in circumstances in which section 21(1) of the FSMA does not apply to the Issuer and (iii) it has complied and will comply
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with all applicable provisions of the FSMA with respect to anything done by it in relation to the Offered Notes in, from or otherwise involving the United Kingdom. For the purposes of this Section 4(g): (a) the expression “UK Retail Investor” means a person who is one (or more) of the following: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law of the UK by virtue of the EUWA; (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of UK domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in the UK Prospectus Regulation; and (b) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Offered Notes.
(h) Each Initial Purchaser severally represents and agrees that that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Offered Notes to any EU Retail Investor in the European Economic Area. For the purposes of this provision: (a) the expression “EU Retail Investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of MiFID II; (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in the EU Prospectus Regulation; and (b) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Offered Notes.
5. Certain Agreements of the Issuer, TILC, TRIP Holdings and Triumph Holdings. The Issuer, TILC TRIP Holdings and Triumph Holdings jointly and severally agree with the Initial Purchasers that:
(a) The Issuer will advise the Initial Purchasers promptly of any proposal to amend or supplement the Offering Document and will not effect any such amendment or supplementation without the consent of the Initial Purchasers. If, at any time following delivery of any document included in the Offering Document or any Limited Use Issuer Free Writing Communication and prior to the completion of the resale of the Offered Notes by the Initial Purchasers, there occurs an event or development as a result of which such document included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time not misleading, or if it is necessary at any such time to amend or supplement the Offering Document or any Limited Use Issuer Free Writing Communication to comply with any applicable law, the Issuer will promptly notify the Initial Purchasers of such event and will promptly prepare, at its own expense, an amendment or supplement which will correct such statement or omission. Neither the Initial Purchasers’ consent to, nor the delivery by the Initial Purchasers to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7. The first sentence of this subsection does not apply to
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statements in or omissions from any document in the General Disclosure Package or any Limited Use Issuer Free Writing Communication in reliance upon and in conformity with written information furnished to the Issuer, TILC, TRIP Holdings or Triumph Holdings by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(b) The Issuer will furnish to each Initial Purchaser copies of each document comprising a part of the Offering Document and each Limited Use Issuer Free Writing Communication, in each case as soon as available and in such quantities as such Initial Purchaser requests, and the Issuer will furnish to each Initial Purchaser on the date hereof three (3) copies of each document comprising a part of the Offering Document and each Limited Use Issuer Free Writing Communication signed by a duly authorized officer of the Issuer, one of which will include the independent accountants’ reports in the Offering Document manually signed by such independent accountants. At any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, the Issuer will promptly furnish or cause to be furnished to the Initial Purchasers and, upon request of holders and prospective purchasers of the Offered Notes, to such holders and purchasers, copies of the information (the “Additional Issuer Information”) required to be delivered to holders and prospective purchasers of the Offered Notes in accordance with Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Notes. TILC will pay the expenses of printing and distributing to the Initial Purchasers all such documents. Any Additional Issuer Information delivered to any holders and prospective purchasers of the Offered Notes will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) The Issuer will arrange for the qualification of the Offered Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as the Initial Purchasers designate and will continue such qualifications in effect so long as required for the resale of the Offered Notes by the Initial Purchasers, provided that the Issuer will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction.
(d) So long as the Offered Notes are outstanding, if not filed electronically with the Securities and Exchange Commission (the “Commission”) or posted on the website of TILC, the Issuer will furnish to the Initial Purchasers (i) as soon as available, copies of each report furnished to the Issuer or any of its affiliates, in the case of the Issuer, pursuant to any Operative Agreement (collectively, the “Transaction Documents”), by first class mail as soon as practicable after such reports are furnished to the Issuer or any of its affiliates or shareholders, as the case may be, (ii) copies of each amendment to any of the Transaction Documents, (iii) copies of all reports and other communications (financial or other) furnished to the Trustee under the Indenture or to holders of the Offered Notes, and copies of any reports and financial statements, if any, furnished to or filed with the Commission, any governmental or regulatory authority or any national securities exchange, and (iv) from time to time such other information as the Initial Purchasers may reasonably request relating to the Issuer, TILC, TRIP Holdings or Triumph Holdings, or any of their respective affiliates, the Offered Notes and
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the Transaction Documents. TILC, TRIP Holdings, Triumph Holdings and the Issuer shall make their officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers.
(e) During the period of three (3) years after the Closing Date, the Issuer will, upon request, furnish to the Initial Purchasers and any holder of Offered Notes a copy of the restrictions on transfer applicable to the Offered Notes.
(f) During the period of two (2) years after the Closing Date none of the Issuer, TILC, TRIP Holdings and Triumph Holdings will, or will permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Notes that have been reacquired by any of them.
(g) The Issuer, TILC, TRIP Holdings or Triumph Holdings will pay all expenses incidental to the performance of their respective obligations under this Agreement, including but not limited to: (i) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Notes, the preparation and printing of this Agreement, the Offered Notes, the documents comprising any part of the Offering Document, each Limited Use Issuer Free Writing Communication and any other document relating to the issuance, offer, sale and delivery of the Offered Notes; (ii) the cost of any advertising approved by the Issuer, TILC, TRIP Holdings or Triumph Holdings in connection with the issue of the Offered Notes; (iii) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Notes for sale under the laws of such jurisdictions in the United States as the Initial Purchasers designate and the printing of memoranda relating thereto; (iv) any fees charged by the Hired NRSROs for the rating of the Offered Notes and charged by the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture; and (v) expenses incurred in distributing the documents comprising any part of the Offering Document (including any amendments and supplements thereto) and any Limited Use Issuer Free Writing Communications to the Initial Purchasers or to prospective purchasers of the Offered Notes. The Issuer, TILC, TRIP Holdings and Triumph Holdings jointly and severally will also pay or reimburse the Initial Purchasers (to the extent incurred by them) for all travel expenses of the Initial Purchasers’, the Issuer’s, TILC’s, TRIP Holdings’, Triumph Holdings’ officers and employees and any other expenses of the Initial Purchasers, the Issuer, TILC, TRIP Holdings or Triumph Holdings in connection with attending or hosting meetings with prospective purchasers of the Offered Notes from the Initial Purchasers. In addition to the foregoing, but without duplication, the Issuer, TILC, TRIP Holdings or Triumph Holdings will pay to each Initial Purchaser on the Closing Date the amounts in respect of its costs and expenses as set forth in the applicable Engagement Letter as reimbursement of such Initial Purchaser’s other expenses, including fees and disbursements of legal counsel retained by the Initial Purchasers consistent with prior approvals of TILC.
(h) In connection with the offering and the sale of the Offered Notes, until the Initial Purchasers shall have notified the Issuer, TILC and the other Initial Purchasers of the completion of the resale of the Offered Notes, none of the Issuer, TILC, TRIP Holdings, Triumph Holdings or any of their respective affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in
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which it or any of its affiliates has a beneficial interest any Offered Notes or attempt to induce any person to purchase any Offered Notes; and none of the Issuer, TILC, TRIP Holdings, Triumph Holdings or any of their respective affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Notes.
(i) For a period of 90 days, with respect to the Issuer, and 45 days, with respect to Triumph Holdings, after the date of the Offering Circular, neither the Issuer nor Triumph Holdings will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any United States dollar‑denominated asset‑backed debt securities issued, sponsored or guaranteed by the Issuer, Triumph Holdings or any of their respective affiliates and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Initial Purchasers. Neither the Issuer nor Triumph Holdings will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Notes.
(j) The Issuer, TILC, TRIP Holdings and Triumph Holdings or any of their respective affiliates, or any person acting on its or their behalf (other than the Initial Purchasers, as to which no agreement is being made pursuant to this clause (j)), shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security that would be integrated with the offer or sale of the Offered Notes in a manner that would require the registration under the Securities Act of the sale of the Offered Notes or that would be integrated with the offer or sale of the Offered Notes for purposes of the rules and regulations of any trading market.
(k) The Issuer, TILC, TRIP Holdings and Triumph Holdings (the “Indemnitors”) jointly and severally will indemnify and hold harmless the Initial Purchasers against any documentary, stamp or similar issuance tax, including any interest and penalties, on the creation and issuance of the Offered Notes, and on the sale of the Offered Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer, TILC, TRIP Holdings or Triumph Holdings under this Agreement shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Issuer, TILC, TRIP Holdings or Triumph Holdings is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer, TILC, TRIP Holdings or Triumph Holdings, as applicable, shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made; provided that the Indemnitors will not be required to indemnify or gross‑up for such taxes and withholdings to the extent imposed as a result of a failure of such Initial Purchaser to provide any duly executed and completed form or document described in the last sentence of this paragraph upon the execution of this Agreement or to be delivered thereafter upon the reasonable request of its Indemnitors which evidences such Initial Purchaser’s entitlement to a complete exemption for such taxes and
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withholdings. Furthermore, the Indemnitors hereby request that each Initial Purchaser hereby provides to them IRS Form W‑9 or IRS Form W‑8BEN, W‑8BEN‑E, W‑8IMY or W‑8ECI, whichever is applicable, to the extent not already provided.
(l) To the extent, if any, that the rating provided with respect to the Offered Notes by the Hired NRSROs is conditional upon the furnishing of documents or the taking of any other action on or prior to the Closing Date by the Issuer, TILC, TRIP Holdings or Triumph Holdings, the Issuer, TILC, TRIP Holdings or Triumph Holdings, as the case may be, shall use its reasonable best efforts to promptly furnish such documents and take any other such action on or prior to the Closing Date.
(m) The cash proceeds of the Offered Notes, together with the proceeds of issuance of the Class E Certificates and the amount of any necessary capital contribution made by Triumph Holdings to the Issuer, will be used by the Issuer as follows: (i) to add funds to the Collections Account in connection with the issuance of the Securities, if necessary to assure sufficient funds are available for payments on the first Payment Date; (ii) to pay certain costs of issuance; and (iii) to optionally redeem in full the Existing Notes issued by it by effecting a repayment of the outstanding principal amount thereof, together with any accrued and unpaid interest due thereon.
(n) The Issuer will comply with the representation made by the Issuer to each Hired NRSRO pursuant to paragraph (a)(3)(iii) of Rule 17g‑5.
6. Free Writing Communications. (a) Each of the Issuer, TILC, TRIP Holdings and Triumph Holdings, jointly and severally, represents and agrees that, without the prior consent of the Initial Purchasers, and each Initial Purchaser severally represents and agrees that, without the prior consent of TILC and the Initial Purchasers, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Communication. Any such Issuer Free Writing Communication consented to by TILC and the Initial Purchasers is hereinafter referred to as a “Permitted Free Writing Communication.” The parties hereto agree that the Issuer Free Writing Communications listed on Schedules B and C hereto are each Permitted Free Writing Communications.
(b) To the extent it would be an Issuer Free Writing Communication, each of the Issuer, TILC, TRIP Holdings and Triumph Holdings consents to the use by the Initial Purchaser of a Free Writing Communication that (a) contains only information describing the preliminary or final terms of the Offered Notes or the offering thereof, and (b) does not contain any material information about the Issuer, TILC, TRIP Holdings or Triumph Holdings or the securities of any of them that was provided by any of the Issuer and TILC or on behalf of any of them. Any such Free Writing Communication is a Permitted Free Writing Communication for purposes of this Agreement.
7. Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer, TILC, TRIP Holdings and Triumph Holdings, to the accuracy of the statements of officers of the Issuer, TILC, TRIP Holdings and Triumph Holdings made pursuant to the provisions hereof, to the performance by each of the Issuer, TILC, TRIP Holdings and Triumph
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Holdings of its obligations hereunder and to the following additional conditions precedent on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received from a third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer, TILC, TRIP Holdings or Triumph Holdings and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC, TRIP Holdings or Triumph Holdings by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC, TRIP Holdings or Triumph Holdings (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer, TILC, TRIP Holdings or Triumph Holdings has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions (including, but not limited to, as the result of the outbreak or increase in severity of any pandemic) or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer, TILC, TRIP Holdings or Triumph Holdings or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) Vedder Price P.C., counsel for the Issuer, (ii) the Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
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i. The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information;
ii. TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
iii. TRIP Holdings has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TRIP Holdings is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
iv. Triumph Holdings has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; Triumph Holdings is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
v. The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer, TILC, TRIP Holdings or Triumph Holdings, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer, TILC, TRIP Holdings or Triumph Holdings, as applicable, enforceable against the Issuer, TILC, TRIP Holdings or Triumph Holdings, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
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vi. The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
vii. The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “Volcker Rule”;
viii. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance of the Offered Notes or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
ix. There are no pending actions, suits or proceedings against or affecting the Issuer, TILC, TRIP Holdings, Triumph Holdings or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC, TRIP Holdings, Triumph Holdings or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer, TILC, TRIP Holdings or Triumph Holdings to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
x. The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer, TILC, TRIP Holdings or Triumph Holdings is a party, and this Agreement and the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, TRIP Holdings, Triumph Holdings, or any of their properties, or any agreement or instrument to which the Issuer, TILC, TRIP Holdings or Triumph Holdings is a party or by which the Issuer, TILC, TRIP Holdings or Triumph Holdings is bound or to which any of the properties of the Issuer, TILC, TRIP Holdings or Triumph Holdings is subject, or the organizational or formation
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documents of the Issuer, TILC, TRIP Holdings or Triumph Holdings, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
xi. Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
xii. This Agreement has been duly authorized, executed and delivered by each of the Issuer, TILC, TRIP Holdings and Triumph Holdings;
xiii. It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
xiv. The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “Triumph Holdings and TRIP Holdings”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of the Hedge Agreements”, “Description of the Liquidity Facility” and “Description of the Offered Notes and the Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized;
xv. The statements contained in the Preliminary Offering Circular and the Offering Circular under the captions “Certain Considerations for ERISA and Other Benefit Plans” and “Certain United States Federal Income Tax Considerations”, to the extent that they constitute matters of federal law or legal conclusions with respect thereto, while not purporting to discuss all possible consequences of investment in the Offered Notes, are correct in all material respects with respect to those consequences or matters that are discussed therein; and
xvi. In a properly presented and decided case, in the event Triumph Holdings or TRIP Holdings became a debtor in a voluntary or involuntary bankruptcy case under the Bankruptcy Code, the bankruptcy court would not
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substantially consolidate the assets and liabilities of the Issuer with those of Triumph Holdings or TRIP Holdings.
(d) The Initial Purchasers shall have received from Mayer Brown LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the Final Offering Document and the General Disclosure Package, the exemption from registration for the offer and sale of the Offered Notes to the Initial Purchasers and the resales by the Initial Purchasers as contemplated hereby and other related matters as the Initial Purchasers may require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Initial Purchasers shall have received the opinion or opinions of Chapman and Cutler LLP, special counsel to the Trustee, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(f) The Initial Purchasers shall have received the opinion of Alvord and Alvord PLLC, special STB counsel, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received the opinion of Fasken LLP, special Canadian counsel, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(h) The Initial Purchasers shall have received a copy of each opinion provided to the Hired NRSROs in connection with its rating of the Offered Notes, each of which shall state therein that the Initial Purchasers may rely thereon, in form and substance reasonably satisfactory to the Initial Purchasers.
(i) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President or a principal financial or accounting officer of each of the Issuer, TILC, TRIP Holdings and Triumph Holdings (it being understood that a certificate of TILC, as agent of TRIP Holdings, certifying for itself and in its capacity as sole equity member and manager of the Issuer and Triumph Holdings shall be sufficient for purposes of the compliance by the Issuer, TRIP Holdings and Triumph Holdings with this requirement) in which such officer, to the best of such officer’s knowledge, after reasonable investigation, shall state that (i) the representations and warranties of the Issuer, TILC, TRIP Holdings and Triumph Holdings, as the case may be, in this Agreement are true and correct, that each of the Issuer, TILC, TRIP Holdings and Triumph Holdings has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements of each of the Issuer, TILC, TRIP Holdings and Triumph Holdings, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of each of the Issuer, TILC, TRIP Holdings and Triumph Holdings and its subsidiaries taken as a whole except as described in such certificate, (ii) nothing has come to such officer’s attention that would lead such officer to conclude that the General Disclosure Package included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the
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statements therein, under the circumstances in which they were made, not misleading and (iii) since the date of the Offering Circular there shall not have been any change in the capital stock of TILC, TRIP Holdings or Triumph Holdings or the membership interests of the Issuer, or the long term debt of the Issuer, TILC, TRIP Holdings or Triumph Holdings except as described in such certificate.
(j) On or before the Closing Date, this Agreement, the Offering Document and each Transaction Document shall be satisfactory in form and substance to the Initial Purchasers, shall have been duly executed and delivered by the parties thereto (except that the execution and delivery of the documents referred to above (other than this Agreement) by a party hereto or thereto shall not be a condition precedent to such party’s obligations hereunder), shall each be in full force and effect and executed counterparts of each shall have been delivered to the Initial Purchasers or its counsel on or before the Closing Date.
(k) Each of TILC, TRIP Holdings, Triumph Holdings and the Issuer shall have delivered to the Initial Purchasers a certificate (it being understood that a certificate of Triumph Holdings in its capacity as sole equity member and manager of the Issuer shall be sufficient for purposes of the Issuer’s compliance with this requirement), dated the Closing Date, of its secretary or other duly elected, qualified and acting officer certifying its certificate of incorporation, limited liability company agreement, bylaws or other organizational documents; board or similar resolutions authorizing the execution, delivery and performance of the Transaction Documents to which it is a party, as applicable; and the incumbency of all officers that signed any of the Transaction Documents.
(l) The Initial Purchasers shall have received a certificate from a nationally recognized insurance broker with respect to the public liability insurance required by Section 5.04(f) of the Indenture.
(m) Any Transaction Documents which are required to be executed on or prior to the Closing Date that have not been executed by the date of this Agreement will be subject to a condition precedent that requires such agreements to be in form and substance satisfactory to the Initial Purchasers.
(n) (i) The Hired NRSROs shall have delivered to the Issuer, TILC, TRIP Holdings, Triumph Holdings and the Initial Purchasers a final rating letter setting forth a rating with respect to the Class A Notes of at least “A (sf)” and the Class B Notes of at least “BBB (sf)” and (ii) subsequent to the execution and delivery of this Agreement the Hired NRSROs shall not have announced in writing (which shall include, without limitation, any press release by such organization) that it has under surveillance or review its rating of any of the Offered Notes (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating).
(o) On or prior to the Closing Date, DTC shall have approved as to form the “Regulation S Temporary Global Note” and the “144A Book‑Entry Note” as those terms are defined in the Indenture.
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(p) On or before the Closing Date the Issuer shall have caused the Indenture (or memorandum thereof) delivered at the Closing Date, to be duly filed, recorded and deposited with the Surface Transportation Board of the United States of America in conformity with 49 U.S.C. §11301 and with the Registrar General of Canada pursuant to Section 90 of the Railway Act of Canada, and the Issuer shall furnish the Initial Purchasers with proof thereof.
Documents described as being “in the agreed form” are documents which are in the form reasonably satisfactory to the Initial Purchasers and Mayer Brown LLP.
The Issuer, TILC, TRIP Holdings and Triumph Holdings will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers reasonably request.
8. Indemnification and Contribution. (a) The Issuer, TILC, TRIP Holdings and Triumph Holdings will jointly and severally indemnify and hold harmless (i) each Initial Purchaser and (ii) its respective officers, partners, members, directors, agents, employees and affiliates and each person, if any, who controls such Initial Purchaser, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (the “Initial Purchaser Representatives”), against any losses, claims, damages, liabilities or expenses, joint or several, to which such Initial Purchaser or the Initial Purchaser Representatives may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) relate to, arise out of or are based upon (1) any breach of any of the representations, warranties and covenants of the Issuer, TILC, TRIP Holdings or Triumph Holdings contained herein, (2) any untrue statement or alleged untrue statement of any material fact contained in any document comprising a part of the Offering Document, any Limited Use Issuer Free Writing Communication or any amendment or supplement thereto, or any Additional Issuer Information or (3) any omission or alleged omission to state, in any document comprising a part of the Offering Documents, any Limited Use Issuer Free Writing Communication, or any amendment of or supplement thereto, or any Additional Issuer Information, a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, including, without limitation, any losses, claims, damages, liabilities or expenses arising out of or based upon the Issuer’s, TILC’s, TRIP Holdings’ or Triumph Holdings’ failure to perform its obligations under Section 5 of this Agreement, and will reimburse each Initial Purchaser and the Initial Purchaser Representatives for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action as such expenses are incurred; provided, however, that neither the Issuer, TILC, TRIP Holdings nor Triumph Holdings will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Issuer, TILC, TRIP Holdings or Triumph Holdings by such Initial Purchaser specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) below.
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(b) Each Initial Purchaser severally and not jointly will indemnify and hold harmless (i) the Issuer, TILC, TRIP Holdings and Triumph Holdings and (ii) their respective directors and officers and each person, if any, who controls the Issuer, TILC, TRIP Holdings or Triumph Holdings within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (the “Seller Representatives”), against any losses, claims, damages, liabilities or expenses to which the Issuer, TILC, TRIP Holdings, Triumph Holdings or the Seller Representatives may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any document comprising a part of the Offering Document, any Limited Use Issuer Free Writing Communication or any amendment or supplement thereto, or any related preliminary offering circular, or arise out of or are based upon the omission or the alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Issuer, TILC, TRIP Holdings or Triumph Holdings by the Initial Purchasers specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Issuer, TILC, TRIP Holdings, Triumph Holdings or the Seller Representatives in connection with investigating or defending any such loss, claim, damage, liability, expense or action as such expenses are incurred, it being understood and agreed that the only such information furnished by the Initial Purchasers consists of the information in the Offering Document as highlighted in the excerpt from the Offering Document set forth on Schedule E hereto; provided, however, that the Initial Purchasers shall not be liable for any losses, claims, damages, liabilities or expenses arising out of or based upon the Issuer’s, TILC’s, TRIP Holdings’ or Triumph Holdings’ failure to perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that differing interests may arise between the positions of the indemnifying
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party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties, and the indemnifying party will reimburse any legal expenses incurred by the indemnified party having separate counsel, as incurred. And after any such notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence, (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party or parties, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party. It is understood that all such fees and expenses of counsel for the indemnified party for which the indemnifying party is liable shall be reimbursed as they are incurred. Notwithstanding the foregoing, the indemnifying party shall have no right to retain counsel or otherwise participate in or assume the defense or settlement of any such action brought by a governmental agency, regulatory authority or self-regulatory organization having or claiming to have jurisdiction over the business or financial affairs of the relevant indemnified party or any of its affiliates. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which will not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which such indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes (i) an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer, TILC, TRIP Holdings and Triumph Holdings on the one hand and the Initial Purchasers on the other from the offering of the Offered Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Issuer, TILC,
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TRIP Holdings and Triumph Holdings on the one hand and the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations. The relative benefits received by the Issuer, TILC, TRIP Holdings and Triumph Holdings on the one hand and the Initial Purchasers on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Issuer bear to the total discounts, commissions and fees received by the Initial Purchasers from the Issuer under this Agreement. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer, TILC, TRIP Holdings, Triumph Holdings or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Initial Purchaser shall be required to contribute any amount in excess of the total discounts, commissions and fees received by such Initial Purchaser from the Issuer and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Initial Purchaser Representative and each director, officer, agent, employee and affiliate of an Initial Purchaser shall have the same rights to contribution as such Initial Purchaser, and each Seller Representative shall have the same rights to contribution as the Issuer, TILC, TRIP Holdings and Triumph Holdings, subject in each case to the applicable terms and conditions of this paragraph (d). The obligations of the Initial Purchasers in this subsection (d) to contribute are several in proportion to their respective purchase obligations and not joint.
(e) The obligations of the Issuer, TILC, TRIP Holdings and Triumph Holdings under this Section shall be in addition to any liability which the Issuer, TILC, TRIP Holdings and Triumph Holdings may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Initial Purchaser within the meaning of the Securities Act or the Exchange Act; and the obligations of each Initial Purchaser under this Section shall be in addition to any liability which it may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Issuer, TILC, TRIP Holdings and Triumph Holdings within the meaning of the Securities Act or the Exchange Act.
9. Default of Initial Purchasers, Special Resolution Regime.
(a) If any one or more Initial Purchasers shall fail to purchase and pay for the Offered Notes agreed to be purchased by such Initial Purchasers (the “Defaulting Initial Purchasers”) hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the non‑Defaulting Initial Purchasers (the “Non‑Defaulting Initial Purchasers”) may make arrangements satisfactory to the Issuer for the purchase of the Offered Notes by
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other persons, including any of the Non‑Defaulting Initial Purchasers, but if no such arrangements are made by the Closing Date, the Non‑Defaulting Initial Purchasers shall be obligated severally and not jointly to take up and pay for (in the respective proportions that the amount of Offered Notes set forth opposite their names in Schedule A bears to the aggregate amount of Offered Notes set forth opposite the names of all the Non‑Defaulting Initial Purchasers) the Offered Notes which the Defaulting Initial Purchasers agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Offered Notes which the Defaulting Initial Purchasers agreed but failed to purchase shall exceed 10% of the aggregate amount of the Offered Notes set forth in Schedule A, the Non‑Defaulting Initial Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Offered Notes. If the Non‑Defaulting Initial Purchasers do not purchase all the Offered Notes, this Agreement will terminate without liability on the part of any Non‑Defaulting Initial Purchaser, the Issuer, TILC, TRIP Holdings or Triumph Holdings, except as provided in Section 10. As used in this Agreement, the term “Initial Purchaser” includes any person substituted for an Initial Purchaser under this Section. Nothing herein will relieve any Defaulting Initial Purchaser from liability for its default.
(b) In the event that any Initial Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Initial Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. In the event that any Initial Purchaser that is a Covered Entity or a BHC Act Affiliate of such Initial Purchaser becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Initial Purchaser are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 9(b):
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
29

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Issuer, TILC, TRIP Holdings or Triumph Holdings or their respective officers and of the Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Initial Purchasers, the Issuer, TILC, TRIP Holdings or Triumph Holdings, or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Notes. If this Agreement is terminated pursuant to Section 9 or if for any reason the purchase of the Offered Notes by the Initial Purchasers is not consummated, the Issuer, Triumph Holdings, TRIP Holdings and TILC shall remain responsible for the expenses to be paid or reimbursed by them pursuant to Section 5 and the respective obligations of the Issuer, Triumph Holdings, TRIP Holdings, TILC and the Initial Purchasers pursuant to Section 8 shall remain in effect. Further, if the purchase of the Offered Notes by the Initial Purchasers is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9, the Issuer or Triumph Holdings will reimburse each Initial Purchaser for all out‑of‑pocket expenses (including fees and disbursements of counsel) reasonably incurred by it in connection with the offering of the Offered Notes.
11. Notices. All communications hereunder will be in writing and, if sent to the Initial Purchasers will be mailed, delivered or telegraphed and confirmed to each of the Initial Purchasers at its respective address below:
Credit Suisse Securities (USA) LLC Eleven Madison Avenue
New York, NY 10010 		Wells Fargo Securities LLC
550 S. Tryon Street
Charlotte, NC 28202
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, NY 10019 		Deutsche Bank Securities Inc.
60 Wall Street, 5th Floor
New York, New York 10005
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
BofA Securities, Inc.
One Bryant Park, 11th Floor
New York, NY 10036

Fifth Third Securities, Inc.
38 Fountain Square Plaza
Cincinnati, Ohio 45263
30

If sent to the Issuer, TILC, TRIP Holdings or Triumph Holdings, as the case may be, will be mailed, delivered or emailed and confirmed to such party at the following address:
c/o Trinity Industries Leasing Company
14221 N. Dallas Parkway, Suite 1100
Dallas, TX 75254
Attention: TILC Capital Markets Group
Re: Triumph Rail LLC
Email: TILC.CapitalMarkets.notices@trin.net
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder, except that holders of Offered Notes shall be entitled to enforce the agreements for their benefit contained in the second and third sentences of Section 5(b) hereof against the Issuer as if such holders were parties thereto.
13. Counterparts. This Agreement may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same Agreement and any party may enter into this Agreement by executing a counterpart. Delivery by facsimile or other electronic transmission of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart hereof.
14. Absence of Fiduciary Relationship. Each of the Issuer, TILC, TRIP Holdings and Triumph Holdings acknowledges and agrees that:
(a) Each Initial Purchaser has been retained solely to act as an initial purchaser in connection with the initial purchase, offering and resale of the Offered Notes, and no Initial Purchaser shall be liable to the Issuer, TILC, TRIP Holdings or Triumph Holdings for any losses, claims, damages or other liabilities with respect to any other Notes or Certificates (as defined in the Master Indenture), and that no fiduciary, advisory or agency relationship between any of the Issuer, TILC, TRIP Holdings or Triumph Holdings or their respective affiliates, stockholders, creditors or employees, on the one hand, and such Initial Purchaser, on the other hand, has been created in respect of any of the transactions contemplated by this Agreement or the Offering Document, irrespective of whether such Initial Purchaser has advised or is advising the Issuer, TILC, TRIP Holdings or Triumph Holdings on other matters;
(b) the purchase and sale of the Offered Notes pursuant to this Agreement, including the determination of the offering price of the Offered Notes and any related discount and commissions, is an arm’s‑length commercial transaction among the Initial Purchasers, the Issuer, TILC, TRIP Holdings and Triumph Holdings, and the Issuer, TILC, TRIP Holdings and Triumph Holdings are capable of evaluating and understanding, and do understand and hereby accept, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Issuer, TILC, TRIP Holdings and Triumph Holdings have been advised that the Initial Purchasers and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Issuer, TILC, TRIP
31

Holdings and Triumph Holdings and the Initial Purchasers have no obligation to disclose such interests and transactions to any of the Issuer, TILC, TRIP Holdings or Triumph Holdings by virtue of any fiduciary, advisory or agency relationship; and
(d) each of the Issuer, TILC, TRIP Holdings or Triumph Holdings waives, to the fullest extent permitted by law, any claims it may have against any Initial Purchaser for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that no Initial Purchaser shall have any liability (whether direct or indirect) to any of the Issuer, TILC, TRIP Holdings or Triumph Holdings in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of any of the Issuer, TILC, TRIP Holdings or Triumph Holdings, including stockholders, employees or creditors of the Issuer, TILC, TRIP Holdings or Triumph Holdings.
15. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the state of New York without regard to principles of conflicts of laws (other than Section 5‑1401 of the New York General Obligations Law).
Each of the Issuer, TILC, TRIP Holdings and Triumph Holdings hereby submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States of America for the Southern District of New York, in each case sitting in the Borough of Manhattan in The City of New York and appellate courts from any thereof in any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, THE OFFERED NOTES OR ANY OF THE OTHER OPERATIVE AGREEMENTS, WHICH WAIVER IS INFORMED AND VOLUNTARY.
16. No Petition in Bankruptcy. Each Initial Purchaser agrees that, prior to the date which is one year and one day after the payment in full of all outstanding Offered Notes, such Initial Purchaser will not institute against, or join any other Person in instituting against, the Issuer an action in bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceeding under the laws of the United States or any state of the United States.
17. Integration. As to the matters set forth in this Agreement, so long as this Agreement is in full force and effect, the provisions herein shall supersede any and all prior agreements as to such subject matter, except any Engagement Letter and any other fee arrangement entered into between any Initial Purchaser, the Issuer, TILC, TRIP Holdings and Triumph Holdings.
18. Amendments. This Agreement may not be amended, waived, discharged or terminated unless such amendment, waiver, discharge or termination is in writing and signed by each of the parties hereto.
19. Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or
32

unenforceable provision or by its severance from this Agreement, unless such continued effectiveness of this Agreement, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.
20. USA Patriot Act. Each of the Issuer, TILC, TRIP Holdings and Triumph Holdings acknowledges that the Initial Purchasers are required by U.S. Federal law, in an effort to help fight the funding of terrorism and money laundering activities, to obtain, verify and record information that identifies each person or corporation who opens an account or enters into a business relationship with a financial institution.
21. Titles. CS is hereby designated as Sole Structuring Agent, CS and Wells Fargo are hereby designated as Lead Bookrunners, DB, CA and MS are hereby designated as Joint Bookrunners, CA is hereby designated as Green Advisor, and BofA and Fifth Third are hereby designated as Co‑Managers.

[Signature pages follow]




33

If the foregoing is in accordance with the Initial Purchasers’ understanding of our agreement, kindly sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement between the Issuer, TILC, TRIP Holdings, Triumph Holdings and the Initial Purchaser in accordance with its terms.


Very truly yours,

TRIP RAIL MASTER FUNDING LLC,

By: TRIP RAIL HOLDINGS LLC, as sole equity member and manager

By: TRINITY INDUSTRIES LEASING COMPANY, as its agent

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director


TRINITY INDUSTRIES LEASING COMPANY



By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director

TRIP RAIL HOLDINGS LLC

By: TRINITY INDUSTRIES LEASING COMPANY, as its agent



By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director

TRIUMPH RAIL HOLDINGS LLC

By: TRIP RAIL HOLDINGS LLC, as sole equity member and manager

By: TRINITY INDUSTRIES LEASING COMPANY, as its agent



By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director




The foregoing Agreement is hereby confirmed and accepted as of the date first above written.


CREDIT SUISSE SECURITIES (USA) LLC



By: /s/ Shailesh S. Dishpande
Name: Shailesh S. Dishpande
Title: MD






Wells Fargo Securities LLC



By: /s/ John Fulvimar
Name: John Fulvimar
Title: Director






CREDIT AGRICOLE SECURITIES (USA) INC.



By: /s/ Michael Regan
Name: Michael Regan
Title: Managing Director







Deutsche Bank Securities Inc.



By: /s/ Kevin Fagan
Name: Kevin Fagan
Title: Director

By: /s/ Daniel Gerber
Name: Daniel Gerber
Title: Managing Director







Morgan Stanley & Co. LLC



By: /s/ Yezdan Badrakhan
Name: Yezdan Badrakhan
Title: Executive Director







BofA Securities, Inc.



By: /s/ Bradley Sohl
Name: Bradley Sohl
Title: Director








FIFTH THIRD SECURITIES, INC.



By: /s/ Ricardo Valeriano
Name: Ricardo Valeriano
Title: Managing Director


Exhibit 10.3.1
EXECUTION VERSION
MASTER INDENTURE
dated as of June 15, 2021



by and between



TRIUMPH RAIL LLC,
a Delaware limited liability company,
as the Issuer,


and



U.S. BANK NATIONAL ASSOCIATION,
a national banking association,
as Indenture Trustee


TABLE OF CONTENTS
Page
GRANTING CLAUSES................................................................................................................ 1

ARTICLE 1 DEFINITIONS.................................................................................................. 8
Section 1.01        Definitions..................................................................................... 8
Section 1.02        Rules of Construction...........................…..................................... 8
Section 1.03        Compliance Certificates and Opinions.......................................... 9
Section 1.04        Acts of Holders............................................................................ 10

ARTICLE 2 THE SECURITIES.......................................................................................... 11
Section 2.01    Authorization, Issuance and Authentication of the Securities; Amount of Outstanding Principal Balance; Terms; Form; Execution and Delivery................................................................................. 11
Section 2.02        Restrictive Legends..................................................................... 15
Section 2.03        Securities Registrar and Paying Agents...................................... 20
Section 2.04        Paying Agent to Hold Money in Trust.......................................... 22
Section 2.05        Method of Payment..................................................................... 22
Section 2.06        Minimum Denomination.............................................................. 23
Section 2.07        Exchange Option for Notes......................................................... 23
Section 2.08        Mutilated, Destroyed, Lost or Stolen Securities.......................... 25
Section 2.09        Payments of Transfer Taxes........................................................ 25
Section 2.10        Book-Entry Registration............................................................…25
Section 2.11        Special Transfer Provisions......................................................... 27
Section 2.12        Temporary Definitive Securities................................................... 31
Section 2.13        Statements to Holders................................................................. 31
Section 2.14        CUSIP, CINS and ISIN Numbers................................................. 32
Section 2.15        Tax Treatment of the Securities................................................... 33
Section 2.16        Compliance with Withholding Requirements............................... 33
Section 2.17        Limitation on Transfers................................................................ 33
Section 2.18        Holder Tax Identification Information........................................... 35
Section 2.19        Later Sold Notes.......................................................................... 36

ARTICLE 3 INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS................................ 37
Section 3.01        Establishment of Indenture Accounts; Investments..................... 37
Section 3.02        Collections Account..................................................................... 40
Section 3.03        Withdrawal upon an Event of Default.......................................... 41
Section 3.04        Liquidity Reserve Account; Liquidity Facilities............................. 41
Section 3.05        Optional Reinvestment Account.................................................. 43
Section 3.06        Expense Account......................................................................... 43
Section 3.07        Series Accounts........................................................................... 44
Section 3.08        Redemption/Defeasance Account............................................... 44
Section 3.09        [Reserved.].................................................................................. 45
Section 3.10        Calculations................................................................................. 45
Section 3.11        Payment Date Distributions from the Collections Account.......... 48
Section 3.12        Optional Redemptions................................................................. 59
Section 3.13        Procedure for Redemptions......................................................... 60
Section 3.14        Adjustments in Targeted Principal Balances............................… 62
Section 3.15        Liquidity Facilities........................................................................ 63
Section 3.16        Hedge Agreements...................................................................... 64
i

TABLE OF CONTENTS
(continued)
Page
Section 3.17        Capital Contributions to Indenture Accounts and/or Portfolio...... 66

ARTICLE 4 DEFAULT AND REMEDIES........................................................................... 66
Section 4.01        Events of Default......................................................................... 66
Section 4.02        Remedies Upon Event of Default................................................ 69
Section 4.03        Limitation on Suits....................................................................... 72
Section 4.04        Waiver of Existing Defaults.......................................................... 72
Section 4.05        Restoration of Rights and Remedies........................................... 73
Section 4.06        Remedies Cumulative..............................................................… 73
Section 4.07        Authority of Courts Not Required................................................. 73
Section 4.08        Rights of Holders to Receive Payment........................................ 74
Section 4.09        Indenture Trustee May File Proofs of Claim................................ 74
Section 4.10        Undertaking for Costs.................................................................. 74
Section 4.11        Purchase Right of Class B Holders............................................. 74
Section 4.12        Purchase Right of Class C Holders............................................. 75
Section 4.13        Purchase Rights of the Holder of the Class E Certificates.......... 76

ARTICLE 5 REPRESENTATIONS, WARRANTIES AND COVENANTS........................... 77
Section 5.01        Representations and Warranties................................................. 77
Section 5.02        General Covenants...................................................................... 82
Section 5.03        Portfolio Covenants..................................................................... 89
Section 5.04        Operating Covenants................................................................... 93

ARTICLE 6 THE INDENTURE TRUSTEE....................................................................... 102
Section 6.01        Acceptance of Trusts and Duties............................................... 102
Section 6.02        Absence of Duties..................................................................... 102
Section 6.03        Representations or Warranties.................................................. 102
Section 6.04        Reliance; Agents; Advice of Counsel......................................... 103
Section 6.05        Not Acting in Individual Capacity................................................ 106
Section 6.06        No Compensation from Holders................................................ 106
Section 6.07    Notice of Defaults; Communications During Continuance of Event of Default................................................................................... 106
Section 6.08        Indenture Trustee May Hold Securities..................................... 106
Section 6.09        Corporate Trustee Required; Eligibility...................................... 106
Section 6.10        Reports by the Issuer................................................................. 107
Section 6.11        Compensation........................................................................… 107
Section 6.12        Certain Rights of the Requisite Majority..................................... 107
Section 6.13        Lessee Contact.......................................................................... 107

ARTICLE 7 SUCCESSOR TRUSTEES........................................................................... 108
Section 7.01        Resignation and Removal of Indenture Trustee........................ 108
Section 7.02        Appointment of Successor......................................................... 108

ARTICLE 8 INDEMNITY.................................................................................................. 109
Section 8.01        Indemnity................................................................................... 109
Section 8.02        Holders’ Indemnity..................................................................... 110
Section 8.03        Survival...................................................................................... 110

ii

TABLE OF CONTENTS
(continued)
Page
ARTICLE 9 SUPPLEMENTAL INDENTURES................................................................. 110
Section 9.01        Supplemental Indentures Without the Consent of the Holders.. 110
Section 9.02        Supplemental Indentures with the Consent of Holders.............. 111
Section 9.03        Execution of Indenture Supplements and Series Supplements. 113
Section 9.04        Effect of Indenture Supplements................................................ 113
Section 9.05        Reference in Securities to Supplements.................................... 113
Section 9.06        Issuance of Additional Series of Notes...................................... 113

ARTICLE 10 MODIFICATION AND WAIVER.................................................................... 115
Section 10.01        Modification and Waiver with Consent of Holders..................... 115
Section 10.02        Modification Without Consent of Holders................................... 116
Section 10.03    Consent of Servicer, Hedge Providers and Liquidity Facility Providers.................................................................................... 116
Section 10.04        Subordination and Priority of Payments..................................... 116
Section 10.05        Execution of Amendments by Indenture Trustee....................... 116

ARTICLE 11 SUBORDINATION......................................................................................... 117
Section 11.01        Subordination............................................................................. 117

ARTICLE 12 DISCHARGE OF INDENTURE; DEFEASANCE.......................................... 118
Section 12.01        Discharge of Liability on the Securities; Defeasance................. 118
Section 12.02        Conditions to Defeasance.......................................................... 119
Section 12.03        Application of Trust Money......................................................... 120
Section 12.04        Repayment to the Issuer............................................................ 120
Section 12.05    Indemnity for Government Obligations and Corporate Obligations ............................................................................… 121
Section 12.06        Reinstatement........................................................................... 121

ARTICLE 13 MISCELLANEOUS....................................................................................... 121
Section 13.01        Right of Indenture Trustee to Perform....................................... 121
Section 13.02        Waiver........................................................................................ 121
Section 13.03        Severability................................................................................ 122
Section 13.04        Notices....................................................................................... 122
Section 13.05        Assignments.............................................................................. 123
Section 13.06        Currency Conversion................................................................. 123
Section 13.07        Application to Court................................................................... 124
Section 13.08        Governing Law........................................................................... 124
Section 13.09        Jurisdiction................................................................................. 124
Section 13.10        Jury Trial.................................................................................... 125
Section 13.11        Counterparts; Electronic Signatures.......................................... 125
Section 13.12        No Petition in Bankruptcy........................................................... 126
Section 13.13        Table of Contents, Headings, Etc.............................................. 126



iii




Annex
Description
Annex A Defined Terms
Schedule Description
Schedule 1 Account Information
Exhibit Description
Exhibit A-1 Form of Certificate to be Given by Holders
Exhibit A-2 Form of Certificate to be Given by Euroclear or Clearstream
Exhibit A-3 Form of Certificate to Depository Regarding Interest
Exhibit A-4 Form of Depositary Certificate Regarding Interest
Exhibit A-5 Form of Transfer Certificate for Exchange or Transfer from 144A Book-Entry Note to Regulation S Book-Entry Note
Exhibit A-6 Form of Initial Purchaser Exchange Instructions
Exhibit A-7 Form of Certificate to be Given by Transferee of Beneficial Interest in a Regulation S Book-Entry Note
Exhibit A-8 Form of Transfer Certificate for Exchange or Transfer from Unrestricted Book-Entry Note to 144A Book-Entry Note
Exhibit B Form of Investment Letter to be Delivered in Connection with Transfers to Non-QIB Accredited Investors
Exhibit C-1 Form of Monthly Report
Exhibit C-2 Form of Annual Report
Exhibit D-1 Form of Full Service Freight Railcar Lease
Exhibit D-2 Form of Full Service Tank Railcar Lease
Exhibit E-1 Form of Net Freight Railcar Lease
Exhibit E-2 Form of Net Tank Railcar Lease

iv


This MASTER INDENTURE, dated as of June 15, 2021 (as modified, amended or supplemented from time to time by Indenture Supplements, this “Master Indenture”) is between TRIUMPH RAIL LLC (formerly known as TRIP Rail Master Funding LLC), a Delaware limited liability company, as the issuer of the Notes hereunder (the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as indenture trustee for the Notes hereunder (the “Indenture Trustee”).
W I T N E S S E T H:
WHEREAS, the Issuer and the Indenture Trustee are executing and delivering this Master Indenture in order to provide for the issuance from time to time by the Issuer of Securities, including Notes and Class E Certificates, in one or more Series, the Principal Terms of which shall be specified in one or more Series Supplements to this Master Indenture; and
WHEREAS, except as otherwise provided herein, the obligations of the Issuer under the Securities issued pursuant to this Master Indenture and the other Secured Obligations shall be secured on a pari passu basis by the Collateral further granted and described below;
NOW THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
GRANTING CLAUSES
The Issuer hereby pledges, transfers, assigns, and otherwise conveys to the Indenture Trustee for the benefit and security of the Secured Parties, and grants to the Indenture Trustee for the benefit and security of the Secured Parties a security interest in and Encumbrance on, all of the Issuer’s right, title and interest, whether now existing or hereafter created or acquired and wherever located, in, to and under the assets and property described below (collectively, the “Collateral”):
(a)    each Issuer Document and the Certificate Purchase Agreement, in each case, as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”);
(b)    (i) all Railcars described on a schedule to a Series Supplement, together with all other Railcars conveyed to the Issuer from time to time, whether pursuant to an Asset Transfer Agreement or otherwise, and any and all substitutions and replacements therefor, (ii) all licenses, manufacturer’s warranties and other warranties, Supporting Obligations (including in respect of any related Lease), Payment Intangibles, Accounts, Instruments, Chattel Paper (including the Leases described on a schedule to a Series Supplement and any other related Leases of the Railcars and all related Lease Payments), General Intangibles and all other rights and obligations related to any such aforementioned Assigned Agreement, Railcars or Leases, including, without limitation, all rights, powers, privileges, options and other benefits of the Issuer to receive moneys and other property due and to become due under or pursuant to such Assigned Agreements, such Railcars or Leases, including, without limitation, all rights, powers, privileges, options and other benefits to receive and collect rental payments, income, revenues, profits and other amounts, payments, tenders or security (including any cash collateral) from any other party thereto (including, in the case of related Leases, from the


Lessees thereunder), (iii) all rights, powers, privileges, options and other benefits of the Issuer to receive proceeds of any casualty insurance, condemnation award, indemnity, warranty or guaranty with respect to such Assigned Agreements, Railcars or Leases, (iv) all claims of the Issuer for damages arising out of or for breach of or default under any Assigned Agreement or in respect of any related Lease, and (v) the rights, powers, privileges, options and other benefits of the Issuer to perform under each Assigned Agreement and related Lease, to compel performance and otherwise exercise all remedies thereunder and to terminate each Assigned Agreement and related Lease;
(c)    all (i) Railroad Mileage Credits allocable to such Railcars and any payments in respect of such credits, (ii) tort claims or any other claims of any kind or nature related to such Railcars and any payments in respect of such claims, (iii) SUBI Certificates evidencing a 100% special unit of beneficial interest in the Trinity Marks related to such Railcars and (iv) other payments owing by any Person (including any railroads or similar entities) in respect of or attributable to such Railcars or the use, loss, damage, casualty, condemnation of such Railcars or the Marks associated therewith, in each case whether arising by contract, operation of law, course of dealing, industry practice or otherwise;
(d)    all Indenture Accounts (other than Series Accounts and the Certificate Account) and any other deposit accounts and securities accounts established in connection with any Liquidity Facility Documents, and all the funds standing to the credit thereof, all Investment Property credited thereto (including, without limitation, all (i) securities, whether certificated or uncertificated, (ii) Security Entitlements, (iii) Securities Accounts, (iv) commodity contracts and (v) commodity accounts) in which the Issuer has now, or acquires from time to time hereafter, any right, title or interest in any manner, and the certificates or instruments, if any, representing or evidencing such Investment Property, and all dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Investment Property with respect thereto, including, without limitation, any Permitted Investments purchased with funds on deposit in any Indenture Accounts or in any other deposit accounts and securities accounts established in connection with any Liquidity Facility Documents, and all income from the investment of funds therein;
(e)    all insurance policies maintained by the Issuer or for its benefit (including, without limitation, all insurance policies maintained by the Servicer or the Insurance Manager for the benefit of the Issuer) covering all or any portion of the Collateral, and all payments thereon or with respect thereto;
(f)    all other Accounts, Chattel Paper, commercial tort claims (as defined in the UCC), documents (as defined in the UCC), equipment (as defined in the UCC), General Intangibles, Instruments, inventory (as defined in the UCC), letter-of-credit rights (as defined in the UCC), and Supporting Obligations; and
(g)    all Proceeds, accessions, profits, products, income benefits, substitutions and replacements, whether voluntary or involuntary, of and to any of the property of the Issuer described in the preceding clauses (including, without limitation, the Issuer’s claims for indemnity thereunder and payments with respect thereto).
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Such Security Interests are granted and subject to the terms and conditions of this Master Indenture as collateral security for the payment and performance in full by the Issuer of all Outstanding Obligations and for the prompt payment in full by the Issuer of the respective amounts due and the prompt performance in full by the Issuer of all of its other obligations, in each case, under this Master Indenture, the other Issuer Documents (except for any Liquidity Facility Documents that are identified in a Series Supplement as being excluded from the Secured Obligations) and the other Operative Agreements to which the Issuer is a party (collectively, the “Secured Obligations”), all as provided in this Master Indenture.
For the avoidance of doubt it is expressly understood and agreed that, to the extent the UCC is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties hereto desire that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision.
The Indenture Trustee acknowledges such Security Interests, accepts the duties created hereby in accordance with the provisions hereof and agrees to hold and administer all Collateral for the use and benefit of all present and future Secured Parties.
The Issuer hereby irrevocably authorizes the Indenture Trustee at any time, and from time to time, to file, without the signature of the Issuer, in any filing office in any UCC jurisdiction necessary or desirable to perfect the Security Interests granted herein, any initial financing statements, continuation statements and amendments thereto that (i) indicate or describe the Collateral regardless of whether any particular asset constituting Collateral falls within the scope of Article 9 of the UCC in the same manner as described herein or in any other manner as is necessary or desirable to ensure the perfection of the Security Interests granted herein, or (ii) provide any other information required by Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement, continuation statement or amendment, including whether the Issuer is an organization, the type of organization and any organization identification number issued to the Issuer. The Issuer agrees to furnish the information described in clause (ii) of the preceding sentence to the Indenture Trustee promptly upon the Indenture Trustee’s request. Nothing in the foregoing shall be deemed to create an obligation of the Indenture Trustee to file any financing statement, continuation statements or amendment thereto.
1.    Priority. The Issuer intends the Security Interests in favor of the Indenture Trustee to be prior to all other Encumbrances (other than Permitted Encumbrances) in respect of the Collateral, and the Issuer has taken and shall take or cause to be taken all actions necessary to obtain and maintain, in favor of the Indenture Trustee, for the benefit of the Secured Parties, a first priority, perfected security interest in the Collateral, to the extent that perfection can be achieved by the filing of a UCC-1 financing statement in any UCC jurisdiction and/or other similar filings with the STB, subject to Permitted Encumbrances. With respect to Leases related to Portfolio Railcars where the Lessee thereunder is a Canadian resident, the Issuer has taken and shall take or cause to be taken all actions necessary or advisable to obtain and maintain, in favor of the Indenture Trustee, a first priority, perfected security interest in the related Railcars including, without limitation, making all such filings, registrations and recordings with the Registrar General of Canada as are necessary or advisable to obtain and
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maintain a first priority, perfected security interest in such Railcars (subject to Permitted Encumbrances). Notwithstanding the foregoing, the Issuer shall not be required to make any filings, registrations or recordation in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada. The Indenture Trustee shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party under all applicable law in addition to, and not in limitation of, the other rights, remedies and recourses granted to the Indenture Trustee by this Master Indenture or any law relating to the creation and perfection of security interests in the Collateral.
2.    Continuance of Security.
(a)    Except as otherwise provided under “Releases” in subsection 4(e) below, the Security Interests created under this Master Indenture shall remain in force as continuing security to the Indenture Trustee, for the benefit of the Secured Parties, until the repayment and performance in full of all Secured Obligations, notwithstanding any intermediate payment or satisfaction of any part of the Secured Obligations or any settlement of account or any other act, event or matter whatsoever, and shall secure Secured Obligations, including, without limitation, the ultimate balance of the moneys and liabilities hereby secured.
(b)    No assurance, security or payment which may be avoided or adjusted under the law, including under any enactment relating to bankruptcy or insolvency, and no release, settlement or discharge given or made by the Indenture Trustee on the faith of any such assurance, security or payment, shall prejudice or affect the right of the Indenture Trustee to recover the Secured Obligations from the Issuer (including any moneys which it may be compelled to pay or refund under the provisions of any applicable insolvency legislation of any applicable jurisdiction and any costs payable by it pursuant to or otherwise incurred in connection therewith) or to enforce the Security Interests granted under this Master Indenture to the full extent of the Secured Obligations and accordingly, if any release, settlement or discharge is or has been given hereunder and there is subsequently any such avoidance or adjustment under the law, it is expressly acknowledged and agreed that such release, settlement or discharge shall be void and of no effect whatsoever.
(c)    If a Responsible Officer of the Indenture Trustee shall have received written notice from a Secured Party or the Issuer or Administrator that the Issuer may be insolvent pursuant to the provisions of any applicable insolvency legislation in any relevant jurisdiction as at the date of any payment made by the Issuer to the Indenture Trustee (provided that the Indenture Trustee shall have no duty to inquire or investigate and shall not be deemed to have knowledge of same absent written notice received by a Responsible Officer of the Indenture Trustee), the Indenture Trustee shall retain the Security Interests contained in or created pursuant to this Master Indenture until the expiration of a period of one month plus such statutory period within which any assurance, security, guarantee or payment can be avoided or invalidated after the payment and discharge in full of all Secured Obligations notwithstanding any release, settlement, discharge or arrangement which may be given or made by the Indenture Trustee on, or as a consequence of, such payment or discharge of liability.
3.    No Transfer of Duties. The Security Interests granted hereby are granted as security only and shall not (i) transfer or in any way affect or modify, or relieve the Issuer from, any obligation to perform or satisfy any term, covenant, condition or agreement to be
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performed or satisfied by the Issuer under or in connection with this Master Indenture or any Issuer Document or any Collateral or (ii) impose any obligation on any of the Secured Parties or the Indenture Trustee to perform or observe any such term, covenant, condition or agreement or impose any liability on any of the Secured Parties or the Indenture Trustee for any act or omission on the part of the Issuer relative thereto or for any breach of any representation or warranty on the part of the Issuer contained therein or made in connection therewith unless otherwise expressly provided therein.
4.    Collateral.
(a)    Generally. On each Closing Date, all Instruments, Chattel Paper, UCC Securities or other documents, including, without limitation, any SUBI Certificates, representing or evidencing Collateral (to the extent not held by the Servicer pursuant to the terms of the Servicing Agreement) shall be delivered to and held by or on behalf of the Indenture Trustee on behalf of the Secured Parties pursuant hereto all in form and substance reasonably necessary to protect the pledge of such Collateral. Subject to subsection (b) under this heading, until the termination of the Security Interest granted hereby, if the Issuer shall acquire (by purchase, contribution, substitution, replacement or otherwise) any additional Collateral evidenced by Instruments or Chattel Paper at any time or from time to time after the date hereof, the Issuer shall promptly pledge the Collateral so evidenced as security for the Secured Obligations with the Indenture Trustee and deliver same to the custodial possession of the Servicer in accordance with Section 5.04(v), and the Servicer shall accept under this Master Indenture such delivery.
(b)    Safekeeping. The Indenture Trustee agrees to maintain the Collateral received by it and all records and documents relating thereto at such address or addresses as may from time to time be specified by the Indenture Trustee in writing to each Secured Party and the Issuer. The Indenture Trustee shall keep all Collateral and related documentation in its possession separate and apart from all other property that it is holding in its possession and from its own general assets and shall maintain accurate records pertaining to the Permitted Investments and Indenture Accounts included in the Collateral in such a manner as shall enable the Indenture Trustee, the Secured Parties and the Issuer to verify the accuracy of such record keeping. The Indenture Trustee’s books and records shall at all times show that to the extent that any Collateral is held by the Indenture Trustee such Collateral shall be held as agent of and custodian for the Secured Parties and is not the property of the Indenture Trustee. The Indenture Trustee will promptly report to each Secured Party and the Issuer any failure on its part to hold the Collateral as provided in this subsection and will promptly take appropriate action to remedy any such failure.
(c)    Limitation on Non-Severable Mixed Riders. The percentage of Portfolio Railcars in the aggregate (measured by Adjusted Value) contained on Non-Severable Mixed Riders shall not exceed twenty percent (20%) of the Portfolio Railcars in the aggregate (measured by Adjusted Value).
(d)    Notifications. The Indenture Trustee at the expense of the Issuer shall promptly forward to the Issuer and the Servicer a copy of each notice, request, report, or other document relating to any Issuer Document included in the Collateral that is received by a
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Responsible Officer of the Indenture Trustee from any Person other than the Issuer or the Servicer on and after the Closing Date.
(e)    Releases. If at any time all or any part of the Collateral is to be sold, transferred, assigned or otherwise disposed of by the Issuer or the Indenture Trustee or any Person on its or their behalf (but in any such case only as required or permitted by the Operative Agreements), the Indenture Trustee agrees, upon receipt of written notice from the Issuer or the Administrator, which notice shall be delivered at least five (5) Business Days prior to such sale, transfer, assignment or disposal, on or prior to the date of such sale, transfer, assignment or disposal (but not to be effective until the date of such sale, transfer, assignment or disposal) (or, in the case of a Lessee’s exercise of a purchase option, on, immediately prior to or after the date of such purchase, as may be requested by the Issuer or the Administrator), at the expense of the Issuer, to execute such instruments of release prepared by the Issuer or the Administrator, in recordable form, if necessary, in favor of the Issuer or any other Person as the Issuer or the Administrator may reasonably request, deliver the relevant part of the Collateral in its possession to the Issuer, otherwise release the Security Interest evidenced by this Master Indenture on such Collateral and release and deliver such Collateral to the Issuer and issue confirmation, to the relevant purchaser, transferee, assignee, insurer, and such other Persons as the Issuer may direct in writing, upon being requested to do so by the Issuer, that the relevant Collateral is no longer subject to the Security Interests. Any such release to the Issuer shall be deemed to release or reassign as appropriate in respect of the Collateral such grants and assignments arising hereunder.
At the written request of the Issuer, upon the payment in full of all Secured Obligations, including, without limitation, the payment in full in cash of all unpaid principal of and accrued interest on the Securities and all actual and contingent amounts (other than inchoate indemnification amounts) payable under the Hedge Agreements, the Indenture Trustee shall release the Security Interests in the Portfolio and the other Collateral hereunder. In connection therewith, the Indenture Trustee agrees, at the expense of the Issuer and without the necessity of any consent from any Secured Party, to execute such instruments of release, in recordable form if necessary, in favor of the Issuer as the Issuer may reasonably request in respect of the release of the Portfolio and the other Collateral from the Security Interests, and to otherwise release the security interests evidenced by this Master Indenture in and with respect to such Collateral to the Issuer and to issue confirmation to such Persons as the Issuer may direct, upon being requested to do so by the Issuer, that such Collateral is no longer subject to the Security Interests.
In connection with an Optional Redemption of Notes, concurrently with the deposit of the Redemption Price into the Redemption/Defeasance Account, if such Optional Redemption shall effect a redemption in whole of a Series of Notes then Outstanding, the Indenture Trustee shall be deemed to have been authorized to permit a release of Collateral in accordance with this paragraph. In order to effect any such Collateral release, the Servicer on behalf of the Issuer will identify in a Release Identification Letter a pool of individual Railcars and Leases (i) that were originally acquired by the Issuer on or prior to the issuance date of the Series being redeemed or substituted therefor, and (ii) that if such pool were released from the lien of this Master Indenture, would not result in (A) the Issuer being in violation of the Concentration Limits immediately after such proposed release of Collateral, (B) the Issuer’s remaining Portfolio Railcars immediately after such proposed release of Collateral having an average age
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which is more than twenty percent (20%) greater than the average age of the Issuer’s remaining Portfolio Railcars immediately prior to such proposed release of Collateral, (C) the Issuer’s remaining Portfolio Leases immediately after such proposed release of Collateral having an average remaining term which is less than eighty percent (80%) of the average remaining term of the Issuer’s Portfolio Leases immediately prior to such proposed release of Collateral, (D) the Book LTV Ratio immediately after such proposed release of Collateral being greater than the Book LTV Ratio immediately prior to such proposed release of Collateral and (E) the Current LTV Ratio immediately after such proposed release of Collateral being greater than the Current LTV Ratio immediately prior to such proposed release of Collateral. For this purpose:
“Release Identification Letter” means a letter from the Servicer (on behalf of the Issuer) addressed to the Indenture Trustee that identifies a pool of Railcars and Leases referred to in the preceding paragraph and certifies as to the satisfaction of the conditions in clause (ii) of the preceding paragraph. The Indenture Trustee shall be entitled to rely conclusively and exclusively on a Release Identification Letter without further investigation in connection with any release contemplated by the preceding paragraph.
“Book LTV Ratio” means, as of any date of determination, a ratio equivalent to a fraction, the numerator of which is the Outstanding Principal Balance of the Equipment Notes as of such date of determination, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such date of determination.
“Current LTV Ratio” means, as of any date of determination, a ratio equivalent to a fraction, the numerator of which is the Outstanding Principal Balance of the Equipment Notes as of such date of determination, and the denominator of which is the aggregate Special Appraised Value of the Portfolio Railcars as of such date of determination.
“Special Appraised Value” means the value assigned to the Railcars by Rail Solutions, Inc. or another independent railcar appraiser that is of comparable standing and reputation in the good faith judgment of the Servicer, as performed no earlier than ninety (90) days prior to the release date and obtained by the Servicer at the cost of the Issuer.
5.    Exercise of the Issuer’s Rights Concerning the Servicing Agreement. The Issuer hereby agrees that, whether or not an Event of Default has occurred and is continuing, so long as this Master Indenture has not been terminated and the Security Interests on the Collateral released, the Indenture Trustee (acting at the Direction of the Requisite Majority) shall have the exclusive right to exercise and enforce all of the rights of the Issuer set forth in Sections 8.2, 8.3, 8.5 (other than the right to propose the list of replacement servicers pursuant to Section 8.5(b)) and 8.6 of the Servicing Agreement (including, without limitation, the rights to deliver all notices, declare a Servicer Termination Event, terminate the Servicing Agreement, elect to replace the Servicer and/or elect to appoint a Successor Servicer and select any replacement Servicer, and the right to increase the Servicing Fee and/or add an incentive fee payable to any such Successor Servicer); provided that so long as no Event of Default has occurred and is continuing, the Issuer shall retain the non-exclusive right to approve the list of proposed replacement Servicers (such approval not to be unreasonably withheld or delayed) and to deliver notices under Section 8.2 of the Servicing Agreement and declare a Servicer Termination Event thereunder. In furtherance of the foregoing, the Issuer hereby irrevocably
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appoints the Indenture Trustee as its attorney-in-fact to exercise all rights described in this Granting Clause provision in its place and stead.
ARTICLE 1

DEFINITIONS
Section 1.01.Definitions. For purposes of this Master Indenture, the terms set forth in Annex A hereto shall have the meanings indicated in such Annex A.
Section 1.02.Rules of Construction. Unless the context otherwise requires:
(a)A term has the meaning assigned to it and an accounting term not otherwise defined has the meaning assigned to it in accordance with U.S. GAAP.
(b)The terms “herein”, “hereof” and other words of similar import refer to this Master Indenture as a whole and not to any particular Article, Section or other subdivision.
(c)Unless otherwise indicated in context, all references to Articles, Sections, Schedules, Exhibits or Annexes refer to an Article or Section of, or a Schedule, Exhibit or Annex to, this Master Indenture.
(d)Words of the masculine, feminine or neuter gender shall mean and include the correlative words of other genders, and words in the singular shall include the plural, and vice versa.
(e)The terms “include”, “including” and similar terms shall be construed as if followed by the phrase “without limitation”.
(f)References in this Master Indenture to an agreement or other document (including this Master Indenture) mean the agreement or other document and all schedules, exhibits, annexes and other materials that are part of such agreement and include references to such agreement or document as amended, supplemented, restated or otherwise modified in accordance with its terms and the provisions of this Master Indenture, and the provisions of this Master Indenture apply to successive events and transactions.
(g)References in this Master Indenture to any statute or other legislative provision shall include any statutory or legislative modification or re-enactment thereof, or any substitution therefor.
(h)References in this Master Indenture to the Securities of any Series or any Class, as the case may be, include the terms and conditions applicable to the Securities of such Series or such Class, as the case may be, and any reference to any amount of money due or payable by reference to the Securities of any Series or any Class, as the case may be, shall include any sum covenanted to be paid by the Issuer under this Master Indenture and the related Series Supplement in respect of the Securities of such Series or such Class, as applicable.
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(i)References in this Master Indenture to any action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security shall be deemed to include, in respect of any jurisdiction other than the State of New York, references to such action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security available or appropriate in such jurisdiction as shall most nearly approximate such action, remedy or method of judicial proceeding described or referred to in this Master Indenture.
(j)Where any payment is to be made, funds applied or any calculation is to be made hereunder on a day which is not a Business Day, unless this Master Indenture or any other Operative Agreement otherwise provides, such payment shall be made, funds applied and calculation made on the next succeeding Business Day, and payments shall be adjusted accordingly.
(k)For purposes of determining the balance of amounts credited to and/or deposited in an Indenture Account, the “value” of Permitted Investments deposited in and/or credited to an Indenture Account shall be the lower of the acquisition cost thereof and the then fair market value thereof and the “value” of Dollars and cash equivalents of Dollars (other than cash equivalents of Dollars included in the definition of Permitted Investments) shall be the face value thereof.
Section 1.03.Compliance Certificates and Opinions. Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Master Indenture or any Series Supplement, the Issuer shall furnish to the Indenture Trustee an Officer’s Certificate stating that, in the opinion of the signers thereof, all conditions precedent, if any, provided for in this Master Indenture and/or such Series Supplement relating to the proposed action have been complied with, and, if requested by the Indenture Trustee, an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Master Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Master Indenture, any Series Supplement or any Indenture Supplement shall include:
(a)a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions in this Master Indenture, such Series Supplement and/or such Indenture Supplement relating thereto;
(b)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c)a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
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(d)a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.04.Acts of Holders.
(a)Any direction, consent, waiver or other action provided by this Master Indenture in respect of the Securities of any Series or Class or the Collateral to be given or taken by the Indenture Trustee at the Direction of Holders (including a Control Party or a Requisite Majority) may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders, Control Party or Requisite Majority, as applicable, in person or by an agent or proxy duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, to each Rating Agency where it is hereby expressly required pursuant to this Master Indenture and to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders, Control Party or Requisite Majority signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose under this Master Indenture and any Series Supplement and conclusive in favor of the Indenture Trustee or the Issuer, if made in the manner provided in this Section.
(b)The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or such other officer and where such execution is by an officer of a corporation or association, trustee of a trust or member of a partnership, on behalf of such corporation, association, trust or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner that the Indenture Trustee deems sufficient.
(c)In determining whether any Holders, any Control Party or any Requisite Majority shall have given any direction, consent, request, demand, authorization, notice, waiver or other Act (any of the foregoing may be referred to as a “Direction”) under this Master Indenture or any Series Supplement (including without limitation any consent pursuant to Sections 4.04 or 9.02(a)), any Equipment Notes legally or beneficially owned by any Issuer Group Member shall be disregarded and deemed not to be Outstanding for purposes of any such determination. In determining whether the Indenture Trustee shall be protected in relying upon any such Direction, only Equipment Notes that a Responsible Officer of the Indenture Trustee actually knows to be so owned shall be so disregarded. Notwithstanding the foregoing, if any such Person legally or beneficially owns 100% of the Equipment Notes then Outstanding then such Equipment Notes shall not be so disregarded for purposes of such determination.
(d)The Issuer may at its option, by delivery of an Officer’s Certificate to the Indenture Trustee, set a record date other than the Record Date to determine the Holders in respect of the Securities of any Series entitled to give any Direction in respect of such
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Securities. Such record date shall be the record date specified in such Officer’s Certificate which shall be a date not more than 30 days prior to the first solicitation of Holders in connection therewith. If such a record date is fixed, such Direction may be given before or after such record date, but only the Holders of record of such Series at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities of such Series have authorized or agreed or consented to such Direction, and for that purpose the Outstanding Securities of such Series shall be computed as of such record date; provided that no such Direction by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Master Indenture not later than one year after the related record date.
(e)Any Direction or other action by a Holder (including a Control Party or a Requisite Majority) shall bind the Holder of every Security issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such action is made upon such Security.
ARTICLE 2

THE SECURITIES
Section 2.01.Authorization, Issuance and Authentication of the Securities; Amount of Outstanding Principal Balance; Terms; Form; Execution and Delivery.
(a)The number of Series of Notes which may be created by this Master Indenture is not limited. A single Series of Class E Certificates shall be created on the Initial Closing Date. The Securities shall be issued in such Series as may from time to time be created by Series Supplements pursuant to this Master Indenture and may be issued in such Classes within a Series as may be authorized by the related Series Supplement for such Series. Each Series shall be created by a separate Series Supplement and shall be identified in a manner sufficient to differentiate the Securities of each such Series from the Securities of any other Series. The Securities of each Series (and Classes within such Series) will rank pari passu with the Securities of each other Series upon the occurrence and during the continuation of an Event of Default and otherwise will be paid in accordance with the Flow of Funds.
(b)Upon satisfaction of and compliance with the requirements and conditions to closing set forth in the related Series Supplement, the Securities of the applicable Series to be executed and delivered on a particular Closing Date pursuant to such Series Supplement may be executed by the Issuer and delivered to the Indenture Trustee for authentication following the execution and delivery of the related Series Supplement creating such Series or from time to time thereafter, and the Indenture Trustee shall authenticate and deliver the Securities of such Series upon the Issuer’s request and direction set forth in an Officer’s Certificate of the Issuer signed by one of its Responsible Officers, without further action on the part of the Issuer. Notwithstanding anything to the contrary contained hereunder or in any Series Supplement, any such authentication may be made on separate counterparts and by facsimile.
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(c)There shall be issued, delivered and authenticated on the relevant Closing Date to each of the Holders identified on such Securities, Securities in the principal amounts and maturities and bearing interest at the relevant Stated Rate, in each case in registered form and substantially in the form set forth in an exhibit to the applicable Series Supplement or the Certificate Purchase Agreement, as applicable, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Master Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements printed, lithographed, typewritten or engraved thereon, as may be required to comply with the rules of any securities exchange on which such Securities may be listed or to conform to any usage in respect thereof, or as may, consistently herewith, be prescribed by the Indenture Trustee executing such Securities, such determination by said Indenture Trustee to be evidenced by its authentication of such Securities. Definitive Securities of a Series shall be printed, lithographed, typewritten or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the Indenture Trustee authenticating such Securities, as evidenced by such authentication.
(i)Each Series of Equipment Notes (or Class thereof) sold in reliance on Rule 144A shall be represented by one or more permanent 144A Book-Entry Notes which will be deposited with DTC or its custodian, the Indenture Trustee or an agent of the Indenture Trustee and registered in the name of Cede as nominee of DTC. The 144A Book-Entry Note shall only be transferred to a successor organization subject to the same terms and any other transfers of such 144A Book-Entry Note shall otherwise be limited as necessary in order for the 144A Book-Entry Note to constitute an immobilized obligation for purposes of Internal Revenue Service Notice 2012-20 (or such other guidance as may be adopted under the Code and Treasury Regulations).
(ii)Each Series of Equipment Notes (or Class thereof) offered and sold outside of the United States in reliance on Regulation S shall be represented by a Regulation S Temporary Book-Entry Note, which will be deposited with the Indenture Trustee or an agent of the Indenture Trustee as custodian for and registered in the name of Cede, as nominee of DTC. The Regulation S Temporary Book-Entry Note shall only be transferred to a successor organization subject to the same terms and any other transfers of such Regulation S Temporary Book-Entry Note shall otherwise be limited as necessary in order for the Regulation S Temporary Book-Entry Note to constitute an immobilized obligation for purposes of Internal Revenue Service Notice 2012-20 (or such other guidance as may be adopted under the Code and Treasury Regulations). Beneficial interests in each Regulation S Temporary Book-Entry Note may be held only through Euroclear or Clearstream; provided, however, that such interests may be exchanged for interests in a 144A Book-Entry Note or a Definitive Note in accordance with the certification requirements described in Section 2.07.
(iii)A beneficial owner of an interest in a Regulation S Temporary Book-Entry Note may receive payments in respect of such Regulation S Temporary Book-Entry Notes only after delivery to Euroclear or Clearstream, as the case may be, of a written certification substantially in the form set forth in Exhibit A-1 to this Master Indenture, and upon delivery by Euroclear or Clearstream, as the case may be, to the Indenture Trustee and Securities Registrar of a certification or certifications substantially
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in the form set forth in Exhibit A-2 to this Master Indenture. The delivery by a beneficial owner of the certification referred to above shall constitute its irrevocable instruction to Euroclear or Clearstream, as the case may be, to arrange for the exchange of the beneficial owner’s interest in the Regulation S Temporary Book-Entry Note for a beneficial interest in the Unrestricted Book-Entry Note after the Exchange Date in accordance with the paragraph below.
(iv)Not earlier than the Exchange Date, interests in each Regulation S Temporary Book-Entry Note will be exchangeable for interests in the related permanent global note (an “Unrestricted Book-Entry Note”). Each Unrestricted Book-Entry Note will be deposited with the Indenture Trustee and registered in the name of Cede as nominee of DTC. After (1) the Exchange Date and (2) receipt by the Indenture Trustee and Securities Registrar of written instructions from Euroclear or Clearstream, as the case may be, directing the Indenture Trustee and Securities Registrar to credit or cause to be credited to either Euroclear’s or Clearstream’s, as the case may be, depositary account a beneficial interest in the Unrestricted Book-Entry Note in a principal amount not greater than that of the beneficial interest in the Regulation S Temporary Book-Entry Note, the Indenture Trustee and Securities Registrar shall instruct DTC to reduce the principal amount of the Regulation S Temporary Book-Entry Note and increase the principal amount of the Unrestricted Book-Entry Note, in each case by the principal amount of the beneficial interest in the Regulation S Temporary Book-Entry Note to be so transferred, and to credit or cause to be credited to the account of a Direct Participant a beneficial interest in the Unrestricted Book-Entry Note having a principal amount equal to the reduction in the principal amount of such Regulation S Temporary Book-Entry Note.
(v)Upon the exchange of the entire principal amount of the Regulation S Temporary Book-Entry Note for beneficial interests in the Unrestricted Book-Entry Note, the Indenture Trustee shall cancel the Regulation S Temporary Book-Entry Note in accordance with the Indenture Trustee’s policies in effect from time to time.
(vi)No interest in the Regulation S Book-Entry Notes may be held by or transferred to a United States Person except for exchanges for a beneficial interest in a 144A Book-Entry Note or a Definitive Note as described below.
(vii)The Subordinated Notes shall be represented by Definitive Notes at all times and shall be held by either the applicable Holder or the Authorized Agent for the benefit of the applicable Holders of such Subordinated Notes, printed, lithographed, typewritten or otherwise produced, in any denomination, containing substantially the same terms and provisions as are set forth in the applicable exhibit to the Series Supplement. At the instruction of the Authorized Agent from time to time, a new Definitive Note representing a Subordinated Note shall be issued in the name and in a principal amount specified by the Authorized Agent in writing to the Issuer and the Indenture Trustee, and the applicable existing Definitive Note held by the Authorized Agent for the benefit of the Holders of Subordinated Notes will be exchanged for such new Definitive Note accordingly. In connection with transfers in whole or part of any Definitive Notes held directly by Holders of Subordinated Notes, the Authorized Agent
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may also from time to time request that new Definitive Notes be issued and old Definitive Notes be exchanged or cancelled, as applicable. The Authorized Agent must request in writing that the Issuer execute, and the Indenture Trustee authenticate any issuance or reissuance of Definitive Notes in accordance with Section 2.11(f).
(viii)The Class E Certificates, which are sold in reliance on Regulation D, shall be initially represented by Definitive Certificates held by the Certificate Agent for the benefit of the Holder of the Class E Certificates, printed, lithographed, typewritten or otherwise produced, in any denomination, containing substantially the same terms and provisions as are set forth in the applicable exhibit to the Certificate Purchase Agreement. Under the circumstances set forth in the Certificate Purchase Agreement, a Holder of the Class E Certificates may request that it receive a Definitive Certificate. At the instruction of the Certificate Agent, a new Definitive Certificate of the applicable class shall be issued in the name, and in a stated amount, specified by the Certificate Agent in writing to the Issuer and the Indenture Trustee, and the applicable existing Definitive Certificate held by the Certificate Agent for the benefit of the other Holders of the Class E Certificates will be exchanged for a new Definitive Certificate with a reduced stated amount. In connection with transfers in whole or part of any Definitive Certificates held directly by the Holders of the Class E Certificates, the Certificate Agent may also from time to time request that new Definitive Certificates be issued and old Definitive Certificates be exchanged or cancelled. The Certificate Agent must request in writing that the Issuer execute, and the Indenture Trustee authenticate, any issuance or reissuance of Definitive Certificates in accordance with clause (g) below.
(d)The Securities shall be executed on behalf of the Issuer by the manual or facsimile signature of an Authorized Representative of the Issuer.
(e)Each Security bearing the manual or facsimile signatures of any individual who was at the time such Security was executed an Authorized Representative of the Issuer shall bind the Issuer, notwithstanding that any such individual has ceased to hold such office prior to the authentication and delivery of such Securities or any payment thereon.
(f)No Security shall be entitled to any benefit under this Master Indenture or any related Series Supplement or be valid or obligatory for any purpose, unless it shall have been executed on behalf of the Issuer as provided in clause (b) and (e) above and authenticated by or on behalf of the Indenture Trustee as provided in clause (b) above. Such signatures shall be conclusive evidence that such Security has been duly executed and authenticated under this Master Indenture and any related Series Supplement. Each Security shall be dated the date of its authentication.
(g)At the written direction of the Certificate Agent from time to time, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver to the Certificate Agent, new and replacement Definitive Certificates from time to time in the amounts and in the names so directed by the Certificate Agent. The Indenture Trustee shall have no responsibility to deliver any such Definitive Certificate to the Holder of such Class E Certificate, and the issuance of Definitive Certificates shall not create any obligation on the part of the Issuer or the Indenture Trustee to make payments to any party other than the Certificate Agent, who will
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remain solely liable for distribution of amounts received in connection with the Class E Certificates to the Holders of the Class E Certificates.
Section 2.02.Restrictive Legends. The Class E Certificates shall bear the legends required under the Certificate Purchase Agreement. Each 144A Book-Entry Note, each Regulation S Temporary Book-Entry Note, each Unrestricted Book-Entry Note, each Subordinated Note and each Definitive Note (and all Notes issued in exchange therefor or upon registration of transfer or substitution thereof) shall bear a legend on the face thereof substantially in the form set forth below (unless counsel to the Issuer advises that a different legend or additional legend is required for any reason):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES OR “BLUE SKY” LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF TRIUMPH RAIL LLC (THE “ISSUER”) THAT THIS NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE), (2) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE UNITED STATES TO A PERSON WHO IS NOT A U.S. PERSON (AS SUCH TERM IS DEFINED IN REGULATION S OF THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH REGULATION S OF THE SECURITIES ACT OR (4) IN A TRANSACTION COMPLYING WITH OR EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (SUBJECT IN THE CASE OF THIS CLAUSE (4) TO RECEIPT OF AN OPINION OF COUNSEL AND SUCH CERTIFICATES AND OTHER DOCUMENTS AS ARE REQUIRED UNDER THE INDENTURE REFERRED TO BELOW), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
[In the case of Class A Equipment Notes or Class B Equipment Notes:
BY ITS ACQUISITION OF THIS NOTE, EACH PURCHASER AND TRANSFEREE (AND ITS FIDUCIARY, IF APPLICABLE) WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED EITHER THAT (A) IT IS NOT AND IS NOT USING THE ASSETS OF AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, A “PLAN” AS DEFINED BY AND SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR OTHER PLAN’S INVESTMENT IN SUCH ENTITY (EACH, A “BENEFIT PLAN”), OR A GOVERNMENTAL PLAN, NON-U.S. PLAN OR CHURCH PLAN SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT
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IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”), OR (B) THE PURCHASE AND HOLDING OF SUCH NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW.
ADDITIONALLY, IF A PURCHASER OR TRANSFEREE IS A BENEFIT PLAN, IT WILL BE DEEMED TO REPRESENT BY ITS PURCHASE OR ACQUISITION OF THIS NOTE (OR AN INTEREST THEREIN) THAT (I) NONE OF THE TRANSACTION PARTIES HAVE PROVIDED ANY INVESTMENT ADVICE WITHIN THE MEANING OF SECTION 3(21) OF ERISA TO THE BENEFIT PLAN, OR TO ANY FIDUCIARY OR OTHER PERSON INVESTING ON BEHALF OF THE BENEFIT PLAN OR WHO OTHERWISE HAS DISCRETION OR AUTHORITY OVER THE INVESTMENT AND MANAGEMENT OF “PLAN ASSETS” OF THE BENEFIT PLAN, IN CONNECTION WITH ITS ACQUISITION OF THIS NOTE AND (II) NO TRANSACTION PARTY IS ACTING AS A FIDUCIARY TO THE BENEFIT PLAN IN CONNECTION WITH THE BENEFIT PLAN’S PURCHASE OR ACQUISITION OF THIS NOTE.]
[In the case of Class C Equipment Notes or Class R Notes:
BY ITS ACQUISITION OF THIS NOTE, EACH PURCHASER AND TRANSFEREE (AND ITS FIDUCIARY, IF APPLICABLE) WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (A) IT IS NOT AND IS NOT USING THE ASSETS OF AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, A “PLAN” AS DEFINED BY AND SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR OTHER PLAN’S INVESTMENT IN SUCH ENTITY AND (B) IT IS NOT AND IS NOT USING THE ASSETS OF A GOVERNMENTAL PLAN, NON-U.S. PLAN OR CHURCH PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
[In the case of Book-Entry Notes:
THIS NOTE IS A GLOBAL BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE REFERRED TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
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CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO BELOW.]
[In the case of a Note issued with original issue discount, as defined in Section 1271 et seq. of the Code:
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED. FOR INFORMATION REGARDING THE ISSUE DATE, ISSUE PRICE, YIELD TO MATURITY AND THE AMOUNT OF OID, PLEASE CONTACT [ ], ATTN: [ ]]
[In the case of Subordinated Notes:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.]
[In the case of Subject Notes:
EACH HOLDER OF THIS NOTE AGREES (AND EACH APPLICABLE PERSON BY VIRTUE OF ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE (OR BY VIRTUE OF AGREEING TO ACT AS AN AGENT, REPRESENTATIVE OR INTERMEDIARY OF OR WITH RESPECT TO THE HOLDER OF SUCH A BENEFICIAL INTEREST) IS DEEMED TO AGREE) THAT THIS NOTE MAY NOT BE TRANSFERRED, AND NO TRANSFER (OR PURPORTED TRANSFER) OF ALL OR ANY PART OF THIS NOTE (OR ANY DIRECT OR INDIRECT BENEFICIAL INTEREST THEREIN) WHETHER TO THE INITIAL HOLDER, ANOTHER HOLDER OR TO A PERSON THAT IS NOT A HOLDER (ANY OF THESE, A “TRANSFEREE”) SHALL BE
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EFFECTIVE, AND TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW ANY SUCH TRANSFER (OR PURPORTED TRANSFER) SHALL BE VOID AB INITIO, AND NO PERSON SHALL OTHERWISE BECOME A HOLDER OF THIS NOTE (OR A HOLDER OF ANY DIRECT OR INDIRECT BENEFICIAL INTEREST HEREIN), UNLESS: (I) (A) EITHER (I) THE TRANSFEREE (OR, IF THE TRANSFEREE IS A DISREGARDED ENTITY FOR U.S. FEDERAL INCOME TAX PURPOSES, THE SOLE OWNER OF THE TRANSFEREE) IS NOT AND WILL NOT BECOME FOR U.S. FEDERAL INCOME TAX PURPOSES A PARTNERSHIP, SUBCHAPTER S CORPORATION OR GRANTOR TRUST (EACH SUCH ENTITY, A “FLOW-THROUGH ENTITY”) OR (II) IF THE TRANSFEREE (OR, IF THE TRANSFEREE IS A DISREGARDED ENTITY FOR U.S. FEDERAL INCOME TAX PURPOSES, THE SOLE OWNER OF THE TRANSFEREE) IS OR BECOMES A FLOW-THROUGH ENTITY, THEN EITHER (X) NONE OF THE DIRECT OR INDIRECT BENEFICIAL OWNERS OF ANY OF THE INTERESTS IN THE TRANSFEREE HAVE OR EVER WILL HAVE ALL OR SUBSTANTIALLY ALL THE VALUE OF ITS INTEREST IN THE TRANSFEREE ATTRIBUTABLE TO THE INTEREST OF THE TRANSFEREE IN THIS NOTE, ANY OTHER SUBJECT SECURITIES, OTHER INTEREST (DIRECT OR INDIRECT) IN THE ISSUER, OR ANY INTEREST CREATED UNDER THE MASTER INDENTURE OR (Y) IT IS NOT AND WILL NOT BE A PRINCIPAL PURPOSE OF THE ARRANGEMENT INVOLVING THE INVESTMENT OF THE TRANSFEREE IN THIS NOTE TO PERMIT ANY PARTNERSHIP TO SATISFY THE ONE HUNDRED (100) PARTNER LIMITATION OF SECTION 1.7704-1(H)(1)(II) OF THE TREASURY REGULATIONS NECESSARY FOR SUCH PARTNERSHIP NOT TO BE CLASSIFIED AS A PUBLICLY TRADED PARTNERSHIP UNDER THE CODE, (B) THE TRANSFEREE WILL NOT SELL, ASSIGN, TRANSFER OR OTHERWISE CONVEY ANY PARTICIPATING INTEREST IN THIS NOTE OR ANY FINANCIAL INSTRUMENT OR CONTRACT THE VALUE OF WHICH IS DETERMINED BY REFERENCE IN WHOLE OR IN PART TO THIS NOTE, AND (C) IT IS NOT ACQUIRING, AND WILL NOT SELL, TRANSFER, ASSIGN, PARTICIPATE, PLEDGE OR OTHERWISE DISPOSE OF, THIS NOTE (OR INTEREST THEREIN) OR CAUSE THIS NOTE (OR INTEREST THEREIN) TO BE MARKETED, ON OR THROUGH AN “ESTABLISHED SECURITIES MARKET” WITHIN THE MEANING OF SECTION 7704(B) OF THE CODE, INCLUDING, WITHOUT LIMITATION, AN INTERDEALER QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS, AND (II) AFTER SUCH TRANSFER THERE WOULD BE NO MORE THAN NINETY (90) MEMBERS OF THE LIMITED LIABILITY COMPANY THAT IS THE ISSUER (INCLUDING AS MEMBERS, SOLELY FOR PURPOSES OF THIS CLAUSE (II), HOLDERS OF ANY SUBJECT SECURITY (AND HOLDERS OF ANY BENEFICIAL INTEREST THEREIN) AND HOLDERS OF ANY OTHER INSTRUMENTS SUBJECT TO THE TRANSFER RESTRICTIONS OF SECTION 2.17(a) OF THE MASTER INDENTURE). ANY SUBSEQUENT TRANSFER OF THIS NOTE BY A TRANSFEREE SHALL BE SUBJECT TO THE LIMITATIONS OF THIS PARAGRAPH AND SHALL BE VOID AB INITIO, AND NO PERSON SHALL OTHERWISE BECOME A HOLDER OF THIS NOTE, UNLESS THIS PARAGRAPH AND THE PROVISIONS OF SECTION 2.17(a) OF THE MASTER INDENTURE ARE SATISFIED. {FOR DEFINITIVE NOTES ONLY: THE AUTHORIZED AGENT SHALL NOT REGISTER ANY TRANSFER OF THIS NOTE UNLESS THE AUTHORIZED AGENT (IN CONSULTATION WITH THE ISSUER) HAS
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CONFIRMED THAT AFTER SUCH TRANSFER, THE REQUIREMENTS OF SECTION 2.17(a) OF THE MASTER INDENTURE SHALL HAVE BEEN SATISFIED}. THE ISSUER SHALL NOT RECOGNIZE ANY PROHIBITED TRANSFER DESCRIBED IN THIS PARAGRAPH, INCLUDING WITHOUT LIMITATION BY (I) REDEEMING THE TRANSFEROR’S INTEREST, OR (II) RECOGNIZING THE TRANSFEREE AS A HOLDER OR OTHERWISE RECOGNIZING ANY RIGHT OF THE TRANSFEREE (INCLUDING, WITHOUT LIMITATION, ANY RIGHT OF THE TRANSFEREE TO RECEIVE PAYMENTS OR OTHER DISTRIBUTIONS FROM THE ISSUER, DIRECTLY OR INDIRECTLY).
EACH HOLDER OF THIS NOTE AND EACH OWNER OF A BENEFICIAL INTEREST IN THIS NOTE REPRESENTS AND AGREES THAT IF IT IS PART OF A SECTION 385 EXPANDED GROUP (OR IS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO A SECTION 385 EXPANDED GROUP), AND IF THE ISSUER IS TREATED AS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO SUCH SECTION 385 EXPANDED GROUP (ASSUMING SOLELY FOR THIS PURPOSE THAT THIS NOTE IS TREATED FOR U.S. FEDERAL INCOME TAX PURPOSES AS EQUITY), THEN NEITHER IT NOR ANY MEMBER OF (NOR ANY SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO) SUCH SECTION 385 EXPANDED GROUP WILL OWN OR WILL THEREAFTER (FOR SO LONG AS THIS NOTES IS SO OWNED) OWN ANY NOTES (THAT ARE OUTSTANDING FOR U.S. FEDERAL INCOME TAX PURPOSES) OF A CLASS OR SERIES SENIOR TO THIS NOTE (“SENIOR NOTES”), UNLESS SUCH HOLDER (OR OWNER) HAS EITHER (1) OBTAINED AND PROVIDED TO THE SECURITIES REGISTRAR AND THE ISSUER AN OPINION OF U.S. TAX COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT, UNDER THEN-EXISTING LAW, SUCH ACQUISITION AND OWNERSHIP OF SENIOR NOTES SHOULD NOT (ASSUMING SOLELY FOR THIS PURPOSE THAT THIS NOTE IS TREATED FOR U.S. FEDERAL INCOME TAX PURPOSES AS EQUITY) CAUSE SECTION 385 OF THE CODE, AND ANY PROPOSED, TEMPORARY, OR FINAL TREASURY REGULATIONS PROMULGATED THEREUNDER, TO APPLY TO SUCH SENIOR NOTES SO AS TO CAUSE ANY SUCH SENIOR NOTES TO BE RECLASSIFIED AS (OR GIVING RISE TO) EQUITY FOR U.S. FEDERAL INCOME TAX PURPOSES OR (2) AFTER HAVING PROVIDED THE SECURITIES REGISTRAR AND THE ISSUER SUCH INFORMATION, REPRESENTATIONS AND COVENANTS AS MAY BE REQUIRED BY THE ISSUER (IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER IN ITS SOLE DISCRETION) RELATING TO THE RISK OF RECHARACTERIZATION OF ANY SUCH SENIOR NOTES AS EQUITY UNDER TREASURY REGULATION SECTION 1.385-3, OBTAINS A WRITTEN CONFIRMATION FROM THE ISSUER THAT THE FOREGOING OPINION IS NOT REQUIRED. THE PRECEDING SENTENCE SHALL NOT APPLY IF EACH MEMBER OF THE SECTION 385 EXPANDED GROUP THAT INCLUDES SUCH HOLDER OR BENEFICIAL OWNER (OR WITH RESPECT TO WHICH SUCH HOLDER OR BENEFICIAL OWNER IS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY) IS A MEMBER OF THE SAME CONSOLIDATED GROUP
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(AS DESCRIBED IN TREASURY REGULATION SECTION 1.1502-1(H)) THAT FILES A CONSOLIDATED U.S. FEDERAL INCOME TAX RETURN.]
[In the case of Notes that are U.S.-Restricted Securities:
EACH HOLDER OF THIS NOTE AGREES (AND EACH APPLICABLE PERSON BY VIRTUE OF ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE (OR BY VIRTUE OF AGREEING TO ACT AS AN AGENT, REPRESENTATIVE OR INTERMEDIARY OF OR WITH RESPECT TO THE HOLDER OF SUCH A BENEFICIAL INTEREST) IS DEEMED TO AGREE) THAT THIS NOTE (AND ANY INTEREST THEREIN) MAY BE HELD ONLY BY UNITED STATES PERSONS AS DEFINED IN SECTION 7701(A)(30) OF THE CODE, AND THAT HE, SHE OR IT SHALL NOT MAKE ANY ISSUANCE, DELIVERY, SALE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE (OR ANY BENEFICIAL INTEREST IN THIS NOTE), AND ANY ISSUANCE, DELIVERY, SALE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE (OR ANY BENEFICIAL INTEREST IN THIS NOTE) WILL NOT BE EFFECTIVE AND WILL BE VOID AB INITIO, IF IT WOULD RESULT IN ANY PERSON THAT IS NOT A UNITED STATES PERSON HOLDING THIS NOTE OR ANY INTEREST THEREIN.]
[In the case of Notes, other than Subject Notes that, pursuant to Section 2.19(b), are to be reported as equity for U.S. federal income tax purposes:
EACH HOLDER OF THIS NOTE AGREES TO TREAT THIS NOTE AS DEBT FOR U.S. FEDERAL INCOME TAX PURPOSES.]
[In the case of Subject Notes that, pursuant to Section 2.19(b), are to be reported as equity for U.S. federal income tax purposes:
EACH HOLDER OF THIS NOTE AGREES TO TREAT THIS NOTE AS EQUITY FOR U.S. FEDERAL INCOME TAX PURPOSES.]
Section 2.03.Securities Registrar and Paying Agents.
(a)With respect to each Series of Securities, there shall at all times be maintained an office or agency in the location set forth in Section 13.04 where Securities of such Series may be presented or surrendered for registration of transfer or for exchange (each, a “Securities Registrar”), and for payment thereof (each, a “Paying Agent”) and where notices to or demands upon the Issuer in respect of such Securities may be served. For so long as any Series of Notes is listed on any stock exchange, the Issuer shall appoint and maintain a Paying Agent and a Securities Registrar acting for this purpose as an agent of the Issuer in the jurisdiction in which such stock exchange is located. The Issuer shall cause each Securities Registrar to keep a register of the Securities for which it is acting as Securities Registrar and of their transfer and exchange (the “Register”), which shall include the name and address of, and the Outstanding Principal Balance owing to, each Holder. Written notice of the location of each such other office or agency and of any change of location thereof shall be given by the Indenture Trustee to the Issuer and the Holders of the Securities of such Series so long as U.S. Bank is acting as Securities Registrar and Paying Agent. In the event that no such office or agency shall be maintained or no such notice of location or of change of location shall be given, presentations and demands may be made and notices may be served
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at the Corporate Trust Office of the Indenture Trustee. Notwithstanding anything to the contrary in this Master Indenture, the entries in the applicable Register shall be conclusive, in the absence of manifest error, and the Issuer, the Indenture Trustee, and the Holders shall treat each Person in whose name a Security is registered as the beneficial owner thereof (including with respect to all payments of principal and stated interest thereon) for all purposes of this Master Indenture. No transfer of a Security shall be effective unless such transfer has been recorded in the applicable Register as provided in this Section. U.S. Bank shall initially be a Paying Agent and Securities Registrar hereunder with respect to the Notes. With respect to the Class E Certificates, the Certificate Agent shall act as Paying Agent and Securities Registrar and will maintain the Register for the Class E Certificates.
(b)Each Authorized Agent (other than the Certificate Agent with respect to the Class E Certificates) shall (i) maintain an office or agency in the location listed as its address set forth in Section 13.04, (ii) be a bank, trust company or a corporation organized and doing business under the laws of the United States or any state or territory thereof or of the District of Columbia, with a combined capital and surplus of at least $75,000,000 (or having a combined capital and surplus in excess of $5,000,000 and the obligations of which, whether now in existence or hereafter incurred, are fully and unconditionally guaranteed by a corporation organized and doing business under the laws of the United States, any state or territory thereof or of the District of Columbia and having a combined capital and surplus of at least $75,000,000), and (iii) be authorized under the laws of the United States or any state or territory thereof to exercise corporate trust powers, subject to supervision by Federal or state authorities (such requirements, the “Eligibility Requirements”). The Certificate Agent and any other Securities Registrar other than the Indenture Trustee shall furnish to the Indenture Trustee, at stated intervals of not more than six months, and at such other times as the Indenture Trustee may request in writing, a copy of the Register maintained by such Securities Registrar.
(c)Any Person into which any Authorized Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authorized Agent shall be a party, or any Person succeeding to the corporate trust business of any Authorized Agent, shall be the successor of such Authorized Agent hereunder, if such successor Person is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authorized Agent or such successor Person.
(d)Any Authorized Agent may at any time resign by giving written notice of resignation to the Indenture Trustee and the Issuer; provided however that the Certificate Agent may only resign in accordance with the terms of the Certificate Purchase Agreement. The Issuer may, and at the request of the Indenture Trustee shall, at any time terminate the agency of any Authorized Agent by giving written notice of termination to such Authorized Agent and to the Indenture Trustee. Upon the resignation or termination of an Authorized Agent or if at any time any such Authorized Agent shall cease to be eligible under this Section (when, in either case, no other Authorized Agent performing the functions of such Authorized Agent shall have been appointed by the Indenture Trustee), the Issuer shall promptly appoint one or more qualified successor Authorized Agents to perform the functions of the Authorized Agent that has resigned or whose agency has been terminated or who shall have ceased to be eligible under this Section. The Issuer shall give written notice of any such
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appointment made by it to the Indenture Trustee; and in each case the Indenture Trustee shall send notice of such appointment to all Holders of the Securities of the related Series as their names and addresses appear on the Register for the Securities of such Series.
(e)The Issuer agrees to pay, or cause to be paid, from time to time reasonable compensation to each Authorized Agent (other than the Certificate Agent) for its services and to reimburse it for its reasonable expenses to be agreed to pursuant to separate agreements with each such Authorized Agent.
Section 2.04.Paying Agent to Hold Money in Trust. The Indenture Trustee shall require each Paying Agent other than the Indenture Trustee to agree in writing that all moneys deposited with any Paying Agent for the purpose of any payment on the Securities shall be deposited and held in trust for the benefit of the Holders entitled to such payment, subject to the provisions of this Section. Moneys so deposited and held in trust shall constitute a separate trust fund for the benefit of the Holders with respect to which such money was deposited. No Paying Agent shall hold monies payable by the Issuer to Hedge Providers.
The Indenture Trustee may at any time, for the purpose of obtaining the satisfaction and discharge of this Master Indenture or for any other purpose, direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such moneys.
Section 2.05.Method of Payment.
(a)On each Payment Date, the Indenture Trustee shall, or shall instruct a Paying Agent to, pay to the Holders of each Series all interest, principal, premium and/or other distributions, if any, on the Securities of such Series required to be paid on such Payment Date, in each case to the extent of the Available Collections Amount and pursuant to the Flow of Funds; provided, that in the event and to the extent receipt of any payment is not confirmed by the Indenture Trustee or such Paying Agent by noon (New York City time) on such Payment Date or any Business Day thereafter, distribution thereof shall be made on the Business Day following the Business Day such payment is received; provided further, that (i) payment on a Regulation S Temporary Book-Entry Note shall be made to the Holder thereof only in conformity with Section 2.05(c) and (ii) the Indenture Trustee shall make all payments with respect to the Class E Certificates to the Certificate Agent, who shall be responsible as Paying Agent for all payments to the Holders of such Class E Certificates in accordance with the Certificate Purchase Agreement. Each such payment on any Payment Date other than the final payment with respect to any Series of Securities shall be made by the Indenture Trustee or the applicable Paying Agent to the Holders as of the Record Date for such Payment Date. The final payment with respect to any Security, however, shall be made only upon presentation and surrender of such Security by the Holder or its agent at the Corporate Trust Office or agency of the Indenture Trustee or Paying Agent specified in the notice given by the Indenture Trustee or Paying Agent with respect to such final payment.
(b)At such time, if any, as the Notes of any Series are issued in the form of Definitive Notes, payments on a Payment Date shall be made by wire transfer to an account designated by each Holder in writing at least five (5) Business Days prior to such Payment
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Date, provided that if a Holder has not provided such information on a timely basis such payment shall be made by check mailed to each Holder of a Definitive Note on the applicable Record Date at its address appearing on the Register maintained with respect to such Series; provided that the final payment for each Series of Notes shall be made only upon presentation and surrender of the Definitive Notes of such Series by the Holder or its agent at the Corporate Trust Office or agency of the Indenture Trustee or Paying Agent specified in the notice of such final payment given by the Indenture Trustee or Paying Agent. The Indenture Trustee or Paying Agent shall mail such notice of the final payment of such Series to each of the Holders of such Series, specifying the date and amount of such final payment.
(c)The beneficial owner of a Regulation S Temporary Book-Entry Note of any Series may arrange to receive interest, principal and premium payments through Euroclear or Clearstream on such Regulation S Temporary Book-Entry Note only after delivery by such beneficial owner to Euroclear or Clearstream, as the case may be, of a written certification substantially in the form of Exhibit A-3 hereto, and upon delivery of Euroclear or Clearstream, as the case may be, to the Paying Agent of a certification or certifications substantially in the form of Exhibit A-4 hereto. No interest, principal or premium shall be paid to any beneficial owner, and no interest, principal or premium shall be paid to Euroclear or Clearstream on such beneficial owner’s interest in a Regulation S Temporary Book-Entry Note unless Euroclear or Clearstream, as the case may be, has provided such a certification to the Paying Agent with respect to such interest, principal and/or premium.
Section 2.6.Minimum Denomination. Unless otherwise specified in the Series Supplement for a Series, each Security shall be issued in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof; provided that, notwithstanding anything to the contrary herein, the Class E Certificates and one Note of each Class of a Series of Notes may be issued with such excess in integral multiples of $1.
Section 2.7.Exchange Option for Notes. If the holder (other than an Initial Purchaser) of a beneficial interest in an Unrestricted Book-Entry Note deposited with DTC wishes at any time to exchange its interest in the Unrestricted Book-Entry Note, or to transfer its interest in the Unrestricted Book-Entry Note to a Person who wishes to take delivery thereof in the form of an interest in the 144A Book-Entry Note, the holder may, subject to the rules and procedures of Euroclear or Clearstream and DTC, as the case may be, give directions for the Indenture Trustee and Securities Registrar to exchange or cause the exchange or transfer or cause the transfer of the interest for an equivalent beneficial interest in the 144A Book-Entry Note. Upon receipt by the Indenture Trustee and Securities Registrar of (a) instructions from Euroclear or Clearstream (based on instructions from depositaries for Euroclear and Clearstream) or from a DTC Participant, as applicable, or DTC, as the case may be, directing the Indenture Trustee and Securities Registrar to credit or cause to be credited a beneficial interest in the 144A Book-Entry Note equal to the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or transferred (such instructions to contain information regarding the DTC Participant account to be credited with the increase, and, with respect to an exchange or transfer of an interest in the Unrestricted Book-Entry Note, information regarding the DTC Participant account to be debited with the decrease), and (b) a certificate in the form of Exhibit A-8, given by the Holder (and the proposed transferee, if applicable), the Indenture Trustee and Securities Registrar shall instruct DTC to reduce the Unrestricted Book-Entry Note by the aggregate principal amount of the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or
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transferred, and the Indenture Trustee shall instruct DTC, concurrently with the reduction, to increase the principal amount of the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the Unrestricted Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in the instructions a beneficial interest in the 144A Book-Entry Note equal to the reduction in the principal amount of the Unrestricted Book-Entry Note.
If a holder (other than an Initial Purchaser) of a beneficial interest in the 144A Book-Entry Note wishes at any time to exchange its interest in the 144A Book-Entry Note for an interest in a Regulation S Book-Entry Note, or to transfer its interest in the 144A Book-Entry Note to a Person who wishes to take delivery thereof in the form of an interest in the Regulation S Book-Entry Note, the holder may, subject to the rules and procedures of DTC, give directions for the Indenture Trustee and Securities Registrar to exchange or cause the exchange or transfer or cause the transfer of the interest for an equivalent beneficial interest in the Regulation S Book-Entry Note. Upon receipt by the Indenture Trustee and Securities Registrar of (a) instructions given in accordance with DTC’s procedures from a DTC Participant directing the Indenture Trustee and Securities Registrar to credit or cause to be credited a beneficial interest in the Regulation S Book-Entry Note in an amount equal to the beneficial interest in the 144A Book-Entry Note to be exchanged or transferred, (b) a written order given in accordance with DTC’s procedures containing information regarding the account of the depositaries for Euroclear or Clearstream or another Clearing Agency Participant, as the case may be, to be credited with the increase and the name of the account and (c) certificates in the forms of Exhibits A-5 and A-7 hereto, respectively, given by the Holder and the proposed transferee of the interest, the Indenture Trustee and Securities Registrar shall instruct DTC to reduce the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred, and the Indenture Trustee and Securities Registrar shall instruct DTC, concurrently with the reduction, to increase the principal amount of the Regulation S Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in the instructions a beneficial interest in the Regulation S Book-Entry Note equal to the reduction in the principal amount of the 144A Book-Entry Note.
Notwithstanding anything to the contrary herein, an Initial Purchaser may exchange beneficial interests in the Regulation S Temporary Book-Entry Note held by it for interests in the 144A Book-Entry Note only after delivery by the Initial Purchaser of instructions to DTC for the exchange, substantially in the form of Exhibit A-6 hereto. Upon receipt of the instructions provided in the preceding sentence, the Indenture Trustee and Securities Registrar shall instruct DTC to reduce the principal amount of the Regulation S Temporary Book-Entry Note to be so transferred and shall instruct DTC to increase the principal amount of the 144A Book-Entry Note and credit or cause to be credited to the account of the placement agent a beneficial interest in the 144A Book-Entry Note having a principal amount equal to the amount by which the principal amount of the Regulation S Temporary Book-Entry Note was reduced upon the transfer pursuant to the instructions provided in the first sentence of this paragraph.
If a Book-Entry Note is exchanged for a Definitive Note, such Equipment Notes may be exchanged or transferred for one another only in accordance with such procedures as are substantially consistent with the provisions of the three immediately preceding paragraphs
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(including the certification requirements intended to ensure that the exchanges or transfers comply with Rule 144 or Regulation S, as the case may be) and as may be from time to time adopted by the Indenture Trustee.
Section 2.8.Mutilated, Destroyed, Lost or Stolen Securities. If any Security shall become mutilated, destroyed, lost or stolen, the Issuer shall issue, upon the written request of the Holder thereof and presentation of the Security or satisfactory evidence of destruction, loss or theft thereof to the Indenture Trustee or Securities Registrar, and the Indenture Trustee shall authenticate and the Indenture Trustee or Securities Registrar shall deliver in exchange therefor or in replacement thereof, a new Security of the same Series and Class (if applicable), payable to such Holder in the same principal amount, of the same maturity, with the same payment schedule, bearing the same interest rate and dated the date of its authentication. If the Security being replaced has become mutilated, such Security shall be surrendered to the Indenture Trustee or a Securities Registrar and forwarded to the Issuer by the Indenture Trustee or such Securities Registrar. If the Security being replaced has been destroyed, lost or stolen, the Holder thereof shall furnish to the Issuer, the Indenture Trustee or a Securities Registrar (i) such security or indemnity as may be required by them to save the Issuer, the Indenture Trustee and such Securities Registrar harmless and (ii) evidence satisfactory to the Issuer, the Indenture Trustee and such Securities Registrar of the destruction, loss or theft of such Security and of the ownership thereof. The Holder will be required to pay any tax or other governmental charge imposed in connection with such exchange or replacement and any other expenses (including the fees and expenses of the Indenture Trustee and any Securities Registrar) connected therewith.
Section 2.9.Payments of Transfer Taxes. Upon the transfer of any Security or Securities pursuant to Section 2.07, the Issuer or the Indenture Trustee may require from the party requesting such new Security or Securities payment of a sum to reimburse the Issuer or the Indenture Trustee for, or to provide funds for the payment of, any transfer tax or similar governmental charge payable in connection with the transfer.
Section 2.10.Book-Entry Registration.
(a)Upon the issuance of any Book-Entry Notes, DTC or its custodian will credit, on its book-entry registration and transfer system, the respective principal amounts of the individual beneficial interests represented by such Book-Entry Notes to the accounts of a Direct Participant. Ownership of beneficial interests in a Book-Entry Note will be limited to DTC Participants or Persons who hold interests through DTC Participants. Ownership of beneficial interests in the Book-Entry Notes will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC (with respect to interests of DTC Participants) and the records of DTC Participants (with respect to interests of Persons other than DTC Participants).
(b)So long as DTC, or its nominee, is the registered owner or holder of a Book-Entry Note, DTC or such nominee, as the case may be, will be considered the sole owner or Holder represented by such Book-Entry Note for all purposes under this Master Indenture, the Series Supplements and the Book-Entry Notes. Unless (a) DTC notifies the Issuer that it is unwilling or unable to continue as depository for a Book-Entry Note with respect to a Series, (b) the Issuer elects to terminate the book-entry system for the Book-Entry Notes
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with respect to a Series, or (c) an Event of Default has occurred and the Indenture Trustee acting at the Direction of the Control Party for the applicable Series certifies that continuation of a book-entry system through DTC (or a successor) for the Equipment Notes of such Series is no longer in the best interests of the Holders of such Series, owners of beneficial interests in a Book-Entry Note of such Series will not be entitled to have any portion of such Book-Entry Note registered in their names, will not receive or be entitled to receive physical delivery of Equipment Notes in definitive form and will not be considered to be the owners or Holders under this Master Indenture, the applicable Series Supplement or the Book-Entry Notes. In addition, no beneficial owner of an interest in a Book-Entry Note will be able to transfer that interest except in accordance with DTC’s applicable procedures (in addition to those under the related Series Supplement and those of Clearstream and Euroclear, in each case, as applicable).
(c)Investors may hold their interest in a Regulation S Book-Entry Note through Clearstream or Euroclear, if they are participants in such systems, or indirectly through organizations that are participants in such systems. After the Exchange Date, investors also may hold such interests through organizations other than Clearstream and Euroclear that are DTC Participants. Clearstream and Euroclear will hold interests in a Regulation S Book-Entry Note on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries, which in turn will hold such interests in a Regulation S Book-Entry Note in customers’ accounts in the depositaries’ names on the books of DTC. Investors may hold their interests in a 144A Book-Entry Note directly through DTC, if they are DTC Participants, or indirectly through organizations that are DTC Participants.
(d)All payments of principal and interest will be made by the Paying Agent on behalf of the Issuer in immediately available funds or the equivalent, so long as DTC continues to make its Same-Day Funds Settlement System available to the Issuer.
None of the Issuer, the Securities Registrar, the Paying Agent or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such registration instructions. Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the Persons in whose name the Definitive Notes are registered in the Register as Holders hereunder. Neither the Issuer nor the Indenture Trustee shall be liable if the Indenture Trustee or the Issuer is unable to locate a qualified successor Holder.
Definitive Notes of a Series will be transferable and exchangeable for Definitive Notes of the same Series at the office of the Indenture Trustee or the office of a Securities Registrar upon compliance with the requirements set forth herein. In the case of a transfer of only part of a holding of Definitive Notes, a new Definitive Note shall be issued to the transferee in respect of the part transferred and a new Definitive Note in respect of the balance of the holding not transferred shall be issued to the transferor and may be obtained at the office of the applicable Securities Registrar.
(e)Any beneficial interest in one of the Book-Entry Notes of any Series that is transferred to a Person who takes delivery in the form of an interest in another Book-Entry Note of the same Series will, upon transfer, cease to be an interest in such Book-Entry Note and become an interest in such other Book-Entry Note and, accordingly, will thereafter be
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subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Book-Entry Note for as long as it remains such an interest.
(f)Any Definitive Note delivered in exchange for an interest in a 144A Book-Entry Note pursuant to Section 2.07 shall bear the Private Placement Legend applicable to a 144A Book-Entry Note set forth in Section 2.02.
(g)Any Definitive Note delivered in exchange for an interest in an Unrestricted Book-Entry Note pursuant to Section 2.07 shall bear the Private Placement Legend applicable to a Unrestricted Book-Entry Note set forth in Section 2.02.
Section 2.11.Special Transfer Provisions.
(a)Transfers of Equipment Notes to Non-QIB Institutional Accredited Investors. The following provisions shall apply with respect to the registration of any proposed transfer of an Equipment Note (other than a Regulation S Temporary Book-Entry Note) or any interest therein to any Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons):
(i)The Securities Registrar shall register the transfer of any Equipment Note, whether or not such Equipment Note bears the Private Placement Legend, if the proposed transferee has delivered to the Securities Registrar (A) a certificate substantially in the form of Exhibit B hereto and (B) an Opinion of Counsel acceptable to the Issuer that such transfer is in compliance with the Securities Act.
(ii)If the proposed transferor is a Direct Participant holding a beneficial interest in the 144A Book-Entry Note, upon receipt by the Securities Registrar of (x) the documents, if any, required by paragraph (i) and (y) instructions given in accordance with the DTC’s and the Securities Registrar’s procedures, the Securities Registrar shall reflect on its books and records the date and a decrease in the principal amount of the 144A Book-Entry Note in an amount equal to the principal amount of the beneficial interest in the 144A Book-Entry Note to be transferred, and the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver, one or more Definitive Notes of like tenor and amount.
(b)Transfers of Equipment Notes to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of an interest in a 144A Book-Entry Note or a Definitive Note (other than a Subordinated Note) issued in exchange for an interest in such 144A Book-Entry Note in accordance with this Section 2.11(b) to a QIB (excluding Non-U.S. Persons):
(i)If the Equipment Note to be transferred consists of (x) Definitive Notes, the Securities Registrar shall register the transfer if such transfer is being made by a proposed transferor who delivers a certificate in the form of Exhibit A-8 hereto to the Issuer and the Securities Registrar, or has otherwise advised the Issuer and the Securities Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has advised the Issuer and the Securities Registrar in writing, that it is purchasing the Equipment Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any
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such account are QIBs within the meaning of Rule 144A, are aware that the sale to it is being made in reliance on Rule 144A and acknowledge that they have received such information regarding the Issuer as they have requested pursuant to Rule 144A or have determined not to request such information and that they are aware that the transferor is relying upon their foregoing representations in order to claim the exemption from registration provided by Rule 144A or (y) an interest in a 144A Book-Entry Note, the transfer of such interest may be effected only through the book-entry system maintained by the DTC.
(ii)If the proposed transferee is a Direct Participant, and the Equipment Note to be transferred is a Definitive Note, upon receipt by the Securities Registrar of the documents referred to in clause (i) and instructions given in accordance with the DTC’s and the Securities Registrar’s procedures, the Securities Registrar shall reflect on its books and records the date and an increase in the principal amount at maturity of the 144A Book-Entry Note in an amount equal to the principal amount at maturity of the Definitive Note to be transferred, and the Indenture Trustee shall cancel the Definitive Note so transferred.
(c)Transfers of Interests in a Regulation S Temporary Book-Entry Note. The following provisions shall apply with respect to registration of any proposed transfer of interests in a Regulation S Temporary Book-Entry Note:
(i)The Securities Registrar shall register the transfer of any interest in a Regulation S Temporary Book-Entry Note (x) if the proposed transferee is a Non-U.S. Person and the proposed transferor has delivered to the Securities Registrar a certificate substantially in the form of Exhibit A-7 or (y) if the proposed transferee is a QIB and the proposed transferor has checked the box provided for on the form of such Equipment Note stating, or has otherwise advised the Issuer and the Securities Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has advised the Issuer and the Securities Registrar in writing, that it is purchasing such Equipment Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account are QIBs within the meaning of Rule 144A, are aware that the sale to them is being made in reliance on Rule 144A and acknowledge that they have received such information regarding the Issuer as they have requested pursuant to Rule 144A or have determined not to request such information and that they are aware that the transferor is relying upon their foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(ii)If the proposed transferee is a Direct Participant that provides the documents referred to in clause (i)(y) above, upon receipt by the Securities Registrar of such documents and instructions given in accordance with DTC’s and the Securities Registrar’s procedures, the Securities Registrar shall reflect on its books and records the date and an increase in the principal amount of the 144A Book-Entry Note of the relevant Series, in an amount equal to the principal amount of the Regulation S Temporary Book-Entry Note of such Series to be transferred, and the Indenture Trustee shall decrease the amount of the Regulation S Temporary Book-Entry Note of such Series.
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(d)Transfers of Interests in an Unrestricted Book-Entry Note. The Securities Registrar shall register any transfer of interests in an Unrestricted Book-Entry Note, or a Definitive Note issued in exchange for an interest in a Regulation S Temporary Book-Entry Note or Unrestricted Book-Entry Note in accordance with Section 2.11(b), to U.S. Persons in accordance with Section 2.07, or to Non-U.S. Persons in accordance with the applicable procedures of Euroclear or Clearstream and their respective participants.
(e)Transfers of Equipment Notes to Non-U.S. Persons at any Time. With respect to any transfer of an Equipment Note to a Non-U.S. Person prior to the applicable Exchange Date, the Securities Registrar shall register any proposed transfer of a Regulation S Temporary Book-Entry Note to a Non-U.S. Person upon receipt of a certificate substantially in the form of Exhibit A-7 hereto from the proposed transferor.
(f)Transfers and Exchanges of Subordinated Notes. The Subordinated Notes or any beneficial interests therein may not be sold, pledged or otherwise transferred without an effective registration statement under the Securities Act related thereto or receipt by the Issuer of an opinion of counsel in a form satisfactory to the Issuer that such registration is not required under the Securities Act. Subject to Section 2.01(c)(vii) hereof, at the written instruction of the Authorized Agent from time to time, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver to the Authorized Agent, new and replacement Definitive Notes, as applicable, representing the Subordinated Notes, in the principal amounts and in the names so specified by the Authorized Agent in writing, and the applicable existing Definitive Notes held by the Authorized Agent for the benefit of the Holders of the Subordinated Notes will be exchanged for new Definitive Notes accordingly. The issuance of any new or replacement Definitive Notes, as applicable, shall not create any new obligation on the part of the Issuer or the Indenture Trustee to make payments to any party other than the Authorized Agent, who will remain solely liable for distribution of amounts received in connection with the Subordinated Notes to the Holders of such Subordinated Notes.
(g)Transfers of Class E Certificates. All transfers of Class E Certificates shall be subject to the transfer restrictions set forth in Section 2.17(a), Section 2.17(b) and in the Certificate Purchase Agreement.
(h)ERISA Transfer Restrictions.
(i)With respect to a Class A Equipment Note or Class B Equipment Note, each purchaser and subsequent transferee of any such Equipment Note will be deemed to have represented and warranted either that (A) it is not and is not using the assets of an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, a “plan” as defined by and subject to Section 4975 of the Code (a “Plan”), an entity whose underlying assets include “plan assets” by reason of an employee benefit plan’s or other plan’s investment in such entity (a “Benefit Plan”), or a governmental plan, non-U.S. plan or church plan subject to any federal, state, local or other law that is substantially similar to Title I of ERISA or Section 4975 of the Code (“Similar Law”), or (B) the purchase and holding of such Equipment Note will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of Similar Law. Additionally, if a purchaser or transferee is a Benefit Plan, it will be deemed to represent by its purchase or acquisition
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of a Class A Equipment Note or Class B Equipment Note (or an interest therein) that (i) none of the Transaction Parties have provided any investment advice within the meaning of Section 3(21) of ERISA to the Benefit Plan, or to any fiduciary or other person investing on behalf of the Benefit Plan or who otherwise has discretion or authority over the investment and management of “plan assets” of the Benefit Plan, in connection with its acquisition of such Notes, and (ii) no Transaction Party is acting as a fiduciary to the Benefit Plan in connection with the Benefit Plan’s purchase or acquisition of such Notes.
(ii)With respect to a Class C Equipment Note or Class R Note, each purchaser and subsequent transferee of any such Note will be deemed to have represented and warranted that (A) it is not and is not using the assets of an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, a Plan, or an entity whose underlying assets include “plan assets” by reason of an employee benefit plan’s or other plan’s investment in such entity and (B) it is not and is not using the assets of a governmental plan, non-U.S. plan or church plan that is subject to any Similar Law.
(iii)With respect to a Class E Certificate, each purchaser and subsequent transferee of any such Security will be deemed to have represented and warranted that (A) it is not and is not using the assets of an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, a Plan, or an entity whose underlying assets include “plan assets” by reason of an employee benefit plan’s or other plan’s investment in such entity and (B) it is not and is not using the assets of a governmental plan, non-U.S. plan or church plan that is subject to any Similar Law.
(i)General. By its acceptance of any Equipment Note bearing the Private Placement Legend, each Holder of such Equipment Note acknowledges the restrictions on transfer of such Equipment Note set forth in this Master Indenture and in the Private Placement Legend and agrees that it will transfer such Equipment Note only as provided in this Master Indenture. The Securities Registrar shall not register a transfer of any Equipment Note unless such transfer complies with the restrictions on transfer of such Equipment Note set forth in this Master Indenture. In connection with any transfer of Equipment Notes, each Holder agrees by its acceptance of its Equipment Notes to furnish the Indenture Trustee the certifications and legal opinions described herein to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act; provided that the Indenture Trustee shall not be required to determine (but may rely on a determination made by the Issuer with respect to) the sufficiency of any such legal opinions.
Section 2.12.Temporary Definitive Securities. Pending the preparation of Definitive Securities of a Series, the Issuer may execute and the Indenture Trustee may authenticate and deliver temporary Definitive Securities of such Series which are printed, lithographed, typewritten or otherwise produced, in any denomination, containing substantially the same terms and provisions as are set forth in the applicable exhibit to the related Series Supplement, except for such appropriate insertions, omissions, substitutions and other variations relating to their temporary nature as the Authorized Representative of the Issuer
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executing such temporary Definitive Securities may determine, as evidenced by his execution of such temporary Definitive Securities.
If temporary Definitive Securities of a Series are issued, the Issuer will cause Definitive Securities of such Series to be prepared without unreasonable delay. After the preparation of Definitive Securities of such Series, the temporary Definitive Securities shall be exchangeable for Definitive Securities upon surrender of such temporary Definitive Securities at the Corporate Trust Office of the Indenture Trustee, without charge to the Holder thereof. Upon surrender for cancellation of any one or more temporary Definitive Securities, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor Definitive Securities of the same Series, in authorized denominations and in the same aggregate principal amounts. Until so exchanged, such temporary Definitive Securities shall in all respects be entitled to the same benefits under this Master Indenture as Definitive Securities.
Section 2.13.Statements to Holders.
(a)With respect to each Collection Period, the Issuer shall, not later than the last Business Day before the Payment Date immediately following the last day of such Collection Period, cause the Administrator to deliver to the Indenture Trustee, and the Indenture Trustee shall (or shall instruct any Paying Agent to) promptly thereafter (but not later than such Payment Date) make available on the Indenture Trustee’s internet website, initially located at https://pivot.usbank.com, to each Rating Agency, each Hedge Provider and each Liquidity Facility Provider, and to each Holder of record with respect to such Payment Date, a report, substantially in the form attached as Exhibit C-1 hereto prepared by the Administrator or Servicer and setting forth the information described therein (each, a “Monthly Report”). Beginning in December of 2021, the Issuer shall cause the Administrator or Servicer to deliver to the Indenture Trustee with the Monthly Report for each December, and the Indenture Trustee shall (or shall instruct any Paying Agent to) make available at its internet website with the Monthly Report for each December to the Persons described in the first sentence in this Section 2.13(a), a report, substantially in the form attached as Exhibit C-2 hereto prepared by the Administrator or Servicer and setting forth the information described therein (each, an “Annual Report”). As soon as practicable following receipt, the Indenture Trustee shall (or shall instruct any Paying Agent to) make available to each Holder of record at the time of such posting at its internet website the Green Bond Report delivered by the Administrator pursuant to the Administrative Services Agreement. The Indenture Trustee shall also make available at its internet website, promptly upon written request, a copy of each Monthly Report and Annual Report to any Holder or other Secured Party and, at the written request of any Holder, to any prospective purchaser of any Securities from such Holder. If any Series of Securities is then listed on any stock exchange, the Indenture Trustee also shall make available at its internet website a copy of each Monthly Report and each Annual Report to the applicable listing agent on behalf of such stock exchange. The Indenture Trustee may change its website from time to time as shall be specified by the Indenture Trustee from time to time in writing to the Issuer, the Holders and each Rating Agency. In connection with providing access to the Indenture Trustee’s internet website, the Indenture Trustee may require registration and the acceptance of a disclaimer. The Indenture Trustee shall not be liable for the dissemination of information in accordance with this Indenture.
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(b)After the end of each calendar year but not later than the latest date permitted by law, the Administrator or Servicer shall deliver to the Indenture Trustee, and the Indenture Trustee shall (or shall instruct any Paying Agent to) furnish to each Person who at any time during such calendar year was a Holder of record of any Securities, a statement (for example, a Form 1099 or any other means required by law) prepared by the Administrator or Servicer containing such information as is required to be provided to such Person for U.S. federal income tax purposes with respect to each Series of Securities for such calendar year or, in the event such Person was a Holder of record of any Series during only a portion of such calendar year, for the applicable portion of such calendar year, and such other items as are readily available to the Administrator or Servicer and which a Holder shall reasonably request as necessary for the purpose of such Holder’s preparation of its U.S. federal income or other tax returns. So long as any of the Equipment Notes are registered in the name of DTC or its nominee, such report and such other items will be prepared on the basis of such information supplied to the Administrator by DTC and the Direct Participants, and will be delivered by the Indenture Trustee, when received from the Administrator or Servicer, to DTC for transfer to the applicable beneficial owners in the manner described above. In the event that any such information has been provided by any Paying Agent directly to such Person through other tax-related reports or otherwise, the Indenture Trustee in its capacity as Paying Agent shall not be obligated to comply with such request for information.
(c)With respect to the Class E Certificates, the Certificate Agent shall prepare and deliver the information described in Section 2.13(b) to the Issuer and each Holder of a Class E Certificate for the period of its ownership of such Class E Certificate as the same appears on the records of the Certificate Agent in accordance with the terms of the Certificate Purchase Agreement. At such time, if any, as the Notes of any Series are issued in the form of Definitive Notes, the Indenture Trustee shall prepare and deliver the information described in Section 2.13(b) to each Holder of record of a Definitive Note of such Series for the period of its ownership of such Definitive Notes as the same appears on the records of the Indenture Trustee.
(d)Whenever a notice or other communication is required under this Master Indenture to be given to Holders of a Series: (i) if any Equipment Notes of such Series are registered with DTC, Euroclear and/or Clearstream, the Indenture Trustee shall give all such notices and communications to DTC, Euroclear and/or Clearstream, as the case may be; (ii) if Definitive Notes of a Series have been issued, then the Indenture Trustee shall give notices and communications to the Holders of such Definitive Notes by U.S. mail to the addresses of such Holders in the Register and (iii) with respect to the Class E Certificates, the Indenture Trustee shall give all such notices and communications to the Certificate Agent.
Section 2.14.CUSIP, CINS and ISIN Numbers. The Issuer in issuing the Notes may use “CUSIP”, “CINS”, “ISIN” or other identification numbers (if then generally in use), and if so, the Indenture Trustee shall use CUSIP numbers, CINS numbers, ISIN numbers or other identification numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or exchange and that reliance may be placed only on the other identification numbers printed on the Securities; provided further, that failure to use “CUSIP”,
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“CINS”, “ISIN” or other identification numbers in any notice of redemption or exchange shall not affect the validity or sufficiency of such notice.
Section 2.15.Tax Treatment of the Securities. The parties hereto agree, and the Holders of the Equipment Notes and interests therein, by their purchase thereof shall be deemed to have agreed, to treat the Equipment Notes as debt for U.S. federal income tax purposes (except in the case of an Equipment Note held by a Person that is treated as the same taxpayer as the Issuer for U.S. federal income tax purposes). In addition, the parties hereto agree, and the Holders of the Subordinated Notes and Class E Certificates, as the case may be, and interests therein, by their purchase of such Securities shall be deemed to have agreed (i) to treat the Subordinated Notes as debt for U.S. federal income tax purposes (except in the case of (i) a Subordinated Note held by a Person that is treated as the same taxpayer as the Issuer for U.S. federal income tax purposes or (ii) a Later Sold Note, if any, that is to be reported as equity for such purposes pursuant to Section 2.19(b)) and (ii) to treat the Class E Certificates as equity in the Issuer for all purposes, including for U.S. federal, state and local income and franchise tax.
Section 2.16.Compliance with Withholding Requirements. Notwithstanding any other provision of this Master Indenture, the Issuer and Indenture Trustee shall comply with all United States federal income tax withholding requirements (without any corresponding gross up) with respect to payments to Holders of interest, original issue discount, or other amounts that are subject to withholding under the Code, Treasury regulations thereunder, published rulings and judicial decisions. The consent of the Holders shall not be required for any such withholding. None of the Issuer, the Indenture Trustee, or any other party shall be obligated to pay any additional amounts to Holders as a result of any withholding or deduction for, or on account of, any tax imposed on or with respect to payments in respect of the Securities. For all purposes of this Master Indenture, any amount deducted or withheld pursuant to this Section 2.16 with respect to any Holder shall be treated as cash distributed to such Holder at the time it is withheld or deducted.
Section 2.17.Limitation on Transfers.
(a)Notwithstanding any other provision of this Master Indenture, any Note for which an Opinion of Counsel has not been rendered to the Issuer, in form and substance reasonably satisfactory to the Issuer, to the effect that such Note will be characterized as debt for United States federal income tax purposes (a “Subject Note”) and any Class E Certificate (together with the Subject Notes, the “Subject Securities”) shall be subject to the limitations of this Section 2.17(a). The Issuer and each Holder of a Subject Security agrees (and each Applicable Person by virtue of acquiring a beneficial interest in a Subject Security (or by virtue of agreeing to act as an agent, representative or intermediary of or with respect to the holder of such a beneficial interest) is deemed to agree) that no Subject Securities may be transferred, and no transfer (or purported transfer) of all or any part of a Subject Security (or any direct or indirect beneficial interest therein) (a “Transferred Security”) whether to the Initial Holder, another Holder or to a Person that is not a Holder (any of these, a “Transferee”) shall be effective, and to the greatest extent permitted under Applicable Law any such transfer (or purported transfer) shall be void ab initio, and no Person shall otherwise become a Holder of a Subject Security (or a holder of any direct or indirect beneficial interest therein), unless: (i) (A) either (I) the Transferee (or, if the Transferee is a disregarded entity for U.S. federal income tax
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purposes, the sole owner of the Transferee) is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity, a “flow-through entity”) or (II) if the Transferee (or, if the Transferee is a disregarded entity for U.S. federal income tax purposes, the sole owner of the Transferee) is or becomes a flow-through entity, then either (x) none of the direct or indirect beneficial owners of any of the interests in the Transferee have or ever will have all or substantially all the value of its interest in the Transferee attributable to the interest of the Transferee in any Transferred Security, any other Subject Securities, other interest (direct or indirect) in the Issuer, or any interest created under this Master Indenture or (y) it is not and will not be a principal purpose of the arrangement involving the investment of the Transferee in any Transferred Security to permit any partnership to satisfy the one hundred (100) partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Code, (B) the Transferee will not sell, assign, transfer or otherwise convey any participating interest in any Subject Security or any financial instrument or contract the value of which is determined by reference in whole or in part to any Subject Security and (C) it is not acquiring, and will not sell, transfer, assign, participate, pledge or otherwise dispose of, any Transferred Security (or interest therein) or cause any Transferred Security (or interest therein) to be marketed, on or through an “established securities market” within the meaning of Section 7704(b) of the Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations, and (ii) after such transfer there would be no more than ninety (90) members of the limited liability company that is the Issuer (including as members, solely for purposes of this Section 2.17(a), Holders of any Subject Security (and holders of any beneficial interest therein) and holders of any other instruments subject to the transfer restrictions of this Section 2.17(a)). Any subsequent transfer of a Transferred Security by a Transferee shall be subject to the limitations of this Section 2.17(a) and shall be void ab initio, and no Person shall otherwise become a Holder of such Transferred Security, unless this Section 2.17(a) is satisfied. In the case of Subject Securities that are Definitive Securities, the Authorized Agent shall not register any transfer of such Subject Security unless the Authorized Agent (in consultation with the Issuer) has confirmed that after such transfer, the requirements of this Section 2.17(a) shall have been satisfied. The Issuer shall not recognize any prohibited transfer described in this Section 2.17(a), including without limitation by (i) redeeming the transferor’s interest, or (ii) recognizing the Transferee as a Holder or otherwise recognizing any right of the Transferee (including, without limitation, any right of the Transferee to receive payments or other distributions from the Issuer, directly or indirectly). The Series Supplement relating to each Series of Subject Securities may set forth such transfer restrictions (including minimum principal denominations), certification requirements, covenants and other matters applicable to such Subject Securities that the Issuer deems advisable to effectuate the requirements of this Section 2.17(a).
(b)Notwithstanding any other provision of this Master Indenture, any Class E Certificate, and any Subject Note for which an Opinion of Counsel has not been rendered to the Issuer, in form and substance reasonably satisfactory to the Issuer, to the effect that such Note will or should be characterized as debt for United States federal income tax purposes (collectively with the Class E Certificates, “U.S.-Restricted Securities”) shall be subject to the limitations of this Section 2.17(b). Each Holder of a U.S.-Restricted Security agrees (and each Applicable Person by virtue of acquiring a beneficial interest in a U.S.-Restricted Security (or by virtue of agreeing to act as an agent, representative or intermediary of or with respect to the
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holder of such a beneficial interest) is deemed to agree) that the U.S.-Restricted Security (and any interest therein) may be held only by United States persons as defined in Section 7701(a)(30) of the Code, and that he, she or it shall not make any issuance, delivery, sale, transfer or other disposition of the U.S.-Restricted Security (or any beneficial interest in the U.S.-Restricted Security), and any issuance, delivery, sale, transfer or other disposition of the U.S.-Restricted Security (or any beneficial interest in the U.S.-Restricted Security) will not be effective and will be void ab initio, if it would result in any person that is not a United States persons holding the U.S.-Restricted Security or any interest therein. In addition, each U.S.-Restricted Security shall be issued only as Definitive Securities.
(c)In addition to the transfer restrictions in Section 2.17(a) and Section 2.17(b), the Class E Certificates may only be transferred or assigned subject to certain limitations set forth in the Certificate Purchase Agreement.
(d)Each Holder of a Subject Security and each owner of a beneficial interest in a Subject Security represents and agrees that if it is part of a Section 385 Expanded Group (or is a Section 385 Controlled Partnership or disregarded entity with respect to a Section 385 Expanded Group), and if the Issuer is treated as a Section 385 Controlled Partnership or disregarded entity with respect to such Section 385 Expanded Group (assuming solely for this purpose that such Subject Security is treated for U.S. federal income tax purposes as equity, to the extent not otherwise so treated), then neither it nor any member of (nor any Section 385 Controlled Partnership or disregarded entity with respect to) such Section 385 Expanded Group will own or will thereafter (for so long as the Subject Security are so owned) own any Notes (that are outstanding for U.S. federal income tax purposes) of a Class or Series senior to such Subject Security (“Senior Notes”), unless such Holder (or owner) has either (i) obtained and provided to the Securities Registrar and the Issuer an opinion of U.S. tax counsel in form and substance satisfactory to the Issuer to the effect that, under then-existing law, such acquisition and ownership of Senior Notes should not (assuming solely for this purpose that the Subject Security are treated for U.S. federal income tax purposes as equity) cause Section 385 of the Code, and any proposed, temporary, or final treasury regulations promulgated thereunder, to apply to such Senior Notes so as to cause any such Senior Notes to be reclassified as (or giving rise to) equity for U.S. federal income tax purposes or (ii) after having provided the Securities Registrar and the Issuer such information, representations and covenants as may be required by the Issuer (in form and substance satisfactory to the Issuer in its sole discretion) relating to the risk of recharacterization of any such Senior Notes as equity under Treasury Regulation Section 1.385-3, obtains a written confirmation from the Issuer that the foregoing opinion is not required. The preceding sentence shall not apply if each member of the Section 385 Expanded Group that includes such Holder or beneficial owner (or with respect to which such Holder or beneficial owner is a Section 385 Controlled Partnership or disregarded entity) is a member of the same consolidated group (as described in Treasury Regulation section 1.1502-1(h)) that files a consolidated U.S. federal income tax return.
Section 2.18.Holder Tax Identification Information. Each Holder and holder of an interest in a Security, by acceptance of a Security or such interest therein, will be deemed to have agreed to provide the Issuer, the Indenture Trustee and each Paying Agent with such Holder Tax Identification Information as requested from time to time by the Issuer, the Indenture Trustee, or such Paying Agent. Each Holder and holder of an interest in a Security will be deemed to understand and agree that each of the Issuer, the Indenture Trustee and
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each Paying Agent has the right to (i) withhold tax (including without limitation taxes required to be withheld under FATCA) on interest and other applicable amounts under the Code (without any corresponding gross-up) payable with respect to each Holder and holder of an interest in a Security that fails to comply with the foregoing requirements or as otherwise required under the Code or other Applicable Law (including, for the avoidance of doubt, FATCA) and (ii) provide such information and documentation and any other information concerning its interest in the applicable Security to the Internal Revenue Service and any other relevant U.S. or foreign tax authority.
Section 2.19.Later Sold Notes. With respect to any outstanding Notes retained by the Issuer or originally issued to the sole owner (as determined for U.S. federal income tax purposes) of the Issuer and that are sold by such initial holder (or any Affiliate thereof) to an unrelated purchaser at a later time (a “Later Sold Note”), such sale will not be effective unless:
(a)the Issuer shall have obtained an opinion from tax counsel to the Issuer (which opinion is based on and subject to only customary representations, assumptions and qualifications for an opinion of this nature and may rely, as to factual matters, on a certificate of a Person whose duties relate to the matters being certified) to the effect that, for U.S. federal income tax purposes, (i) such action will not cause any Note of any Outstanding Series or Class for which an Opinion of Counsel to the Issuer was rendered in connection with the original issuance of such Note to the effect that such Note is characterized as debt for U.S. federal income tax purposes, to be characterized as other than debt and (ii) such action will not cause the Issuer to be treated as an association (or publicly traded partnership) taxable as a corporation,
(b)either (i) the Issuer shall have obtained an opinion from tax counsel to the Issuer (which opinion may rely, as to factual matters, on a certificate of a Person whose duties relate to the matters being certified) to the effect that, for U.S. federal income tax purposes, such Later Sold Note will be characterized as debt or (ii) the Issuer shall designate such Later Sold Note as a Subject Note. In the event such Later Sold Note is designated as a Subject Note, (i) the Issuer shall obtain advice of tax counsel as to whether such Subject Note is appropriately reported as debt, or equity, for U.S. federal income tax purposes, and the Issuer shall comply with such advice, (ii) such Subject Note shall be subject to the restrictions set forth in Section 2.17 and shall bear the appropriate legends as set forth in Section 2.02 and (iii) any such Subject Note characterized as equity pursuant to clause (i) of this sentence shall be represented by a Definitive Note at all times, and
(c)either (i) such Later Sold Note has a CUSIP number that is different than that of any other Notes Outstanding immediately prior to such sale, or (ii) the Issuer receives an Opinion of Counsel that, for U.S. federal income tax purposes, either (1) such Later Sold Note has the same issue price and issue date as any Outstanding Notes that have the same CUSIP number as the Later Sold Note or (2) neither the Later Sold Notes nor the Outstanding Notes that have the same CUSIP number as the Later Sold Notes were issued with original issue discount.
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ARTICLE 3

INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS
Section 3.01.Establishment of Indenture Accounts; Investments.
(a)Indenture Accounts. The Administrator, on behalf and at the direction of the Issuer, will establish or cause to be established with the Indenture Trustee on or before the Initial Closing Date and maintain all of the following accounts: (i) a collections account (the “Collections Account”), (ii) an optional reinvestment account (the “Optional Reinvestment Account”), (iii) an expense account (the “Expense Account”), (iv) a liquidity reserve account (the “Liquidity Reserve Account”) and (v) a liquidity facility collateral account (the “Liquidity Facility Collateral Account”). From time to time thereafter, the Administrator, on behalf and at the direction of the Issuer, will establish with the Indenture Trustee such other Indenture Accounts as may be authorized or required by this Master Indenture and the other Operative Agreements. The Administrator, on behalf of and at the direction of the Issuer, will (i) establish with the Indenture Trustee on or before the Initial Closing Date and maintain the Certificate Account, and (ii) establish with the Indenture Trustee on or before the Closing Date for each Series, and maintain, an account for such Series of Notes (each, a “Series Account”) and may so establish and maintain one or more sub-accounts of such Series Account for each Class of such Series (each, a “Class Account”). The Series Account and any Class Account for a Series will be identified in the Series Supplement for such Account.
(b)The Collections Account, the Optional Reinvestment Account, the Expense Account, and the Liquidity Reserve Account shall bear the account numbers set forth on Schedule 1 hereto. All amounts from time to time held in each Indenture Account (other than the Certificate Account and any Series Account) shall be held (i) in the name of the Indenture Trustee, for the benefit of the Secured Parties, and (ii) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture, and all such amounts shall constitute a part of the Collateral and shall not constitute payment of any Secured Obligation or any other obligation of the Issuer until applied as hereinafter provided. All amounts from time to time held in the Certificate Account and each Series Account shall be held (A) in the name of the Indenture Trustee, for the benefit of the Holders of the Class E Certificates (in the case of the Certificate Account) or the Holders of the related Series (in the case of any Series Accounts), and (B) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture and the Certificate Purchase Agreement or the related Series Supplement, as applicable, and all such amounts shall be collateral only for the relevant Class E Certificates or such Series and shall not constitute payment of the relevant Class E Certificates or such Series or any other obligation of the Issuer until applied as provided in this Master Indenture and the Certificate Purchase Agreement or the related Series Supplement, as applicable.
(c)Withdrawals and Transfers. The Indenture Trustee shall have sole dominion and control over the Indenture Accounts (including, inter alia, the sole power to direct withdrawals from or transfers among the Indenture Accounts), and the Issuer shall have no right to withdraw, or to cause the withdrawal of, funds or other investments held in the Indenture Accounts or to direct the investment of such funds or the liquidation of any Permitted
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Investments, in each case, other than as expressly provided herein, in the Certificate Purchase Agreement or, with respect to a Series Account, in a Series Supplement.
(d)Investments. For so long as any Securities remain Outstanding, the Indenture Trustee, at the written direction of the Administrator, shall invest and reinvest the funds on deposit in the Indenture Accounts (other than the Certificate Account and the Series Accounts, which shall not be invested) in Permitted Investments; provided, however, that if an Event of Default has occurred and is continuing, the Administrator shall have no right to direct such reinvestment and the Indenture Trustee shall invest such amount in Indenture Investments from the time of receipt thereof until such time as such amounts are required to be distributed pursuant to the terms of this Master Indenture. In the absence of written direction delivered to the Indenture Trustee from the Administrator, the Indenture Trustee shall invest any funds in a U.S. Bank money market deposit account. The Indenture Trustee shall make such investments and reinvestments in accordance with the terms of the following provisions:
(i)the Permitted Investments shall have maturities and other terms such that sufficient funds shall be available to make required payments pursuant to this Master Indenture on the Business Day immediately preceding the first Payment Date after which such investment is made; and
(ii)if any funds to be invested are not received in the Indenture Accounts by noon, New York City time, on any Business Day, such funds shall, if possible, be invested in a U.S. Bank money market deposit account.
(e)Earnings. Earnings on investments of funds in the Indenture Accounts shall be deposited in the Collections Account when received and credited as Collections for the Collection Period when so received, it being understood that funds in the Series Accounts and the Certificate Account shall not be invested.
(f)U.S. Bank as Securities Intermediary; Control.
(i)U.S. Bank shall act as the “securities intermediary” (within the meaning of the UCC) in respect of all securities and other property credited to the Indenture Accounts.
(ii)U.S. Bank as securities intermediary agrees with the parties hereto that each Indenture Account shall be an account to which financial assets (within the meaning of the UCC) may be credited and undertakes to treat the Indenture Trustee as entitled to exercise rights that comprise such financial assets. U.S. Bank as securities intermediary agrees with the parties hereto that each item of property credited to each Indenture Account shall be treated as such a financial asset. U.S. Bank as securities intermediary acknowledges that the “securities intermediary’s jurisdiction” as defined in the UCC with respect to the Collateral, shall be the State of New York. U.S. Bank as securities intermediary represents and covenants that it is not and will not be (as long as it is acting as securities intermediary hereunder) a party to any agreement in respect of the Collateral that is inconsistent with the provisions of this Master Indenture. U.S. Bank as securities intermediary agrees that any item of property credited to any Indenture Account shall not be subject to any security interest, lien, or right of setoff in favor of the
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securities intermediary or anyone claiming through the securities intermediary (other than the Indenture Trustee).
(iii)It is the intent of the Indenture Trustee and the Issuer that each Indenture Account shall be a securities account of the Indenture Trustee and not an account of the Issuer. Nonetheless, U.S. Bank as securities intermediary agrees that it will comply with entitlement orders originated by the Indenture Trustee without further consent by the Issuer. U.S. Bank as securities intermediary hereby further covenants that it will not agree with any person or entity (other than the Indenture Trustee) that it will comply with entitlement orders originated by such person or entity.
(iv)Nothing herein shall imply or impose upon U.S. Bank as securities intermediary any duty or obligations other than those expressly set forth herein and those applicable to a securities intermediary under the UCC (and U.S. Bank as securities intermediary hereunder shall be entitled to all of the protections available to a securities intermediary under the UCC). Without limiting the foregoing, nothing herein shall imply or impose upon U.S. Bank as securities intermediary any duties of a fiduciary nature (but not in limitation of any such duties of the Indenture Trustee hereunder).
(v)U.S. Bank as securities intermediary hereby represents and warrants and agrees with the Issuer and for the benefit of the Indenture Trustee as follows:
(A)With respect to Permitted Investments and Indenture Investments that are book entry securities, such Permitted Investments and Indenture Investments have been credited to the Indenture Trustee’s securities account by accurate book entry.
(B)The securities intermediary shall not accept entitlement orders from any other person except as authorized by the Indenture Trustee.
(C)To the extent determined by the actions of U.S. Bank as securities intermediary, the Indenture Trustee shall at all times have “control” (as defined in Section 8-106 of the UCC) over the securities account and the Permitted Investments and Indenture Investments that are book entry securities.
(D)U.S. Bank as securities intermediary has received no notice of, and has no knowledge of any “adverse claim” (as such term is defined in the UCC) as to the Collateral.
(E)U.S. Bank as securities intermediary waives any lien, claim or encumbrance in favor of the securities intermediary in the Collateral.
(F)U.S. Bank as securities intermediary is a “securities intermediary” as such term is defined in Section 8-102(a)(14) of the UCC and in the ordinary course of its business maintains “securities accounts” for others, as such terms are used in Section 8-501 of the UCC and as securities intermediary will be acting in such capacity hereunder.
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(G)U.S. Bank as securities intermediary is not a “clearing corporation,” as such term is defined in Section 8-102(a)(5) of the UCC.
(vi)Each of the Issuer and the Indenture Trustee hereby agrees and acknowledges that U.S. Bank as securities intermediary, for the benefit of the Indenture Trustee and the Secured Parties, shall have “control” over each Indenture Account under and for purposes of Section 9-104(a)(1) of the UCC.
(g)Investment Disclosure. The Issuer and the Holders, by their acceptance of the Securities or their interests therein, acknowledge that shares or investments in Permitted Investments or Indenture Investments are not obligations of U.S. Bank, or any parent or affiliate of U.S. Bank, are not deposits and are not insured by the FDIC. The Indenture Trustee or its affiliate may be compensated by mutual funds or other investments comprising Permitted Investments or Indenture Investments for services rendered in its capacity as investment advisor, or other service provider, and such compensation is both described in detail in the prospectuses for such funds or investments, and is in addition to the compensation, if any, paid to U.S. Bank in its capacity as Indenture Trustee hereunder. The Issuer and Holders agree that the Indenture Trustee shall not be responsible for any losses or diminution in the value of the Indenture Accounts occurring as a result of the investment of funds in the Indenture Accounts in accordance with the terms hereof.
(h)Brokerage Confirmations. The Issuer acknowledges that to the extent the regulations of the Comptroller of the Currency or other applicable regulatory agency grant the Issuer the right to receive brokerage confirmations of securities transactions, the Issuer waives receipt of such confirmations. The Issuer shall retain the authority to institute, participate and join in any plan of reorganization, readjustment, merger or consolidation with respect to the issuer of any Permitted Investments held hereunder, and, in general, to exercise each and every other power or right with respect to such Permitted Investments as individuals generally have and enjoy with respect to their own assets and investments, including power to vote upon any matter relating to holders of such Permitted Investments.
Section 3.02.Collections Account.
(a)Pursuant to and in accordance with the terms of the Account Administration Agreement, the Account Collateral Agent is to, upon receipt thereof, deposit in the Customer Payment Account the Collections received by it. Pursuant to and subject to the terms of the Account Administration Agreement, on each Business Day all amounts constituting Collections on deposit in the Customer Payment Account are to be transferred by the Account Collateral Agent to the Collections Account.
(b)The Indenture Trustee shall, upon receipt thereof, deposit in the Collections Account all Collections and all other payments received by it (and that are identified as such when received) in connection with the Portfolio.
(c)Additional funds may be deposited into the Collections Account from the Liquidity Reserve Account in accordance with Section 3.04, the Optional Reinvestment Account in accordance with Section 3.05 or by the Member through Capital Contributions in accordance with Section 3.17.
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(d)All or any portion of any Net Disposition Proceeds from a Permitted Railcar Disposition received in the Collections Account may be transferred to the Optional Reinvestment Account pursuant to Section 3.05.
(e)On each Closing Date, at the direction of the Issuer, a portion of cash proceeds from the issuance of the Securities of the applicable Series, together with the amount of any necessary Capital Contribution made by the Member to the Issuer, will be deposited in the Collections Account in order to assure sufficient funds are available for payments on the first Payment Date for such Series pursuant to Section 3.11(a).
(f)All of the transfers of funds described in this Section 3.02 will be made prior to the distribution of the Available Collections Amount pursuant to Section 3.11.
Section 3.03.Withdrawal upon an Event of Default. After the occurrence of and during the continuance of an Event of Default, at the Direction of the Requisite Majority, the Indenture Trustee shall withdraw any or all funds then on deposit in any of the Indenture Accounts (other than the Certificate Account and the Series Accounts) and transfer such funds to the Collections Account for application on the next upcoming Payment Date in accordance with the Flow of Funds.
Section 3.04.Liquidity Reserve Account; Liquidity Facilities.
(a)On the Initial Closing Date, the Issuer shall enter into the Initial Liquidity Facility and deliver a copy thereof to the Indenture Trustee. On or after the Initial Closing Date, the Issuer: (i) may deliver to the Indenture Trustee one or more additional Liquidity Facilities issued in accordance with Section 3.15 in an amount up to the Liquidity Reserve Target Amount; or (ii) shall, if the Issuer does not deliver a Liquidity Facility, or delivers a Liquidity Facility or Liquidity Facilities in an amount that is less than the Liquidity Reserve Target Amount, deposit (or cause to be deposited) in the Liquidity Reserve Account, cash in an amount necessary to cause the amount on deposit in the Liquidity Reserve Account (plus the amount of the Liquidity Facilities) to equal the Liquidity Reserve Target Amount as of such date, out of the Net Proceeds of a new Series of Additional Notes and/or from funds contributed by the Member to the Issuer as equity on or prior to such date, as applicable.
(b)On each Payment Date on which the Available Collections Amount is to be distributed pursuant to the Flow of Funds, if (i) the sum of (A) the Liquidity Facility Available Amounts for all Liquidity Facilities plus (B) the Balance in the Liquidity Reserve Account is less than (ii) the Liquidity Reserve Target Amount as of such Payment Date, the Indenture Trustee shall, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e), deposit funds into the Liquidity Reserve Account in order to restore the Balance therein to the Liquidity Reserve Target Amount as of such Payment Date, to the extent of the Available Collections Amount as provided in the Flow of Funds.
(c)If the Available Collections Amount on any Payment Date is insufficient to pay (A) the interest then due on the Outstanding Class A Equipment Notes and Outstanding Class B Equipment Notes (excluding, in each case, Additional Interest), (B) the net payments owed by the Issuer under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) and (C) all amounts senior to the
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interest referred to in clause (A) above (excluding Additional Interest) in the Flow of Funds, the Indenture Trustee shall, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e), effect a draw on the Liquidity Reserve Account and, if necessary, a draw on one or more Liquidity Facilities (including but not limited to amounts on deposit in any Liquidity Facility Collateral Account or such similar account described in any Additional Liquidity Facility), and make a deposit in the Collections Account for allocation as part of the Available Collections Amount on the related Payment Date, in an amount equal to the lesser of (i) the aggregate amount of the shortfalls described in clauses (A), (B) and (C) and (ii) the Balance in the Liquidity Reserve Account and/or the Liquidity Facility Available Amounts for the Liquidity Facilities, as applicable, as of the related Determination Date as set forth in such Payment Date Schedule. If the Balance in the Liquidity Reserve Account and/or the Liquidity Facility Available Amounts for the Liquidity Facilities, as applicable, as of such Determination Date is less than the aggregate amount of such shortfalls for the related Payment Date, then any such balance remaining (after transfer to the Collections Account and allocation and application to amounts senior to interest on the Equipment Notes in the Flow of Funds) will be allocated on such Payment Date, first, pro rata (x) to pay interest then due on the Outstanding Class A Equipment Notes (other than Additional Interest) and (y) to pay such net payments owed by the Issuer under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) and second, to pay interest then due on the Outstanding Class B Equipment Notes (other than Additional Interest). After giving effect to such allocation and payment with respect to the interest then due on the Outstanding Equipment Notes (excluding Additional Interest), (a) any shortfall in the amount available to pay such interest then due on the Outstanding Equipment Notes (excluding Additional Interest) on such Payment Date shall be allocated pro rata among the Outstanding Series of Notes, (b) the amount of such shortfall allocated to each Series of Notes shall be the “Net Stated Interest Shortfall” for such Series of Notes, and (c) the Net Stated Interest Shortfall for each Series of Notes shall be added to the Stated Interest Amount of such Series for the next succeeding Payment Date.
(d)On each Payment Date on which the Available Collections Amount is to be distributed pursuant to the Flow of Funds, before making any distributions pursuant thereto, the Indenture Trustee, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e), shall withdraw from the Liquidity Reserve Account and deposit in the Collections Account the excess, if any, of (A) the sum of the Liquidity Facility Available Amounts for all Liquidity Facilities plus the Balance in the Liquidity Reserve Account (after giving effect to any withdrawals therefrom to be made on such Payment Date pursuant to Section 3.04(c)) over (B) the Liquidity Reserve Target Amount (determined after giving effect to any payments of principal on Equipment Notes to be made on such Payment Date).
(e)Upon repayment in full of all Outstanding Equipment Notes, the Balance in the Liquidity Reserve Account (after giving effect to any withdrawals therefrom on such date pursuant to Section 3.04(c)), shall be deposited into the Collections Account for allocation pursuant to the Flow of Funds.
(f)The Issuer may attempt to procure a reduction in the amount of the Liquidity Reserve Target Amount from time to time, subject to obtaining a Rating Agency Confirmation and receiving the prior written consent of the Indenture Trustee (to be given only
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at the Direction of the Requisite Majority), following which the Liquidity Reserve Target Amount shall be the amount as so reduced.
Section 3.05.Optional Reinvestment Account.
(a)The Issuer may elect, by notice to the Indenture Trustee in writing, no later than the end of the Business Day immediately preceding the later of (i) the date of any Permitted Railcar Disposition and (ii) the date on which the relevant Net Disposition Proceeds are received from such Permitted Railcar Disposition, to deposit all or a portion of the Net Disposition Proceeds realized from such Permitted Railcar Disposition (as specified in such notice), whether or not initially deposited in the Collections Account, into the Optional Reinvestment Account. Such notice from the Issuer will include, among other things, the date on which the relevant Replacement Period will conclude. The Indenture Trustee shall deposit in the Collections Account all or any portion of the Net Disposition Proceeds realized from any Permitted Railcar Disposition as to which the direction described in the preceding sentence is not received (and for which such amounts have been identified to the Indenture Trustee in writing to be Net Disposition Proceeds) by the end of the last Business Day preceding the later of (x) the date of any such Permitted Railcar Disposition and (y) the date on which such Net Disposition Proceeds are received in connection with such Permitted Railcar Disposition.
(b)The Issuer may elect, at any time during the related Replacement Period, to apply the Net Disposition Proceeds from an Permitted Railcar Disposition deposited into the Optional Reinvestment Account pursuant to Section 3.05(a) in a Permitted Railcar Acquisition. On each Delivery Date during the Replacement Period on which the Issuer acquires an Additional Railcar from a Seller in a Permitted Railcar Acquisition, the Indenture Trustee, at the written direction of the Administrator accompanied by a written statement of the Administrator that all of the conditions for payment of the Purchase Price for such Additional Railcar specified in the applicable Asset Transfer Agreement have been satisfied, and that the requirements of Section 5.03(b) or 5.03(c), as applicable, have been satisfied, will transfer funds in an amount equal to the Purchase Price for such Additional Railcar from the Optional Reinvestment Account to the applicable Seller.
(c)The Issuer may elect to transfer to the Collections Account any Net Disposition Proceeds previously deposited in the Optional Reinvestment Account pursuant to Section 3.05(a) during the Replacement Period. The Indenture Trustee, without further direction from the Administrator, shall transfer any relevant Net Disposition Proceeds on deposit in the Optional Reinvestment Account remaining at the end of the relevant Replacement Period to the Collections Account on the next Business Day after the end of such Replacement Period. All amounts so transferred to the Collections Account may not be withdrawn therefrom except pursuant to Section 3.14.
Section 3.06.Expense Account.
(a)On each Closing Date, the Administrator shall direct the Indenture Trustee in writing to (i) pay to such Persons as shall be specified by the Administrator such Issuance Expenses as shall be due and payable in connection with the issuance and sale of the Securities on such Closing Date, and (ii) transfer to the Expense Account the Required Expense Deposit, in each case out of the Net Proceeds of the Securities issued on such
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Closing Date or the proceeds of a Capital Contribution by the Member to the Issuer or from any combination thereof.
(b)On each Payment Date, the Administrator will, in accordance with the priority of payments set forth in the Flow of Funds, direct the Indenture Trustee, in writing, to pay or reimburse any Operating Expenses that have been actually incurred or that are due and payable on such Payment Date and to transfer to the Expense Account funds in an amount equal to the Required Expense Deposit.
(c)On any Business Day between Payment Dates, the Administrator may direct the Indenture Trustee, in writing, to withdraw funds from the Expense Account in order to pay or reimburse any Operating Expenses that the Administrator certifies in such writing are Operating Expenses that have been actually incurred or that are then due and payable.
(d)On the last Final Maturity Date for all Series of Notes, after payment of all Operating Expenses due on such Final Maturity Date, the Indenture Trustee shall transfer the Balance in the Expense Account to the Collections Account for distribution in accordance with the Flow of Funds.
Section 3.07.Series Accounts.
(a)Upon the issuance of a Series of Notes, the Administrator shall cause to be established and maintained a Series Account for such Series of Notes.
(b)On each Payment Date, amounts will be deposited into each applicable Series Account in accordance with Section 3.08 and Section 3.11.
(c)All amounts transferred to a Series Account for any Series of Notes in accordance with Section 3.08 and Section 3.11 shall be used by the Indenture Trustee for the payment of such Series of Notes (or Class thereof) in accordance with the terms of this Master Indenture and the related Series Supplement.
Section 3.08.Redemption/Defeasance Account.
(a)Upon the sending of a Redemption Notice in respect of any Series of the Securities or any Class thereof, or an election by the Issuer to effect a legal defeasance or covenant defeasance of any Series of the Securities or any Class thereof pursuant to Article 12, the Indenture Trustee will establish a Redemption/Defeasance Account to retain the proceeds to be used in order to redeem or defease such Series or Class. If any cash Capital Contribution is made in connection with any Optional Redemption, the Member will notify the Administrator in writing of the amount thereof, and the Administrator will notify the Indenture Trustee in writing within one Business Day after the making of any such Capital Contribution that such Capital Contribution has been made.
(b)Amounts shall be deposited into any Redemption/Defeasance Account in accordance with Section 3.13.
(c)On each Redemption Date, the Administrator shall direct the Indenture Trustee in writing to transfer a portion of the proceeds of any Optional Redemption equal to the
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Redemption Price of such Series of Securities from the Redemption/Defeasance Account, established in respect of such Optional Redemption in accordance with Section 3.13, to the Series Account for such Series (except that an amount equal to the Hedge Termination Value that is owed by the Issuer, if any, included in the Redemption Price concurrently will be directed to be withdrawn from the Redemption/Defeasance Account and paid to the applicable Hedge Provider).
(d)On each Payment Date, in respect of any Series of Securities that is the subject of a legal defeasance or covenant defeasance, the Administrator shall direct the Indenture Trustee in writing to transfer from the Redemption/Defeasance Account to the Series Account or the Certificate Account, as applicable, for such Series, and from such Series Account or the Certificate Account to the Holders of such Securities the payments of principal and interest due on such Securities.
Section 3.9.[Reserved.]
Section 3.10.Calculations.
(a)As soon as reasonably practicable after each Determination Date, but in no event later than 12:00 noon (New York City time) on the third Business Day prior to the immediately succeeding Payment Date, the Issuer shall cause the Administrator, based on information known to it or Relevant Information provided to it, to determine the amount of Collections received during the Collection Period ending immediately prior to such Determination Date (including the amount of any investment earnings on the Balances in the Collections Account, if any, as of such Determination Date) and shall calculate the following amounts:
(i)(A) the Balances in each of the Indenture Accounts on such Determination Date, and (B) the amount of investment earnings (net of losses and investment expenses), if any, on investments of funds on deposit therein during such Collection Period;
(ii)(A) the Required Expense Amount for such Payment Date and (B) the excess, if any, of the Required Expense Reserve for such Payment Date over the Balance in the Expense Account after payment of all Operating Expenses on such Payment Date (the amount described in this clause (B), the “Required Expense Deposit”);
(iii)the Available Collections Amount for such Payment Date, net of the amounts described in Section 4.02(c)(i) if an Event of Default has occurred and is continuing on such Payment Date;
(iv)the Stated Interest Shortfall, if any, for each Series, the amounts, if any, required to be transferred from the Liquidity Reserve Account to the Collections Account in respect thereof pursuant to Section 3.04, and the Net Stated Interest Shortfall, if any, for each Series;
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(v)all other amounts required to be reported in the Monthly Report and not included on the Payment Date Schedule to be provided pursuant to Section 3.10(e); and
(vi)any other information, determinations and calculations reasonably required in order to give effect to the terms of this Master Indenture and the Operative Agreements, including the preparation of the Monthly Report and Annual Report;
provided that, if the Administrator has not received all of the Relevant Information for such Payment Date, the Administrator shall make reasonable assumptions for purposes of the calculations contemplated by this Section 3.10.
(b)Calculation of Interest Amounts, etc. Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer shall cause the Administrator or the Servicer to make the following calculations or determinations with respect to interest amounts due for each Series or Class on such Payment Date:
(i)the Stated Interest Amount for the Notes, separated by Series and Class; and
(ii)the Additional Interest Amount, if any, separated by Series and Class.
(c)Calculation of Principal Payments and Distributions to the Issuer. Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer shall cause the Administrator or the Servicer to calculate or determine the following with respect to principal payments on the Notes due on such Payment Date and the amounts distributable to the Issuer on such Payment Date:
(i)the Outstanding Principal Balance of each Series of Notes (and Classes within such Series) on such Payment Date immediately prior to any principal payment on such date;
(ii)the amounts of the principal payments, if any, to be made in respect of each Series of Securities (and Classes within such Series) on such Payment Date, including the Scheduled Principal Payment Amounts for each Series of Notes (and Classes within such Series) and any unpaid Scheduled Principal Payment Amounts for each Series of Notes (and Classes within such Series) for prior Payment Dates; and
(iii)the amounts, if any, distributable to the Issuer on such Payment Date.
(d)Calculation of Payment Date Shortfalls. Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer shall cause the Administrator or the Servicer to perform the calculations necessary to determine the following:
(i)the amount, if any, by which the Stated Interest Amounts due in respect of any Series of Equipment Notes on such Payment Date exceed the Available
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Collections Amount for such Payment Date remaining after payment in full of all amounts senior thereto in the Flow of Funds, but prior to giving effect to any transfer of funds to the Collections Account from the Liquidity Reserve Account or from the Liquidity Facilities pursuant to Section 3.04 (the “Stated Interest Shortfall”);
(ii)the Net Stated Interest Shortfall in respect of each Series;
(iii)the amount, if any, of payments to the Liquidity Facility Providers and the Hedge Providers that are contemplated to be paid pursuant to the Flow of Funds but will not be paid on such Payment Date out of the Available Collections Amount for such Payment Date;
(iv)the amount, if any, of the Scheduled Principal Payment Amount payable on each Series (separated by Class) that will not be paid on such Payment Date out of the Available Collections Amount for such Payment Date; and
(v)if such Payment Date is the Final Maturity Date for any Series of Notes or Class thereof, the amount, if any, by which the Outstanding Principal Balance of such Series of Notes or Class thereof exceeds the Available Collections Amount after payment in full of amounts senior thereto or pari passu therewith in the Flow of Funds (such remainder, a “Final Principal Payment Shortfall”).
(e)Application of the Available Collections Amount. Not later than 1:00 p.m., New York City time, three Business Days prior to each Payment Date, the Issuer will cause the Administrator (after consultation with the Servicer), to prepare and deliver to the Indenture Trustee the Payment Date Schedule setting forth the payments, transfers, deposits and distributions to be made in respect of the Liquidity Reserve Account pursuant to Section 3.04 or in respect of Net Disposition Proceeds pursuant to Section 3.14(a), and in respect of the Available Collections Amount (after giving effect to such payments, transfers, deposits and distributions, if any) pursuant to the Flow of Funds, and setting forth separately, in the case of payments in respect of each Series of Securities, the amount to be applied on such Payment Date to pay all interest, principal, premium and any other distributions, if any, on such Series of Securities (and each Class thereof), all in accordance with Section 3.11. On each Payment Date, the Indenture Trustee, based solely on the Payment Date Schedule provided by the Administrator for such Payment Date, will make payments, transfers, deposits and distributions in an aggregate amount equal to the Available Collections Amount in accordance with the order of priority set forth in the Flow of Funds. If the Indenture Trustee shall not have received such Payment Date Schedule by the last Business Day preceding any Payment Date, such Payment Date shall be deferred until the next Business Day after such Payment Date Schedule is received by the Indenture Trustee.
(f)Relevant Information. The Issuer shall cause each Service Provider having Relevant Information in its possession to make such Relevant Information available to the Administrator and the Servicer not later than 1:00 p.m., New York City time, at least five Business Days prior to each Payment Date.


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Section 3.11.Payment Date Distributions from the Collections Account.
(a)Regular Distributions. On each Payment Date, so long as no Event of Default has occurred and is continuing, after the withdrawals and transfers provided for in Section 3.02 and 3.04 have been made, the Available Collections Amount (excluding any Net Disposition Proceeds on deposit in the Collections Account as of the Determination Date, which amounts shall be applied pursuant to clause (c) below after giving effect to the application of all amounts pursuant to this clause (a)) will be applied in the following order of priority:
(1)pro rata, to the payment or reimbursement of the portion of the Required Expense Amount described in clause (i) of the definition thereof to the applicable payees, and to the Expense Account in an amount equal to the Required Expense Deposit;
(2)to the payment to the Service Providers of the Service Provider Fees, plus applicable Taxes (to the extent such Taxes are payable by the Issuer to the Service Providers under the Service Provider Agreements), pro rata based on the amount due;
(3)to the repayment of any outstanding Servicer Advances (together with interest thereon as provided in the Servicing Agreement);
(4)pro rata, based on the amount due, (i) to the applicable Series Accounts for the Class A Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class A Equipment Notes of each Series, other than current or past due Additional Interest, (ii) to the Liquidity Facility Providers, all interest owed to the Liquidity Facility Providers in connection with draws under the related Liquidity Facilities for such Liquidity Facility Providers, (iii) to each Hedge Provider, all Senior Hedge Payments and (iv) to the Liquidity Facility Providers, all indemnification obligations payable to the Liquidity Facility Providers in connection with the related Liquidity Facilities; provided that any amounts drawn from the Liquidity Reserve Account or any Liquidity Facility will be applied only to the items described in clauses (i) and (iii) hereof (other than payments of any Hedge Termination Value or Hedge Partial Termination Value);
(5)pro rata based on the amount due, to the applicable Series Accounts for the Class B Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class B Equipment Notes of each Series, other than current or past due Additional Interest;
(6)to first, reimburse or repay pro rata each related Liquidity Facility Provider the principal amounts drawn under any Liquidity Facility and not previously reimbursed, and second, deposit in the Liquidity Reserve Account an amount equal to the positive difference (if any)
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between (x) the Liquidity Reserve Target Amount (after giving effect to the payments in clause first) and (y) the balance in the Liquidity Reserve Account;
(7)to the applicable Series Accounts for the Class A Equipment Notes, the Scheduled Principal Payment Amounts on all Series of Outstanding Class A Equipment Notes entitled thereto, first, to the Outstanding Class A Equipment Notes of the earliest issued Series and then to subsequent Series in chronological order of issuance, and second, within each Series, to each Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class;
(8)to pay or reimburse the Servicer for costs of Optional Modifications made or incurred on behalf of the Issuer (as determined by the Administrator and delivered in writing to the Indenture Trustee) to the extent not paid as Ordinary Course Expenses or from any other available source of revenues of the Issuer (the “Servicer Optional Modification Expense”), up to an aggregate amount with respect to all such payments not to exceed two percent (2.00%) of the Initial Appraised Value of all Portfolio Railcars (such amount, the “Servicer Optional Modification Cap”);
(9)to the applicable Series Accounts for the Class A Equipment Notes, for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class A Equipment Notes, first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (9);
(10)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class A Equipment Notes, for the payment of an amount equal to the Outstanding Principal Balance of the Class A Equipment Notes (after the payments in clause (7) above), pro rata according to the Outstanding Principal Balance of all Class A Equipment Notes;
(11)to the applicable Series Accounts for the Class B Equipment Notes, the Scheduled Principal Payment Amounts on all Series of Outstanding Class B Equipment Notes entitled thereto, first, to the Outstanding Class B Equipment Notes of the earliest issued Series and then to subsequent Series in chronological order of issuance, and second, within each Series, to each Class thereof sequentially in ascending
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numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class;
(12)to the applicable Series Accounts for the Class B Equipment Notes, for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class B Equipment Notes, first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (12);
(13)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class B Equipment Notes, for the payment of an amount equal to the Outstanding Principal Balance of the Class B Equipment Notes (after the payments in clause (11) above), pro rata according to the Outstanding Principal Balance of all Class B Equipment Notes;
(14)pro rata based on the amount due, to the applicable Series Accounts for the Class C Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class C Equipment Notes of each Series, other than current or past due Additional Interest;
(15)to the applicable Series Accounts for the Class C Equipment Notes, the Scheduled Principal Payment Amounts on all Series of Outstanding Class C Equipment Notes entitled thereto, first, to the Outstanding Class C Equipment Notes of the earliest issued Series and then to subsequent Series in chronological order of issuance, and second, within each Series, to each Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class;
(16)to the applicable Series Accounts for the Class C Equipment Notes, for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class C Equipment Notes, first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (16);
(17)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class C
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Equipment Notes, for the payment of an amount equal to the Outstanding Principal Balance of the Class C Equipment Notes (after the payments in clause (15) above), pro rata according to the Outstanding Principal Balance of all Class C Equipment Notes;
(18)to the applicable Series Accounts for the Class A Equipment Notes, the payment of all current and past due Additional Interest due on the Class A Equipment Notes, pro rata based on the amount due;
(19)to the applicable Series Accounts for the Class B Equipment Notes, the payment of all current and past due Additional Interest due on the Class B Equipment Notes, pro rata based on the amount due;
(20)to the applicable Series Accounts for the Class C Equipment Notes, the payment of all current and past due Additional Interest due on the Class C Equipment Notes, pro rata based on the amount due;
(21)to the applicable Series Accounts for the Class A Equipment Notes, the payment of any Redemption Premium owing to the Holders of the Class A Equipment Notes, pro rata based on the amount due;
(22)to the applicable Series Accounts for the Class B Equipment Notes, the payment of any Redemption Premium owing to the Holders of the Class B Equipment Notes, pro rata based on the amount due;
(23)to the applicable Series Accounts for the Class C Equipment Notes, the payment of any Redemption Premium owing to the Holders of the Class C Equipment Notes, pro rata based on the amount due;
(24)to the Hedge Providers for the payment of Subordinated Hedge Payments, pro rata based on the amount due;
(25)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class (i) first, all current and past due interest on such Series of Subordinated Notes, other than current or past due Additional Interest, pro rata based on the amount due, and (ii) second, if the Subordinated Note Amortization Date has occurred, to the repayment of the Outstanding Principal Amounts of such Series of Subordinated Notes, pro rata based on the amount due;
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(26)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class, to the payment of all current and past due Additional Interest due on such Series of Subordinated Notes, pro rata based on the amount due;
(27)pro rata based on the amount due (i) to the Initial Purchasers of the Initial Notes, for the payment of any indemnities of the Issuer payable to such Initial Purchasers of the Initial Notes, and (ii) to the Initial Purchasers of any Additional Series, for the payment of any indemnities of the Issuer payable to such Initial Purchasers;
(28)pari passu and pro rata (as determined by the Administrator and delivered in writing to the Indenture Trustee) to pay or reimburse the Issuer (or the Servicer on its behalf) for costs of Optional Modifications to the extent not paid pursuant to clause (8) or any other available source of revenues of the Issuer;
(29)to pay all other monetary obligations of the Issuer under the Operative Agreements; and
(30)as determined by the Administrator and delivered in writing to the Indenture Trustee, to the Certificate Account for distribution to the Holders of the Class E Certificates, or as the Holders of the Class E Certificates may otherwise direct.
(b)Event of Default Distributions. On each Payment Date, if an Event of Default has occurred and is then continuing, the Available Collections Amount will be applied in the following order of priority, after payment of the amounts described in Section 4.02(c)(i):
(1)pro rata, to the payment or reimbursement of the portion of the Required Expense Amount described in clause (i) of the definition thereof to the applicable payees, and to the Expense Account in an amount equal to the Required Expense Deposit;
(2)to the payment to the Service Providers of the Service Provider Fees, plus applicable Taxes (to the extent such Taxes are payable by the Issuer to the Service Providers under the Service Provider Agreements), pro rata based on the amount due;
(3)to the repayment of any outstanding Servicer Advances (together with interest thereon as provided in the Servicing Agreement);
(4)pro rata based on the amount due, (i) to the applicable Series Accounts for the Class A Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class A
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Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full; (ii) to the Liquidity Facility Providers, all interest owed to Liquidity Facility Providers in connection with draws under the related Liquidity Facilities for the Liquidity Facility Providers, together with all principal amounts drawn under any Liquidity Facility and not previously reimbursed, (iii) to the Hedge Providers, all unpaid Senior Hedge Payments and (iv) to the Liquidity Facility Providers, all indemnification obligations payable to the Liquidity Facility Providers in connection with the related Liquidity Facilities; provided that any amounts drawn from the Liquidity Reserve Account or any Liquidity Facility will be applied only to the items described in clauses (i) and (iii) hereof (other than payments of any Hedge Termination Value or Hedge Partial Termination Value);
(5)pro rata based on the Outstanding Principal Balances of the Outstanding Class A Equipment Notes of each Series, to the applicable Series Accounts for the Class A Equipment Notes, the Outstanding Principal Balances of the Class A Equipment Notes until paid in full;
(6)to pay or reimburse the Servicer for Servicer Optional Modification Expenses, up to an aggregate amount with respect to all such payments not to exceed the Servicer Optional Modification Cap;
(7)pro rata based on the amount due, to the applicable Series Accounts, all current and past due interest on the Outstanding Class B Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
(8)pro rata based on the Outstanding Principal Balances of the Outstanding Class B Equipment Notes of each Series, to the applicable Series Accounts, the Outstanding Principal Balances of the Class B Equipment Notes until paid in full;
(9)to the applicable Series Accounts for the Class A Equipment Notes, the payment of all current and past due Additional Interest due on the Class A Equipment Notes, pro rata based on the amount due;
(10)to the applicable Series Accounts for the Class B Equipment Notes, the payment of all current and past due Additional Interest due on the Class B Equipment Notes, pro rata based on the amount due;
(11)pro rata based on the amount due, to the applicable Series Accounts, the payment of any Redemption Premium owing to the Holders of the Class A Equipment Notes of the applicable Series;
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(12)pro rata based on the amount due, to the applicable Series Accounts, the payment of any Redemption Premium owing to the Holders of the Class B Equipment Notes of the applicable Series;
(13)to the Hedge Providers, the amount of any Subordinated Hedge Payments, pro rata based on the amount due;
(14)pro rata based on the amount due, to the applicable Series Accounts, all current and past due interest on the Outstanding Class C Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
(15)pro rata based on the Outstanding Principal Balances of the Outstanding Class C Equipment Notes of each Series, to the applicable Series Accounts, the Outstanding Principal Balances of the Class C Equipment Notes until paid in full;
(16)to the applicable Series Accounts for the Class C Equipment Notes, the payment of all current and past due Additional Interest due on the Class C Equipment Notes, pro rata based on the amount due;
(17)pro rata based on the amount due, to the applicable Series Accounts, the payment of any Redemption Premium owing to the Holders of the Class C Equipment Notes of the applicable Series;
(18)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class (i) first, all current and past due interest on such Series of Subordinated Notes, other than current or past due Additional Interest, pro rata based on the amount due, and (ii) second, to the repayment of the Outstanding Principal Amounts of such Series of Subordinated Notes, pro rata based on the amount due;
(19)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class, to the payment of all current and past due Additional Interest due on such Series of Subordinated Notes;
(20)pro rata based on the amount due (A) to the Initial Purchasers of the Initial Notes, for the payment of any indemnities of the Issuer payable to the Initial Purchasers of the Initial Notes, and (B) to the
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Initial Purchasers of any Additional Series, for the payment of any indemnities of the Issuer payable to such Initial Purchasers;
(21)pari passu and pro rata (as determined by the Administrator and delivered in writing to the Indenture Trustee) to pay or reimburse the Issuer (or the Servicer on its behalf) for costs of Optional Modifications to the extent not paid pursuant to clause (6) above or from any other available source of revenues of the Issuer;
(22)to pay all other monetary obligations of the Issuer under the Operative Agreements; and
(23)as determined by the Administrator and delivered in writing to the Indenture Trustee, to the Certificate Account for distribution to the Holders of the Class E Certificates, or as the Holders of the Class E Certificates may otherwise direct.
(c)Railcar Disposition Distributions. On each Payment Date, so long as no Event of Default has occurred and is continuing, to the extent that Net Disposition Proceeds have been transferred to the Collections Account during the related Collection Period and without limiting in any way the application of the second to last sentence of Section 3.12, the balance in the Collections Account allocable to such Railcar Dispositions will be applied in accordance with the order of priority set forth below:
(1)pro rata based on the amount due, to the payment or reimbursement of the portion of the Required Expense Amount described in clause (i) of the definition thereof to the applicable payees, and to the Expense Account in an amount equal to the Required Expense Deposit;
(2)pro rata (A) to deposit in the Liquidity Reserve Account an amount equal to the positive difference (if any) between (x) the Liquidity Reserve Target Amount and (y) the sum of (i) the balance in the Liquidity Reserve Account and (ii) the then aggregate Liquidity Facility Available Amounts; and (B) to the Liquidity Facility Providers, to reimburse or repay pro rata the Liquidity Facility Providers in an amount equal to all principal and other amounts due to the Liquidity Facility Providers;
(3)pro rata based on the amount due, to (i) the applicable Series Accounts for the Class A Equipment Notes, Class B Equipment Notes and Class C Equipment Notes, an amount equal to 105% of the Allocable Note Balances of the Portfolio Railcars relating to the Railcar Disposition from which the Net Disposition Proceeds were obtained (provided that such amounts shall not exceed the Outstanding Principal Balance of such Class A Equipment Notes, Class B Equipment Notes and Class C Equipment Notes), applied sequentially first, to the Class A Equipment Notes of the earliest issued Series and then to subsequent Series of Class A Equipment Notes in chronological order of issuance, and within each Series by ascending numeric order among any
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numerical sub-classes of the Class A Equipment Notes in the same Series, but pro rata among any alphabetical sub-classes of the same Class until paid in full, second, to the Class B Equipment Notes of the earliest issued Series and then to subsequent Series of Class B Equipment Notes in chronological order of issuance, and within each Series by ascending numeric order among any numerical sub-classes of the Class B Equipment Notes in the same Series but pro rata among any alphabetical sub-classes of the same numerical Class until paid in full, and third, to the Class C Equipment Notes of the earliest issued Series and then to subsequent Series of Class C Equipment Notes in chronological order of issuance, and within each Series by ascending numeric order among any numerical sub-classes of the Class C Equipment Notes in the same Series but pro rata among any alphabetical sub-classes of the same numerical Class until paid in full and (ii) each Hedge Provider, all Senior Hedge Payments due in respect of Hedge Agreements, including any Hedge Partial Termination Value payable by the Issuer in connection with the partial redemption described in subsection (i) above;
(4)to pay or reimburse the Servicer for Servicer Optional Modification Expenses, up to an aggregate amount with respect to all such payments not to exceed the Servicer Optional Modification Cap;
(5)to the applicable Series Accounts for the Class A Equipment Notes, the payment of any Redemption Premium relating to the Railcar Disposition owing to the Holders of the Class A Equipment Notes, pro rata based on the amount due;
(6)to the applicable Series Accounts for the Class A Equipment Notes for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class A Equipment Notes (after the payments in first clause (3) above), first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (6);
(7)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class A Equipment Notes for the payment of an amount equal to the then Outstanding Principal Balance of the Class A Equipment Notes (after the payments in clauses (3) and (6) above), pro rata according to the Outstanding Principal Balance of the Class A Equipment Notes;
(8)to the applicable Series Accounts for the Class B Equipment Notes, for payment of any Redemption Premium relating to the
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Railcar Disposition owing to the Holders of the Class B Equipment Notes, pro rata based on the amount due;
(9)to the applicable Series Accounts for the Class B Equipment Notes for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class B Equipment Notes (after the payments in first clause (3) above), first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (9);
(10)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class B Equipment Notes for the payment of an amount equal to the then Outstanding Principal Balance of the Class B Equipment Notes (after the payments in clauses (3) and (9) above), pro rata according to the Outstanding Principal Balance of the Class B Equipment Notes;
(11)to the Hedge Providers, the amount of any Subordinated Hedge Payments, pro rata based on the amount due;
(12)pro rata based on the amount due, to the applicable Series Accounts, all current and past due interest on the Outstanding Class C Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
(13)to the applicable Series Accounts for the Class C Equipment Notes, for payment of any Redemption Premium relating to the Railcar Disposition owing to the Holders of the Class C Equipment Notes, pro rata based on the amount due;
(14)to the applicable Series Accounts for the Class C Equipment Notes for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class C Equipment Notes (after the payments in clause (3) above), first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (14);
(15)to the applicable Series Accounts for the Class A Equipment Notes, the payment of all current and past due Additional
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Interest due on the Class A Equipment Notes, pro rata based on the amount due;
(16)to the applicable Series Accounts for the Class B Equipment Notes, the payment of all current and past due Additional Interest due on the Class B Equipment Notes, pro rata based on the amount due;
(17)to the applicable Series Accounts for the Class C Equipment Notes, the payment of all current and past due Additional Interest due on the Class C Equipment Notes, pro rata based on the amount due;
(18)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class C Equipment Notes for the payment of an amount equal to the then Outstanding Principal Balance of the Class C Equipment Notes (after the payments in clauses (3) and (14) above), pro rata according to the Outstanding Principal Balance of the Class C Equipment Notes;
(19)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class (a) first all current and past due interest on such Series of Subordinated Notes, other than current or past due Additional Interest, pro rata, based on the amount due, (b) second, an amount equal to 105% of the Allocable Subordinated Note Balance of the Portfolio Railcars relating to the Railcar Disposition from which the Net Disposition Proceeds were obtained (provided that such amounts shall not exceed the Outstanding Principal Balance of such Series of Subordinated Notes) and (c) third, if the Subordinated Note Amortization Date has occurred, to the repayment of the Outstanding Principal Amounts of such Series of Subordinated Notes, pro rata, based on the amount due;
(20)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Holders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class, to the payment of all current and past due Additional Interest due on such Series of Subordinated Notes, pro rata, based on the amount due;
(21)pro rata, based on the amount due, (A) to the Initial Purchasers of the Initial Notes, for the payment of any indemnities of the Issuer payable to the Initial Purchasers of the Initial Notes, and (B) to the
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Initial Purchasers of any Additional Series, for the payment of any indemnities of the Issuer payable to such Initial Purchasers;
(22)pari passu and pro rata (as determined by the Administrator and delivered in writing to the Indenture Trustee) to pay or reimburse the Issuer (or the Servicer on its behalf) for costs of Optional Modifications to the extent not paid pursuant to clause (4) above or from any other available source of revenues of the Issuer;
(23)to pay all other monetary obligations of the Issuer under the Operative Agreements; and
(24)as determined by the Administrator and delivered in writing to the Indenture Trustee, to the Certificate Account for distribution to the Holders of the Class E Certificates, or as the Holders of the Class E Certificates may otherwise direct.
For the avoidance of doubt, if an Event of Default has occurred and is continuing, the Net Disposition Proceeds will be included in the Available Collections Amount and paid pursuant to Section 3.11(b).
(d)Optional Redemption. On any Redemption Date on which any Series of Equipment Notes or Class thereof is to be the subject of an Optional Redemption, the Administrator shall direct the Indenture Trustee in writing to distribute the amounts in the applicable Redemption/Defeasance Account to (x) the Holders of such Series or Class, as applicable, as provided in the relevant Redemption Notice and (y) to the extent the Redemption Price includes amounts owed to Hedge Providers, to such Hedge Providers.
(e)Payments by Wire Transfer. All payments to be made pursuant to this Section 3.11 to Persons other than Holders shall be made through a wire transfer of funds to the applicable Person. All payments to Holders shall be governed by Section 2.05.
Section 3.12.Optional Redemptions. If permitted under the related Series Supplement and if no Event of Default then exists, the Issuer will have the option to prepay, in whole or part, the Outstanding Principal Balance of any Class of the applicable Series of Equipment Notes in an Optional Redemption; provided that:
(a)any Optional Redemption in whole of the Class B Equipment Notes within a Series shall be subject to an Optional Redemption in whole of the Class A Equipment Notes within such Series, and any Optional Redemption in whole of the Class C Equipment Notes within a Series shall be subject to an Optional Redemption in whole of the Class A Equipment Notes and Class B Equipment Notes within such Series;
(b)subject to subsection (c) below, (i) an Optional Redemption in part of the Class B Equipment Notes within a Series shall be subject to an Optional Redemption in part of the Class A Equipment Notes within such Series in the same proportion as the Optional Redemption in part of the Class B Equipment Notes, in each case, based on the ratio of (x) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series subject to such Optional Redemption to (y) the Outstanding Principal Balance of the
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Equipment Notes in such Class within such Series and (ii) an Optional Redemption in part of the Class C Equipment Notes within a Series shall be subject to an Optional Redemption in part of the Class A Equipment Notes and Class B Equipment Notes within such Series in the same proportion as the Optional Redemption in part of the Class C Equipment Notes, in each case, based on the ratio of (x) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series subject to such Optional Redemption to (y) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series;
(c)if an Early Amortization Event is then continuing, the Issuer (x) shall not be permitted to prepay any Class C Equipment Notes until the Outstanding Principal Balance of all Class A Equipment Notes and Class B Equipment Notes shall have been paid in full, (y) shall not be permitted to prepay any Class B Equipment Notes until the Outstanding Principal Balance of all Class A Equipment Notes shall have been paid in full and (z) shall not be permitted to prepay any Class A Equipment Notes of any Series until the Outstanding Principal Balance of all Class A Equipment Notes in all earlier issued Series shall have been paid in full; and
(d)if an Event of Default then exists, the Issuer will have the option to prepay, in whole or in part, the Outstanding Principal Balance of all (but not less than all) Series of Equipment Notes then Outstanding. It is understood that Optional Redemptions do not effect a release of Collateral from the Security Interest of this Master Indenture, unless the subject of such Optional Redemption is a Series of Notes and it results in the repayment in full of all Secured Obligations relating to the Series of Notes being redeemed. Any Optional Redemption in part, if (in the case of Equipment Notes) permitted in accordance with the applicable Series Supplement, will be achieved by a pro rata prepayment of the Outstanding Principal Balance of the applicable Notes.
Section 3.13.Procedure for Redemptions.
(a)Method of Redemption. In the case of any Optional Redemption, the Issuer will deposit, or will cause to be deposited, in the Redemption/Defeasance Account an amount equal to the Redemption Price of the Notes or portion thereof to be redeemed. Once a Redemption Notice in respect of an Optional Redemption is published, the applicable Outstanding Principal Balance of each Series of Notes (or Class thereof) to which such Redemption Notice applies will become due and payable on the Redemption Date stated in such Redemption Notice at its Redemption Price. In the case of a redemption in whole of a Series, all Notes of such Series that are redeemed will be surrendered to the Indenture Trustee for cancellation and will be cancelled by the Indenture Trustee, and accordingly may not be reissued or resold.
(b)Deposit of Redemption Amount. On or before any Redemption Date in respect of an Optional Redemption under Section 3.12, the Issuer shall, to the extent an amount equal to the Redemption Price of the Notes to be redeemed and any transaction expenses as of the Redemption Date is not then held by the Issuer or on deposit in the Redemption/Defeasance Account, deposit or cause to be deposited such amount in the Redemption/Defeasance Account.
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(c)Notes Payable on Redemption Date. After notice has been given under Section 3.13(d) as to the Redemption Date in respect of any Optional Redemption, the Outstanding Principal Balance of the Notes to be redeemed on such Redemption Date in the amount identified in such notice shall become due and payable on the Redemption Date at the Redemption Price (net of any portion thereof payable to the applicable Hedge Provider) at the Corporate Trust Office of the Indenture Trustee, and from and after such Redemption Date (unless there shall be a default in the payment of the applicable amount to be redeemed) such principal amount shall cease to bear interest. Upon surrender of any Notes for redemption in accordance with such notice, the Redemption Price of such Notes shall be paid in accordance with Section 3.11(d). If any Notes to be redeemed shall not be so paid, or shall only be paid in part in accordance with the terms of such notice, the remaining Outstanding Principal Balance of such Notes shall continue to bear interest from the Redemption Date until it is paid at the interest rate applicable to such Notes.
(d)Redemption Notice. In respect of any Optional Redemption of any Series or Class of Notes to be made out of amounts available for such purposes, the Indenture Trustee will give a Redemption Notice to each Holder of the Notes to be redeemed and to each Hedge Provider and Liquidity Facility Provider, provided that the Indenture Trustee shall have been notified in writing by the Issuer or the Administrator in advance of giving any such Redemption Notice whether funds are or will, on the applicable Redemption Date, be available for such Optional Redemption. Such Redemption Notice must be given at least ten (10) days but not more than sixty (60) days before such Redemption Date. Each Redemption Notice must state (i) the applicable Redemption Date, (ii) the Notes being redeemed (which may be some or all of a Series or Class, as permitted by Section 3.12 and any applicable Series Supplement) and, if applicable, the portion of the Outstanding Principal Balance of such Notes that is to be redeemed (and in respect thereof, the Redemption Price (less an amount equal to any portion thereof payable to the applicable Hedge Provider) will be distributed to the Holders of the applicable Notes pro rata in the same manner as partial repayments of principal on the Notes made pursuant to the Flow of Funds and the Indenture Trustee’s notice shall contain information to that effect), (iii) the Indenture Trustee’s arrangements for making payments due on the Redemption Date, (iv) the Redemption Price of the Notes to be redeemed, including a description of the portion thereof, if applicable, that is payable to the applicable Hedge Provider, (v) for an Optional Redemption of an entire Class or Series of Notes or of all Outstanding Notes, that the Notes to be redeemed must be surrendered (which action may be taken by any Holder of the Notes or its authorized agent) to the Indenture Trustee to collect the Redemption Price on such Notes (less an amount equal to any portion thereof payable to the applicable Hedge Provider), and (vi) that, unless the Issuer defaults in the payment of the Redemption Price, if any, interest on the portion of the Outstanding Principal Balance of the Notes called for redemption will cease to accrue on and after the Redemption Date.
(e)Notice to Hedge Providers and Rating Agencies. If so provided in a Series Supplement, the Issuer shall give each applicable Hedge Provider and each applicable Rating Agency prior written notice of a redemption of all or a portion of the Notes pursuant to Section 3.13 and 3.14.



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Section 3.14.Adjustments in Targeted Principal Balances.
(a)Railcar Dispositions. If Net Disposition Proceeds have been transferred to the Collections Account, then (i) on the next following Payment Date, such Net Disposition Proceeds shall be applied in accordance with Section 3.11(c), unless an Event of Default has occurred and is continuing, in which case, such Net Disposition Proceeds shall be applied in accordance with Section 3.11(b), and (ii) on such Payment Date, the Scheduled Targeted Principal Balance of the Equipment Notes being partially redeemed on such Payment Date will be reduced to, for all subsequent Payment Dates, an amount equal to the result of (x) the Scheduled Targeted Principal Balances of such Notes for each such Payment Date, minus (y) the product of (A) the Redemption Fraction for such Equipment Notes as of each such Payment Date and (B) the Scheduled Targeted Principal Balance of such Equipment Notes for each such Payment Date. If Net Disposition Proceeds are applied to early repayment of Equipment Notes pursuant to this paragraph, then the Issuer shall also be required to pay, in connection with and on the date of the resulting prepayment, Redemption Premium on such prepaid principal amount if at such time an Optional Redemption of the applicable Equipment Notes would also require the payment of a Redemption Premium (with such Redemption Premium, if owing, to be determined in the same manner); provided, however, that notwithstanding anything herein to the contrary, no Redemption Premium will be due (i) as a result of any Permitted Discretionary Sales which in the aggregate are less than 25% of the sum of (x) the Adjusted Value of the Portfolio Railcars owned by the Issuer on the Initial Closing Date calculated as of the Initial Closing Date and (y) the Adjusted Value of the Portfolio Railcars acquired by the Issuer after the Initial Closing Date (if any) calculated as of the relevant Delivery Date or (ii) as a result of any Involuntary Railcar Dispositions, Scrap Value Dispositions or Purchase Option Dispositions, to the extent provided for in the related Series Supplement.
(b)Optional Redemption. In connection with any Optional Redemption in part, the Scheduled Targeted Principal Balance for the remaining Equipment Notes of such Series or Class shall be reduced on the Redemption Date and each subsequent Payment Date to an amount equal to the result of (x) the Scheduled Targeted Principal Balance of such Notes for each such Payment Date minus (y) the product of (A) the Redemption Fraction and (B) the Scheduled Targeted Principal Balance that existed for the Redemption Date or such subsequent Payment Date, as the case may be, immediately prior to such Optional Redemption. No Optional Redemption in part shall occur with respect to a Series or Class unless the Series Supplement for such Series or Class provides for an Optional Redemption in part with respect to such Series or Class, as applicable.
(c)Redemption Fraction. “Redemption Fraction” means, for any Equipment Notes subject to a partial redemption, a fraction, the numerator of which is the principal amount of such Equipment Notes that is being redeemed, and the denominator of which is the Outstanding Principal Balance of such Equipment Notes immediately prior to such partial redemption.



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Section 3.15.Liquidity Facilities. On the Initial Closing Date, the Issuer shall establish the Initial Liquidity Facility and thereafter, the Issuer may enter, from time to time, into one or more additional Liquidity Facility Agreements (each, an “Additional Liquidity Facility”) by entering into transaction documentation (the “Liquidity Facility Documents”) with one or more Additional Liquidity Facility Providers. The following conditions must be satisfied before the Issuer may establish an Additional Liquidity Facility:
(a)the Issuer having obtained Rating Agency Confirmation with respect to all Outstanding Series;
(b)no Servicer Termination Event, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the establishment of the Liquidity Facility, and no Servicer Termination Event, Event of Default or Early Amortization Event would occur as a result of the transactions associated with the establishment of the Additional Liquidity Facility;
(c)the Liquidity Facility Documents related to such Additional Liquidity Facility shall contain provisions (i) addressing the limited recourse nature of the Issuer’s obligation to make payments to the Additional Liquidity Facility Provider, (ii) consistent with the bankruptcy remoteness of the Issuer, (iii) restricting the ability of the Additional Liquidity Facility Provider to assign, transfer or delegate its obligations under such Additional Liquidity Facility, (iv) ensuring that draws on such Additional Liquidity Facility are payable on demand and without the need for a default or event of default to have occurred, (v) setting forth timetables consistent with the Issuer having funds to make timely payments on the Equipment Notes, and (vi) allowing a reasonable period of time for the Issuer to renew or to replace such Additional Liquidity Facility as it nears its stated maturity, and to effect draws under such Additional Liquidity Facility in the event such Additional Liquidity Facility is not timely renewed or replaced, or the Additional Liquidity Facility Provider is downgraded or defaults in its obligations after any applicable grace period; and
(d)the Issuer shall have delivered to the Indenture Trustee, on or prior to the establishment of such Additional Liquidity Facility:
(i)an original copy of the Liquidity Facility Documents for such Additional Liquidity Facility, duly executed by the Issuer and the Additional Liquidity Facility Provider, as applicable;
(ii)an officer’s certificate, duly executed by a Responsible Officer of the Issuer, meeting the requirements of Section 1.03 and stating that (A) the establishment of such Additional Liquidity Facility and the Liquidity Facility Documents are authorized and permitted by this Master Indenture and (B) all conditions precedent in this Master Indenture to (x) the establishment of such Additional Liquidity Facility and (y) the execution, delivery and performance of the Liquidity Facility Documents have been duly satisfied in accordance with the terms of this Master Indenture; and
(iii)one or more Opinions of Counsel, duly executed by counsel to the Issuer, meeting the requirements of Section 1.03 and containing a statement to the effect that (A) the establishment of such Additional Liquidity Facility and the Liquidity
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Facility Documents are authorized and permitted by this Master Indenture and (B) that all conditions precedent in this Master Indenture to (x) the establishment of such Liquidity Facility and (y) the execution, delivery and performance of such Liquidity Facility Documents have been duly satisfied in accordance with the terms of this Master Indenture.
Unless otherwise provided in a Series Supplement, each Liquidity Facility will be secured by the lien of this Master Indenture.
Section 3.16.Hedge Agreements.
(a)On each Closing Date on which the Issuer is issuing Floating Rate Notes, the Issuer must enter into one or more Hedge Agreements with one or more Eligible Hedge Providers and provide notice thereof to each Rating Agency. Each Hedge Agreement will be secured by the lien of this Master Indenture.
(b)For so long as any Series or Class of Floating Rate Notes remains Outstanding, the Issuer must maintain one or more Hedge Agreements with an aggregate notional balance (x) equal to or exceeding the minimum amount (if any) established in connection with the issuance of such Series or Class (the amount described in this clause (x) with respect to such Series or Class, the “Minimum Hedging Amount”) and (y) less than or equal to the maximum amount (if any) established in connection with the issuance of such Series or Class (the amount described in this clause (y) with respect to such Series or Class, the “Maximum Hedging Amount” and, collectively with the Minimum Hedging Amount, the “Hedging Requirement”) for such Series or Class, as applicable. Notwithstanding any other term or provision of this Master Indenture, but subject to Section 10.05, without the consent of Holders, the Issuer and the Indenture Trustee may amend this Master Indenture from time to time, with the prior written consent of all Hedge Providers and subject to receipt of Rating Agency Confirmation, to stipulate different percentages for the Minimum Hedging Amount or the Maximum Hedging Amount for such Series or Class, as applicable.
(c)If the Issuer is not able to meet the Minimum Hedging Amount, with respect to any Series or Class of Floating Rate Notes, it must, within ninety-five (95) days, use reasonable commercial efforts to enter into one or more Hedge Agreements, or, if the reason for such non-compliance is that a Hedge Agreement has terminated in its entirety, but Floating Rate Notes remain Outstanding, enter into one or more replacement Hedge Agreements at least sufficient to meet the Minimum Hedging Amount. If, at the expiration of such ninety-five (95) day period the Issuer has been unable to enter into additional or replacement Hedge Agreements in order to meet the Minimum Hedging Amount, the Requisite Majority (in its sole discretion) may direct the Indenture Trustee in writing on behalf of the Issuer to enter into, maintain or terminate (in whole or in part), one or more Hedge Agreements selected by the Requisite Majority (in its sole discretion) such that, after giving effect to such action, the Issuer will be in compliance with the Hedging Requirement. In the event the Requisite Majority determines to direct the Indenture Trustee to enter into, maintain or terminate (in whole or in part) a Hedge Agreement on the Issuer’s behalf, the Requisite Majority shall promptly send a copy of any such agreement to the Issuer.
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(d)If contemplated by a Hedge Agreement, the Issuer may enter into off-setting interest rate transactions in order to comply with the Hedging Requirement.
(e)Except as otherwise provided in this Master Indenture or the applicable Series Supplement, payments by the Issuer to Hedge Providers shall be made to such Hedge Providers on each Payment Date in accordance with the Flow of Funds and payments by Hedge Providers to the Issuer shall be made to the Collections Account.
(f)If a Hedge Provider is the “defaulting party” or “affected party” under a Hedge Agreement (a “Designated Hedge Agreement”) and, as a result, the Issuer is entitled to terminate such Designated Hedge Agreement, then, promptly after the Issuer becomes aware thereof, the Issuer (i) shall notify the Indenture Trustee and each Rating Agency and (ii) shall use commercially reasonable efforts to arrange for another Eligible Hedge Provider (a “Replacement Hedge Provider”) to enter into a replacement Hedge Agreement (a “Replacement Hedge Agreement”) with the Issuer to the extent that the Issuer would be required to enter into a Hedge Agreement under Section 3.16(c) if the Designated Hedge Agreement were not in effect (and subject to the timing, and the rights of the Requisite Majority, specified in Section 3.16(c)); provided that, subject to the terms of the Designated Hedge Agreement, the Issuer shall terminate such Designated Hedge Agreement at or prior to the time the Issuer enters into such Replacement Hedge Agreement. In connection with any termination in whole of a Hedge Agreement if the Issuer is entering, or will enter, into a Replacement Hedge Agreement, the Administrator, on behalf and at the direction of the Issuer, will establish with the Indenture Trustee a securities and cash account (a “Replacement and Termination Receipts Account”). The Issuer will deposit (or cause to be deposited) in the Replacement and Termination Receipts Account (x) any Hedge Termination Value paid by the Hedge Provider under the terminating Hedge Agreement to the Issuer, which Hedge Termination Value may be used by the Issuer to make payments required to a Replacement Hedge Provider in connection with a Replacement Hedge Agreement; and (y) any initial payment from a Replacement Hedge Provider that will be used to satisfy any obligation to pay a Hedge Termination Value to the Hedge Provider under the terminating Hedge Agreement. A Replacement and Termination Receipts Account will not be considered to be an Indenture Account for purposes of this Master Indenture and funds standing to its credit will not be considered to be Collateral for purposes of this Master Indenture. All amounts from time to time held in each Replacement and Termination Receipts Account shall be held (a) in the name of the Indenture Trustee, for the benefit of the Issuer, and (b) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture.
(g)If a Hedge Provider is required to post collateral under a Hedge Agreement (“Hedge Collateral”), the Administrator, on behalf and at the direction of the Issuer, will establish with the Indenture Trustee a securities and cash account (a “Hedge Collateral Account”). The Hedge Collateral will be deposited in the Hedge Collateral Account; provided that the Hedge Collateral will not be considered to be Collateral for purposes of this Master Indenture and the Hedge Collateral Account will not be considered to be an Indenture Account for purposes of this Master Indenture. All amounts from time to time held in each Hedge Collateral Account shall be held (a) in the name of the Indenture Trustee, for the benefit of the Issuer, and (b) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture. If a
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Hedge Agreement is terminated and a Hedge Collateral Account has been established with respect to the related Hedge Provider, then either: (x) if a Hedge Termination Value is determined to be payable by the Issuer to such Hedge Provider, then the Issuer shall direct the Indenture Trustee in writing to transfer to such Hedge Provider such Hedge Termination Value and, outside of the Flow of Funds, the relevant Hedge Collateral; or (y) if a Hedge Termination Value is determined to be payable by such Hedge Provider to the Issuer, and (A) if such Hedge Provider pays such Hedge Termination Value to the Issuer when due and payable, then the Issuer shall direct the Indenture Trustee in writing to immediately return the relevant Hedge Collateral to such Hedge Provider outside of the Flow of Funds, and (B) if such Hedge Provider does not pay such Hedge Termination Value to the Issuer when due and payable, then the Issuer shall direct the Indenture Trustee in writing to the extent necessary to liquidate such Hedge Collateral and to transfer such Hedge Collateral or the proceeds thereof to the Collections Account in an amount equal to the lesser of (I) such Hedge Termination Value and (II) the amounts standing to the credit of such Hedge Collateral Account (and such Hedge Provider’s obligation to pay such Hedge Termination Value shall be deemed to have been satisfied to the extent, but only to the extent, that such amounts are so transferred to the Collections Account), and the Issuer shall direct the Indenture Trustee in writing to pay any proceeds of such Hedge Collateral in excess of such Hedge Termination Value to such Hedge Provider outside of the Flow of Funds.
Section 3.17.Capital Contributions to Indenture Accounts and/or Portfolio. Nothing contained herein shall restrict the Member at any time from making capital contributions to the Issuer from time to time in the form of funds, Portfolio Railcars or other assets (each such contribution, a “Capital Contribution”). The Member may make such a Capital Contribution by depositing funds into the Indenture Accounts on behalf of the Issuer. For the avoidance of doubt, all Capital Contributions made by the Member after the Initial Closing Date shall be made on a voluntary basis and under no circumstances shall the Member be obligated to, or shall any Issuer or Holder compel the Member to, make any Capital Contribution to the Issuer. Any such Capital Contribution shall increase the Outstanding Stated Amount of the Class E Certificates in the manner set forth in the Certificate Purchase Agreement. On the first Determination Date after the completion of any Required Modification, if any Capital Contribution was made in connection with such Required Modification, the Administrator will allocate all amounts then remaining on deposit in the Expense Account in respect of such Required Modification to the Member.
ARTICLE 4

DEFAULT AND REMEDIES
Section 4.01.Events of Default. Each of the following events shall constitute an “Event of Default” hereunder, and each such 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)failure to pay interest on any Class A Equipment Notes or Class B Equipment Notes then Outstanding (other than Additional Interest, if any, applicable to such Class A Equipment Notes or Class B Equipment Notes), in each case when such amount becomes due and payable, and such default continues for a period of five (5) or more Business Days;
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(b)failure to make payment in full in cash of (i) the Outstanding Principal Balance of the Notes of any Series or Class, and (ii) accrued and unpaid interest on the Notes of any Series or Class (including, for the avoidance of doubt, interest on overdue interest), in each case, on the respective Final Maturity Date of such Series or Class;
(c)failure to pay any other amount (other than the amounts described in clauses (a) and (b)) in connection with the Notes or any amount (other than the amounts described in clause (b)), to the extent that, on any Payment Date, there are amounts available in the Collections Account or (with respect to the Equipment Notes) the Liquidity Reserve Account and Expense Account therefor, or, with respect to any amounts deposited in the Optional Reinvestment Account, the failure to apply such amounts or to transfer such amounts to the Collections Account, as the case may be, in accordance with Section 3.05, and in any such case such default continues for a period of five (5) or more Business Days after such Payment Date;
(d)failure by the Issuer or TILC (in the case of TILC, in respect of Operative Agreements to which either is a party other than any Operative Agreement that is described in clause (k), (m) or (n) below) to comply with any of the other covenants, obligations, conditions or provisions binding on it under this Master Indenture, any Series Supplement, any of the Securities or any other Operative Agreement to which it is a party (other than a payment default for which provision is made in clause (a), (b) or (c) of this Section 4.01, or a default addressed in clause (m) or (n) below), if any such failure continues for a period of thirty (30) days or more after written notice thereof has been given to the Issuer (provided that if such failure is capable of remedy and the Administrator has promptly provided the Indenture Trustee with a certificate stating that the Issuer or TILC, as applicable, has commenced, or will promptly commence, and diligently pursue all reasonable efforts to remedy such failure or breach, then such period of time shall be extended so long as the Issuer or TILC, as applicable, is diligently pursuing such remedy but in any event no longer than sixty (60) days after the date such written notice was given to the Issuer);
(e)any representation or warranty made by the Issuer under this Master Indenture and any Series Supplement or any other Operative Agreement to which it is a party or certificate delivered by it shall prove to be untrue or incorrect in any material respect when made, and such untruth or incorrectness, if curable, shall continue unremedied for a period of thirty (30) days or more after written notice thereof has been given to the Issuer (provided that if such untruth or incorrectness is capable of remedy and the Administrator has promptly provided the Indenture Trustee with a certificate stating that the Issuer has commenced, or will promptly commence, and diligently pursue all reasonable efforts to remedy such untruth or incorrectness, then such period of time shall be extended so long as the Issuer is diligently pursuing such remedy but in any event no longer than sixty (60) days after the date such written notice was given to the Issuer);
(f)a court having jurisdiction in respect of the Issuer enters a decree or order for (i) relief in respect of the Issuer under any Applicable Law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar law now or hereafter in effect; (ii) appointment of a receiver, liquidator, examiner, assignee, custodian, trustee, sequestrator or similar official of the Issuer; or (iii) the winding up or liquidation of the affairs of the Issuer and, in each case, such decree or order
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shall remain unstayed or such writ or other process shall not have been stayed or dismissed within sixty (60) days from entry thereof;
(g)the Issuer (i) commences a voluntary case under any Applicable Law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar law now or hereafter in effect, or consents to the entry of an order for relief in any involuntary case under any such law; (ii) consents to the appointment of or taking possession by a receiver, liquidator, examiner, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for all or substantially all of the property and assets of the Issuer; or (iii) effects any general assignment for the benefit of creditors, admits in writing its inability to pay its debts generally as they come due, voluntarily suspends payment of its obligations or becomes insolvent;
(h)a judgment or order for the payment of money in excess of $1,000,000 shall be rendered against the Issuer and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this Section 4.01(h) if and for so long as (x) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer (subject to customary deductible or co-payment) covering payment thereof and (y) such insurer, which shall be rated at least “A-” by A.M. Best Company or any similar successor entity (or a comparable rating by a nationally or internationally recognized rating group of comparable stature), has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order;
(i)the Issuer is required to register as an investment company under the Investment Company Act of 1940, as amended;
(j)the Issuer shall have asserted that this Master Indenture or any of the other Operative Agreements to which it is a party is not valid and binding on the parties thereto or any court, governmental authority or agency having jurisdiction over any of the parties to the Master Indenture or such other Operative Agreement shall find or rule that any material provision of any of such agreements is not valid or binding on the parties thereto;
(k)the Indenture Trustee, acting at the Direction of a Requisite Majority, shall have elected to remove the Servicer as a result of a Servicer Termination Event (or to remove the Administrator in accordance with the provisions of the Administrative Services Agreement providing for such rights of removal), and a replacement Servicer (or Administrator, as the case may be) shall not have assumed the duties of the Servicer (or Administrator, as the case may be) within one hundred eighty (180) days after the date of such election;
(l)written notice is provided by the Indenture Trustee, acting at the Direction of a Requisite Majority, that as of any Payment Date, the Outstanding Principal Balance of the Equipment Notes exceeds the Aggregate Adjusted Borrowing Value as of such date (and giving effect to repayments of principal to occur on such date);
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(m)TILC (or any successor thereto in its capacity as Servicer) shall have defaulted in any material respect in the performance of any of its obligations under the Marks Servicing Agreement or a default giving rise to a right to take remedial action shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, the Issuer shall have failed to exercise its rights thereunder in respect of such default for a period of thirty (30) days after receipt by the Issuer of written notice from the Indenture Trustee, demanding that such action be taken;
(n)an Insurance Manager Default shall have occurred and be continuing under the Insurance Agreement, and the Issuer shall have failed to exercise its rights under the Insurance Agreement in respect of such Insurance Manager Default for a period of thirty (30) days after receipt by the Issuer of written notice from the Indenture Trustee, demanding that such action be taken; and
(o)the Issuer shall have defaulted in any material respect in the performance of any of its covenants and agreements contained in Section 5.03(a) and such default shall continue unremedied for a period of thirty (30) days.
Section 4.02.Remedies Upon Event of Default.
(a)Upon the occurrence of an Event of Default of the type described in Section 4.01(f) or 4.01(g), the Outstanding Principal Balance of, and accrued interest on, all Series of Notes, together with all other amounts then due and owing to the Holders, shall become immediately due and payable without further action by any Person. If any other Event of Default occurs and is continuing, then the Indenture Trustee, acting at the Direction of the Requisite Majority, may declare the principal of and accrued interest on all Securities then Outstanding to be due and payable immediately, by written notice to the Issuer, the Servicer, the Hedge Providers, the Liquidity Facility Providers and the Administrator (a “Default Notice”), and upon any such declaration such principal and accrued interest shall become immediately due and payable. At any time after the Indenture Trustee has declared the Outstanding Principal Balance of the Notes to be due and payable and prior to the exercise of any other remedies pursuant to this Master Indenture, the Indenture Trustee (at the Direction of the Requisite Majority), by written notice to the Issuer, the Servicer and the Administrator may, except in the case of (i) a default in the deposit or distribution of any payment required to be made on the Securities, (ii) a payment default on the Securities or (iii) a default in respect of any covenant or provision of this Master Indenture that cannot by the terms hereof be modified or amended without the consent of each Holder affected thereby, rescind and annul such declaration and thereby annul its consequences, if (1) there has been paid to or deposited with the Indenture Trustee an amount sufficient to pay all overdue installments of interest on the Securities, and the principal of and premium, if any, on the Securities that would have become due otherwise than by such declaration of acceleration, (2) the rescission would not conflict with any judgment or decree, and (3) all other defaults and Events of Default, other than nonpayment of interest and principal on the Securities that have become due solely because of such acceleration, have been cured or waived.
(b)If an Event of Default shall occur and be continuing, the Indenture Trustee may, and shall, if given a Direction in writing by the Requisite Majority, do any or all of the
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following, provided that the Indenture Trustee shall dispose of the Portfolio Railcars only if it has received a Collateral Liquidation Notice:
(i)Institute any Proceedings, in its own name and as trustee of an express trust, for the collection of all amounts then due and payable on the Securities or under this Master Indenture or the related Series Supplement with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Collateral and any other assets of the Issuer any moneys adjudged due;
(ii)Subject to the quiet enjoyment rights of any Lessee of a Portfolio Railcar, conduct proceedings to sell, hold or lease the Collateral or any portion thereof or rights or interest therein, at one or more public or private transactions conducted in any manner permitted by law; provided that, the Indenture Trustee shall incur no liability as a result of the sale of the Collateral or any part thereof at any sale pursuant to this Section 4.02 conducted in a commercially reasonable manner, and the Issuer hereby waives any claims against the Indenture Trustee arising by reason of the fact that the price at which the Collateral may have been sold at such sale was less than the price that might have been obtained, even if the Indenture Trustee accepts the first offer received and does not offer the Collateral to more than one offeree;
(iii)Institute any Proceedings from time to time for the complete or partial foreclosure of the Encumbrance created by this Master Indenture with respect to the Collateral;
(iv)Institute such other appropriate Proceedings to protect and enforce any other rights, whether for the specific enforcement of any covenant or agreement in this Master Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy;
(v)Exercise any remedies of a secured party under the UCC or any Applicable Law and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee or the Holders under this Master Indenture and any Series Supplement;
(vi)Appoint a receiver or a manager over the Issuer or its assets; and
(vii)Exercise its rights under Section 3.03.
(c)If the Securities have been declared due and payable following an Event of Default, any money collected by the Indenture Trustee pursuant to this Master Indenture or otherwise, and any moneys that may then be held or thereafter received by the Indenture Trustee, shall be applied to the extent permitted by law in the following order, at the date or dates fixed by the Indenture Trustee;
(i)First, to the payment of all costs and expenses of collection incurred by the Indenture Trustee (including the reasonable fees and expenses of any counsel to the Indenture Trustee), and all other amounts due the Indenture Trustee under this Master Indenture and any Series Supplement; and
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(ii)Second, as set forth in the applicable provision of the Flow of Funds.
(d)The Indenture Trustee shall provide each Rating Agency with a copy of any Default Notice it receives or delivers pursuant to this Master Indenture. Within thirty (30) days after the occurrence of an Event of Default in respect of any Series of Notes, the Indenture Trustee shall give notice to the Holders of each Series of Securities of all uncured or unwaived Defaults actually known to a Responsible Officer of the Indenture Trustee on such date; provided that the Indenture Trustee may withhold such notice with respect to a Default (other than a payment default with respect to interest, principal or premium, if any) if it determines in good faith that withholding such notice is in the interest of the affected Holders.
(e)The Issuer hereby agrees that if an Event of Default shall have occurred and is continuing, the Indenture Trustee and any permitted delegee thereof are hereby irrevocably authorized and empowered to act as the attorney-in-fact for the Issuer with respect to the giving of any instructions or notices under this Master Indenture.
(f)If an Event of Default shall have occurred and is continuing, upon the written Direction of the Requisite Majority, the Indenture Trustee shall render an accounting of the current balance of each Indenture Account, and shall direct the Account Collateral Agent to render an accounting of the current balance of the Customer Payment Account.
(g)If an Event of Default shall have occurred and is continuing, and only in such event, upon the written Direction of the Requisite Majority, the Indenture Trustee shall be authorized to take any and all actions and to exercise any and all rights, remedies and options which it may have under this Master Indenture (which rights and remedies shall include the right to direct the withdrawal and disposition of amounts on deposit in the Indenture Accounts and the deposit thereof in the Collections Account, other than amounts on deposit in Series Accounts) and which the Requisite Majority directs it to take in writing under this Master Indenture, including realization and foreclosure on the Collateral.
(h)The Indenture Trustee may after the occurrence of and during the continuance of an Event of Default exercise any and all rights and remedies of the Issuer under or in connection with the Assigned Agreements (including, without limitation, the Servicing Agreement and any successor agreement therefor) and otherwise in respect of the Collateral, including, without limitation, any and all rights of the Issuer to demand or otherwise require payment of any amount under, or performance of any provision of, any Assigned Agreement. In addition, after the occurrence of and during the continuance of an Event of Default, upon the Direction of the Requisite Majority, the Indenture Trustee may exercise all rights of the “lessor” under Leases related to Portfolio Railcars, including, without limitation, the right to direct the applicable Lessees to make rental payments to such account as the Indenture Trustee shall specify, for application to the Collections Account and upon a Servicer Default, or a Servicer Replacement Event (as defined in the Servicing Agreement) in respect of which the Servicer has been replaced, and in each case upon the Direction of the Requisite Majority, the Indenture Trustee may exercise the right of the “lessor” to direct the applicable Lessees to make rental payments to such account as the Indenture Trustee shall specify, for application to the Collections Account.
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(i)If at any time within such period, the Issuer shall commence a voluntary winding-up or other voluntary case or other proceeding under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction seeking liquidation, reorganization or other relief with respect to the Issuer or the Issuer’s debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official of the Issuer or any substantial part of its property or if the Issuer shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against the Issuer, or making a general assignment for the benefit of any creditor of the Issuer under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction, the Indenture Trustee shall continue to retain such Security Interest until otherwise directed by the Requisite Majority and such Security Interest shall be deemed to have continued to have been held as security for the payment and discharge to the Indenture Trustee of all Secured Obligations.
Section 4.03.Limitation on Suits. No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Master Indenture or the Securities, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a)such Holder holds Securities of the Senior Class and has previously given written notice to the Indenture Trustee of a continuing Event of Default;
(b)the Holders of at least 25% of the aggregate Outstanding Principal Balance of the Senior Class give a written Direction to the Indenture Trustee to pursue a remedy hereunder;
(c)such Holder or Holders offer to the Indenture Trustee an indemnity reasonably satisfactory to the Indenture Trustee against any costs, expenses and liabilities to be incurred in complying with such request;
(d)the Indenture Trustee does not comply with such request within sixty (60) days after receipt of the request and the offer of indemnity; and
(e)during such sixty (60) day period, a Requisite Majority does not give the Indenture Trustee a Direction inconsistent with such request.
No one or more Holders may use this Master Indenture to affect, disturb or prejudice the rights of another Holder or to obtain or seek to obtain any preference or priority not otherwise created by this Master Indenture and the terms of the Securities over any other Holder or to enforce any right under this Master Indenture and a related Series Supplement, except in the manner herein provided.
Section 4.04.Waiver of Existing Defaults.
(a)The Indenture Trustee acting at the Direction of the Requisite Majority shall waive any existing Default or Event of Default hereunder and its consequences, except any waiver in respect of a covenant or provision hereof which, pursuant to Section 9.02(a),
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cannot be modified or amended without the consent of such Persons as are required to amend such covenant or provision in addition to the consent of the Requisite Majority.
(b)Upon any waiver made in accordance with Section 4.04(a), such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Master Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. Each such notice of waiver shall also be notified to each Rating Agency.
(c)Any written waiver of a Default or an Event of Default given by Holders of the Securities to the Indenture Trustee and the Issuer in accordance with the terms of this Master Indenture shall be binding upon the Indenture Trustee and the other parties hereto. Unless such writing expressly provides to the contrary, any waiver so granted shall extend only to the specific event or occurrence which gave rise to the Default or Event of Default so waived and not to any other similar event or occurrence which occurs subsequent to the date of such waiver.
Section 4.5.Restoration of Rights and Remedies. If the Indenture Trustee or any Secured Party has instituted any proceeding to enforce any right or remedy that it has, if any, under this Master Indenture and any Series Supplement, and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Indenture Trustee or such Secured Party, then in every such case the Issuer, the Indenture Trustee and each such Secured Party shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and each such Secured Party shall continue as though no such proceeding has been instituted.
Section 4.6.Remedies Cumulative. Each and every right, power and remedy herein given to the Indenture Trustee (or the Control Parties or the Requisite Majority), the Hedge Providers, the Liquidity Facility Providers and the other Secured Parties, if applicable, specifically or otherwise in this Master 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 (or the Control Parties or the Requisite Majority), the Hedge Providers, the Liquidity Facility Providers and the other Secured Parties, if applicable, 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 same time or thereafter any other right, power or remedy. No delay or omission by the Indenture Trustee (or the Control Parties or the Requisite Majority), a Hedge Provider, a Liquidity Facility Provider or any other Secured Party, if applicable, in the exercise of any such right, remedy or power or in the pursuance of any such remedy shall impair any such right, power or remedy or be construed to be a waiver of any Default on the part of the Issuer or to be an acquiescence.
Section 4.7.Authority of Courts Not Required. The parties hereto agree that, to the greatest extent permitted by law, the Indenture Trustee shall not be obliged or required to seek or obtain the authority of, or any judgment or order of, the courts of any jurisdiction in order to exercise any of its rights, powers and remedies under this Master Indenture and any Series
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Supplement, and the parties hereby waive any such requirement to the greatest extent permitted by law.
Section 4.8.Rights of Holders to Receive Payment. Notwithstanding any other provision of this Master Indenture, the right of any Holder to receive payment of interest on, principal of, or premium or any other distribution, if any, on the Securities on or after the respective due dates therefor, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 4.9.Indenture Trustee May File Proofs of Claim. The Indenture Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee and of any Holder allowed in any judicial proceedings relating to the Issuer, its creditors or its property.
Section 4.10.Undertaking for Costs. All parties to this Master Indenture agree, and each Holder by its acceptance thereof shall be deemed to have agreed, that in any suit for the enforcement of any right or remedy under this Master Indenture and any Series Supplement or in any suit against the Indenture Trustee for any action taken or omitted by it as Indenture Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defense made by the party litigant. This Section 4.10 does not apply to a suit instituted by the Indenture Trustee, a suit instituted by any Holder for the enforcement of the payment of interest, principal, premium or any other amounts, if any, on the Securities on or after the respective due dates expressed in such Securities, to the extent applicable, or a suit by a Holder or Holders of more than 10% of the Outstanding Principal Balance of any Series of Notes or the Outstanding Stated Amount of the Class E Certificates (exclusive of Securities or interests therein held by any Issuer Group Member).
Section 4.11.Purchase Right of Class B Holders. Each Holder of a Class B Equipment Note (other than any Class B Equipment Note held by the Issuer or an Affiliate of the Issuer) will have the right (the “Class B Purchase Right”) on any date occurring on or after the date of the occurrence of an Event of Default that is continuing as of the date of purchase, upon at least twenty (20) days’ written notice to the Indenture Trustee (with a copy to the Issuer), to purchase all, but not less than all, of the Class A Equipment Notes of all Outstanding Series for a purchase price equal to the aggregate Outstanding Principal Balance of all such Class A Equipment Notes, plus accrued and unpaid interest (at the applicable rate of interest for the related sub-class of Class A Equipment Notes) on such Outstanding Principal Balance together with any Additional Interest due and payable to the Holders of the Class A Equipment Notes (any such principal and interest in respect of any such sub-class of Class A Equipment Notes and Additional Interest, the “Class B Purchase Right Outstanding Priority Balance”); provided that (i) if prior to the end of such twenty (20) day period any other Holder of a Class B Equipment Note (other than any Class B Equipment Note held by the Issuer or an Affiliate of the Issuer) notifies such purchasing Holder of a Class B Equipment Note that such other Holder of a Class B Equipment Note wants to participate in such purchase, then such other Holder of a Class B Equipment Note may join with the purchasing Holder of a Class B
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Equipment Note (any such purchasing Holders of a Class B Equipment Note shall be collectively referred to as the “Class B Purchasers”) in exercising the Class B Purchase Right and (ii) if prior to the end of such twenty (20) day period any other Holder of a Class B Equipment Note fails to notify the Class B Purchasers of such other Holder of a Class B Equipment Note’s desire to participate in such a purchase, then such other Holder of a Class B Equipment Note designated shall lose its right to purchase the Class A Equipment Notes of all Outstanding Series. As a condition precedent to such purchase, all interest and principal amounts due and payable to the Liquidity Facility Providers will have been paid in full by such Class B Purchasers and all Liquidity Facilities shall have been terminated or cancelled in full. Upon receipt of any such notice, the Administrator will calculate the then Class B Purchase Right Outstanding Priority Balance. Payment of the Class B Purchase Right Outstanding Priority Balance will in each case be made ratably by each Class B Purchaser based on the ratio of the Outstanding Principal Balance of the Class B Equipment Notes held by such Class B Purchaser to the Outstanding Principal Balance of the Class B Equipment Notes held by all Class B Purchasers. Following all Class B Purchasers’ payment of their portion of the Class B Purchase Right Outstanding Priority Balance, each applicable Class B Purchaser shall be the Holder of the applicable Class A Equipment Notes and shall be entitled to all rights and interests to which a Holder of the Class A Equipment Notes would be entitled.
Section 4.12.Purchase Right of Class C Holders. Each Holder of a Class C Equipment Note (other than any Class C Equipment Note held by the Issuer or an Affiliate of the Issuer) will have the right (the “Class C Purchase Right”) on any date occurring on or after the date of the occurrence of an Event of Default that is continuing as of the date of purchase, upon at least twenty (20) days’ written notice to the Indenture Trustee (with a copy to the Issuer), to purchase all, but not less than all, of the Class A Equipment Notes and the Class B Equipment Notes of all Outstanding Series for a purchase price equal to the aggregate Outstanding Principal Balance of all such Class A Equipment Notes and Class B Equipment Notes, plus accrued and unpaid interest (at the applicable rate of interest for the related sub-class of Class A Equipment Notes and Class B Equipment Notes) on such Outstanding Principal Balance together with any Additional Interest due and payable to the Holders of the Class A Equipment Notes and the Class B Equipment Notes (any such principal and interest in respect of any such sub-class of Class A Equipment Notes and Class B Equipment Notes and Additional Interest, the “Class C Purchase Right Outstanding Priority Balance”); provided that (i) if prior to the end of such twenty (20) day period any other Holder of a Class C Equipment Note (other than any Class C Equipment Note held by the Issuer or an Affiliate of the Issuer) notifies such purchasing Holder of a Class C Equipment Note that such other Holder of a Class C Equipment Note wants to participate in such purchase, then such other Holder of a Class C Equipment Note may join with the purchasing Holder of a Class C Equipment Note (any such purchasing Holders of a Class C Equipment Note shall be collectively referred to as the “Class C Purchasers”) in exercising the Class C Purchase Right and (ii) if prior to the end of such twenty (20) day period any other Holder of a Class C Equipment Note fails to notify the Class C Purchasers of such other Holder of a Class C Equipment Note’s desire to participate in such a purchase, then such other Holder of a Class C Equipment Note designated shall lose its right to purchase the Class A Equipment Notes and the Class B Equipment Notes of all Outstanding Series. As a condition precedent to such purchase, all interest and principal amounts due and payable to the Liquidity Facility Providers will have been paid in full by such Class C Purchasers and all Liquidity Facilities shall have
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been terminated or cancelled in full. Upon receipt of any such notice, the Administrator will calculate the then Class C Purchase Right Outstanding Priority Balance. Payment of the Class C Purchase Right Outstanding Priority Balance will in each case be made ratably by each Class C Purchaser based on the ratio of the Outstanding Principal Balance of the Class C Equipment Notes held by such Class C Purchaser to the Outstanding Principal Balance of the Class C Equipment Notes held by all Class C Purchasers. Following all Class C Purchasers’ payment of their portion of the Class C Purchase Right Outstanding Priority Balance, each applicable Class C Purchaser shall be the Holder of the applicable Class A Equipment Notes and Class B Equipment Notes and shall be entitled to all rights and interests to which a Holder of the Class A Equipment Notes and the Class B Equipment Notes would be entitled. The rights of the Class C Purchasers pursuant to this Section 4.12 shall continue regardless of whether any Holder of Class B Equipment Notes previously exercised the Class B Purchase Right pursuant to Section 4.11.
Section 4.13.Purchase Rights of the Holder of the Class E Certificates. Upon the occurrence of an Event of Default, each Holder of a Class E Certificate will have the right (the “Class E Purchase Right”) on any date occurring on or after the date of the occurrence of an Event of Default that is continuing as of the date of purchase, upon at least twenty (20) days’ written notice to the Indenture Trustee (with a copy to the Issuer), to purchase all, but not less than all, of the Equipment Notes of all Outstanding Series for a purchase price equal to the aggregate Outstanding Principal Balance of all such Equipment Notes, plus accrued and unpaid interest (at the applicable rate of interest for the related sub-class of Equipment Notes) on such Outstanding Principal Balance together with any Additional Interest due and payable to the Holders of the Equipment Notes (any such principal and interest in respect of any such sub-class of Equipment Notes and Additional Interest, the “Class E Purchase Right Outstanding Priority Balance”); provided that (i) if prior to the end of such twenty (20) day period any other Holder of a Class E Certificate notifies such purchasing Holder of a Class E Certificate that such other Holder of a Class E Certificate wants to participate in such purchase, then such other Holder of a Class E Certificate may join with the purchasing Holder of a Class E Certificate (any such purchasing Holders of a Class E Certificate shall be collectively referred to as the “Class E Purchasers”) in exercising the Class E Purchase Right and (ii) if prior to the end of such twenty (20) day period any other Holder of a Class E Certificate fails to notify the Class E Purchasers of such other Holder of a Class E Certificate’s desire to participate in such a purchase, then such other Holder of a Class E Certificate designated shall lose its right to purchase the Equipment Notes of all Outstanding Series. As a condition precedent to such purchase, all interest and principal amounts due and payable to the Liquidity Facility Providers will have been paid in full by such Class E Purchasers and all Liquidity Facilities shall have been terminated or cancelled in full. Upon receipt of any such notice, the Administrator will calculate the then Class E Purchase Right Outstanding Priority Balance. Payment of the Class E Purchase Right Outstanding Priority Balance will in each case be made ratably by each Class E Purchaser based on the ratio of the Outstanding Principal Balance of the Class E Equipment Notes held by such Class E Purchaser to the Outstanding Principal Balance of the Class E Equipment Notes held by all Class E Purchasers. Following all Class E Purchasers’ payment of their portion of the Class E Purchase Right Outstanding Priority Balance, each applicable Class E Purchaser shall be the Holder of the applicable Equipment Notes and shall be entitled to all rights and interests to which a Holder of the Equipment Notes would be entitled. The rights of the Class E Purchasers pursuant to this
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Section 4.13 shall continue regardless of whether (x) any Holder of Class B Equipment Notes previously exercised the Class B Purchase Right pursuant to Section 4.11 or (y) any Holder of Class C Equipment Notes previously exercised the Class C Purchase Right pursuant to Section 4.12.
ARTICLE 5

REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.01.Representations and Warranties. The Issuer represents and warrants to the Indenture Trustee as of each Closing Date, and each Delivery Date, as follows:
(a)Due Organization.
(i)The Issuer is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, is duly licensed or qualified and in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its ability to carry on its business as now conducted or to enter into and perform its obligations under the Issuer Documents and the Operative Agreements to which the Issuer is a party, has the organizational power and authority to carry on its business as now conducted, has the requisite organizational power and authority to execute, deliver and perform its obligations under the Issuer Documents and the Operative Agreements to which the Issuer is a party.
(ii)Each of the LLC Agreement and each other organizational document of the Issuer has been duly executed and delivered by each party thereto and constitutes a legal, valid and binding obligation of each such party enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity.
(iii)Since the date of formation of the Issuer, the Issuer has not conducted business under any other name and does not have any trade names, or “doing business under” or “doing business as” names. The Issuer has not reorganized in any jurisdiction (whether the United States, any state therein, the District of Columbia, Puerto Rico, Guam or any possession or territory of the United States, or any foreign country or state) other than the State of Delaware.
(b)Special Purpose Status. The Issuer has not engaged in any activities since its organization (other than those incidental to its organization and other appropriate limited liability company steps and arrangements for the payment of fees to, and director’s and officer’s insurance for, its member, special member and manager), the execution of (i) the Issuer Documents and the Operative Agreements to which it is a party and (ii) the Issuer Documents and the Operative Agreements (in each case, as defined in the 2011 Master Indenture) to which it is a party and, in either case, the activities referred to in or contemplated by such agreements.
(c)Non-Contravention. The Issuer’s acquisition of Railcars pursuant to an Asset Transfer Agreement, the other transactions contemplated by each Asset Transfer
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Agreement, the creation of the Securities and the issuance, execution and delivery of, and the compliance by the Issuer with the terms of each of the Operative Agreements and the Securities:
(i)do not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, the constitutional documents of the Issuer or with any existing law, rule or regulation applying to or affecting the Issuer or any judgment, order or decree of any government, governmental body or court having jurisdiction over Issuer;
(ii)do not infringe the terms of, or constitute a default under, any deed, indenture, agreement or other instrument or obligation to which the Issuer is a party or by it or its assets, property or revenues are bound; and
(iii)do not constitute a default by the Issuer under, or result in the creation of any Encumbrance (except for Permitted Encumbrances of the type described in clause (i), (ii) or (v) of the definition thereof) upon the property of the Issuer under its organizational documents or any indenture, mortgage, contract or other agreement or instrument to which the Issuer is a party or by which the Issuer or any of its properties may be bound or affected.
(d)Due Authorization. The Issuer’s acquisition of Railcars pursuant to an Asset Transfer Agreement, the other transactions contemplated by each Asset Transfer Agreement, the creation, execution and issuance of the Securities, the execution and issue or delivery by the Issuer of the Operative Agreements executed by it and the performance by it of its obligations hereunder and thereunder and the arrangements contemplated hereby and thereby to be performed by it have been duly authorized by all necessary limited liability company action of the Issuer.
(e)Validity and Enforceability. This Master Indenture constitutes, and the Operative Agreements, when executed and delivered and, in the case of the Securities, when issued and authenticated, will constitute valid, legally binding and (subject to general equitable principles, insolvency, liquidation, reorganization and other laws of general application relating to creditors’ rights or claims or to laws of prescription or the concepts of materiality, reasonableness, good faith and fair dealing) enforceable obligations of the Issuer.
(f)No Event of Default or Early Amortization Event. No Event of Default or Early Amortization Event has occurred and is continuing and no event has occurred that with the passage of time or notice or both would become an Event of Default or Early Amortization Event.
(g)No Encumbrances. Subject to the Security Interests created in favor of the Indenture Trustee and the Flow of Funds, and except for Permitted Encumbrances, there exists no Encumbrance over the assets of the Issuer that ranks prior to or pari passu with the obligation to make payments on the Securities.
(h)No Consents. No consent, approval or authorization of, or filing, registration or qualification with, or the giving of notice to, any trustee or any holder of indebtedness of the Issuer or any governmental authority on the part of the Issuer is required
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in the United States, Canada or Mexico (subject to the proviso set forth below) in connection with the execution and delivery by the Issuer of the Operative Agreements to which the Issuer is a party or in order for the Issuer to perform its obligations thereunder in accordance with the terms thereof, other than: (i) notices required to be filed with the STB and the Registrar General of Canada, which notices shall have been filed on the applicable Closing Date, (ii) as may be required under existing laws, ordinances, governmental rules and regulations to be obtained, given, accomplished or renewed at any time after the applicable Closing Date in connection with the operation and maintenance of the Portfolio Railcars and in accordance with the Operative Agreements that are routine in nature and are not normally applied for prior to the time they are required, and which the Issuer has no reason to believe will not be timely obtained, (iii) as may be required under the Operative Agreements in consequence of any transfer of ownership of the Portfolio Railcars and (iv) filing and recording to perfect the Security Interests under this Master Indenture and any Series Supplement as required hereunder; provided, that the parties hereto agree that the Issuer shall not be required to make any such filings or recordings in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada.
(i)No Litigation. There is no claim, action, suit, investigation or proceeding pending against, or to the knowledge of the Issuer, threatened against or affecting the Issuer, before any court or arbitrator or any governmental body, agency or official which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated by this Master Indenture (including the Exhibits and Schedules attached hereto) and/or the Operative Agreements.
(j)Employees, Subsidiaries. The Issuer has no employees. The Issuer has no Subsidiaries.
(k)Ownership. The Issuer is the owner of the Collateral free from all Encumbrances and claims whatsoever other than Permitted Encumbrances.
(l)No Filings. Under the laws of Delaware, Texas and New York (and including U.S. federal law) in force at the date hereof, it is not necessary or desirable that this Master Indenture or any Operative Agreement to which the Issuer is a party be filed, recorded or enrolled with any court or other authority in any such jurisdictions or that any material stamp, registration or similar tax be paid on or in relation to this Master Indenture or any of the other Operative Agreements (other than filings of UCC financing statements and with the STB and in Canada in respect of the Security Interests in the Portfolio Railcars).
(m)Other Representations. The representations and warranties made by the Issuer in any of the other Operative Agreements are true and accurate as of the date made.
(n)Other Regulations. The Issuer is not an “investment company,” or an “affiliated person” of, or a “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(o)Insurance. The Portfolio Railcars described on each Delivery Schedule delivered from time to time under an Asset Transfer Agreement are, at the time of the related Conveyance to the Issuer, covered by the insurance required by Section 5.04(f), and all
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premiums due prior to the applicable Delivery Date in respect of such insurance shall have been paid in full and such insurance as of the applicable Delivery Date is in full force and effect.
(p)No Event of Default or Total Loss. At the time of each Conveyance of Railcars under an Asset Transfer Agreement, (i) no Event of Default has occurred and is continuing, (ii) no Servicer Default (in the case of Conveyances other than on a Closing Date) or Servicer Termination Event (in the case of Conveyances on a Closing Date) has occurred and is continuing, (iii) to the knowledge of the Issuer, no Total Loss or event that, with the giving of notice, the passage of time or both, would constitute a Total Loss with respect to any of the Railcars so Conveyed, has occurred, and (iv) to the knowledge of the Issuer, no Railcar being Conveyed under an Asset Transfer Agreement on such date has suffered damage or contamination which, in the Issuer’s reasonable judgment, makes repair uneconomic or renders such Railcar unfit for commercial use.
(q)Beneficial Title. On each Delivery Date upon which a Conveyance occurs under an Asset Transfer Agreement, (i) the applicable Seller has, and shall pursuant to its related Bill of Sale have, conveyed all legal and beneficial title of the Issuer to such Railcars being so Conveyed free and clear of all Encumbrances (other than Permitted Encumbrances) and such Conveyance will not be void or voidable under any applicable law and (ii) the applicable Seller has assigned, and the Assignment and Assumption to be delivered on the related Delivery Date shall upon acceptance thereof by the Issuer assign, to the Issuer, all legal and beneficial title of such Seller to the related Leases, free and clear of all Encumbrances (other than Permitted Encumbrances), and the Assignment and Assumption will not be void or voidable under any applicable law.
(r)Nature of Business. The Issuer is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Securities will be used by the Issuer for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System (terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, being used in this Section 5.01(r) with such meanings).
(s)No Default under Organizational Documents. The Issuer is not in violation of any term of any of its organizational documents or in violation or breach of or in default under any other agreement, contract or instrument to which it is a party or by which it or any of its property may be bound.
(t)Issuer Compliance. The Issuer is in compliance in all material respects with all laws, ordinances, governmental rules, regulations, orders, judgments, decrees, determinations and awards to which it is subject, and the Issuer has obtained all required licenses, permits, franchises and other governmental authorizations material to the conduct of its business.
(u)Railcar Compliance; Autoracks. Each Railcar Conveyed on a Delivery Date, taken as a whole, and each major component thereof complies in all material respects with all applicable laws and regulations, all requirements of the manufacturer for maintaining in
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full force and effect any applicable warranties and the requirements, if any, of any applicable insurance policies, conforms with the specifications for such Railcar contained in the related Appraisal (to the extent a copy of such Appraisal or a relevant excerpt therefrom has been delivered to the Issuer) and is substantially complete such that it is ready and available to operate in commercial service and otherwise perform the function for which it was designed; and the railcar identification marks shown on the related Bill of Sale are the marks then used on the Portfolio Railcars set forth on such Bill of Sale. Each Portfolio Railcar that is an autorack qualifies for the National Reload Pool.
(v)Taxes. On each Delivery Date upon which a Conveyance occurs under an Asset Transfer Agreement, all sales, use or transfer taxes, if any, due and payable upon the purchase of the Portfolio Railcars by the Issuer from the applicable Seller will have been paid or such transactions will then be exempt from any such taxes, and the Issuer will cause any required forms or reports in connection with such taxes to be filed in accordance with applicable laws and regulations.
(w)Lease Terms. Except where a Railcar is being conveyed on a Closing Date and the related Series Supplement references this Section 5.01(w) and permits an exception hereto, each Railcar Conveyed on the relevant Delivery Date is subject to a Permitted Lease, which Lease (together with the other Leases that are or have been the subject of such Conveyances) contains rental and other terms which are no different, taken as a whole, from those for similar railcars in the Servicer’s Fleet.
(x)Eligibility. Each Railcar described on its relevant Delivery Schedule constitutes an Eligible Railcar as of the date of its Conveyance to the Issuer.
(y)Assignment of Leases. (i) Each Lease conveyed on the relevant Delivery Date is freely assignable from the applicable Seller to the Issuer and from the Issuer to any other Person (including, without limitation, any transferee in connection with the Indenture Trustee’s exercise of rights or remedies under this Master Indenture and any Series Supplement) or, if any such Lease is not freely assignable, then consents to such assignments determined by the Servicer in good faith to be sufficient for their intended purposes have been obtained prior to the relevant Delivery Date, (ii) no assignment described in this Section 5.01(y) is void or voidable or will result in a claim for damages or reduction in rental or other payments, in each case pursuant to the terms and conditions of any such Lease and (iii) no consent, approval or filing is required under such Lease in connection with the execution and delivery of the Operative Agreements.
(z)Purchase Options. With respect to any Portfolio Railcars that are subject to a purchase option granted to the Lessee under the relevant Lease, such purchase option is exercisable by the applicable Lessee for a purchase price not less than (at the time of such purchase) the greater of (1) an appraiser’s estimate at Lease inception of fair market value at the time of potential exercise under the option provision, and (2) (A) one hundred five percent (105%) of the product of the Allocable Note Balance of the Portfolio Railcars subject to such purchase option, plus (B) one hundred five percent (105%) of the product of the Allocable Subordinated Note Balance of the Portfolio Railcars subject to such purchase option, plus (C) any Hedge Partial Termination Value that would be owed by the Issuer to Hedge Providers, if applicable, plus (D) an amount equal to any Redemption Premium that would be payable on
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the Equipment Notes if on the date such purchase option is exercised, an Optional Redemption of the applicable Equipment Notes would require the payment of a Redemption Premium (with such amount, if any, to be determined in the same manner as the Redemption Premium related to an Optional Redemption). Any such purchase option complying with each of the foregoing limitations referred to herein and in the other Operative Agreements as a “Permitted Purchase Option.”
(aa)No Other Financing of Lease; Permitted Lease. After giving effect to the transfers contemplated under the Operative Agreements, (i) the Leases being Conveyed to the Issuer on any applicable Delivery Date (as evidenced by the Riders or Schedules with respect thereto) are not subject to and do not cover railcars financed in, any financing or securitization transaction other than to the extent constituting a Permitted Encumbrance and other than the transactions contemplated by the Operative Agreements and (ii) such Leases conform to the definition of Permitted Lease (provided that up to 5% of the aggregate number of Portfolio Railcars may be subject to a Lease other than a Permitted Lease).
(ab)Concentration Limits. After giving effect to the Issuer’s acquisition of Railcars in connection with issuing a Series of Securities on the applicable Closing Date, the Portfolio complies with all Concentration Limits.
(ac)Tax Status. As of the Initial Closing Date, the Issuer: (i) is classified as a disregarded entity for United States federal income tax purposes, and (ii) is not required to withhold on any distributions or allocations to its equity holders, as determined for U.S. federal income tax purposes, under Sections 1441, 1442, 1445, 1446, 1471 or 1472 of the Code.
Section 5.02.General Covenants. The Issuer covenants with the Indenture Trustee as follows:
(a)No Release of Obligations. The Issuer will not take any action which would amend, terminate (other than any termination in connection with the replacement of such agreement on terms substantially no less favorable to the Issuer than the agreement being terminated) or discharge or prejudice the validity or effectiveness of this Master Indenture (other than as permitted herein) or any other Operative Agreement or permit any party to any such document to be released from such obligations, except that, in each case, as permitted or contemplated by the terms of such documents, and provided that, in any case, (i) the Issuer will not take any action which would result in any amendment or modification to any conflicts standard or duty of care in such agreements and (ii) there must be at all times an Administrator and a Servicer with respect to all Portfolio Railcars.
(b)Encumbrances. The Issuer will not create, incur, assume or suffer to exist any Encumbrance on the Collateral other than: (i) any Permitted Encumbrance, and (ii) any other Encumbrance the validity or applicability of which is being contested in good faith in appropriate proceedings by any Issuer Group Member (and the proceedings related to such Encumbrance or the continued existence of such Encumbrance does not give rise to any reasonable likelihood of the sale, forfeiture or loss of the asset affected by such Encumbrance) and for which the Issuer maintains adequate cash reserves to pay such Encumbrance.
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(c)Indebtedness. The Issuer will not incur, create, issue, assume, guarantee or otherwise become liable for or with respect to, or become responsible for the payment of, contingently or otherwise, whether present or future, Indebtedness, other than Indebtedness in respect of the Securities issued in accordance with the terms of this Master Indenture and Indebtedness under any Liquidity Facilities, any Hedge Agreement and the other Operative Agreements.
(d)Restricted Payments. The Issuer will not (i) declare or pay any dividend or make any distribution on its Stock; (ii) purchase, redeem, retire or otherwise acquire for value any membership interest in the Issuer held by or on behalf of Persons other than any Permitted Holder; (iii) make any interest, principal or premium, if any, payment on the Notes or make any voluntary or optional repurchase, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer other than in accordance with the Securities and this Master Indenture or the Operative Agreements; provided that the Issuer may repurchase, defease or otherwise acquire or retire any of the Securities from a source other than from Collections (other than that portion of Collections that would otherwise be distributable to the Issuer in accordance with the Flow of Funds); or (iv) make any investments, other than Permitted Investments and investments permitted under Section 5.02(f).
The term “investment” for purposes of the above restriction shall mean any loan or advance to a Person, any purchase or other acquisition of any Stock or Indebtedness of such Person, any capital contribution to such Person or any other investment in such Person.
(e)Limitation on Dividends and Other Payments. The Issuer will not create or otherwise suffer to exist any consensual limitation or restriction of any kind on the ability of the Issuer to declare or pay dividends or make any other distributions permitted by Applicable Law, other than pursuant to the Operative Agreements.
(f)Business Activities. The Issuer will not engage in any business or activity other than:
(i)purchasing or otherwise acquiring (subject to the limitations on acquisitions of Portfolio Railcars described below), owning, holding, converting, maintaining, modifying, managing, operating, leasing, re-leasing and (subject to the limitations on sales of Portfolio Railcars described below) selling or otherwise disposing of its Portfolio Railcars and entering into all contracts and engaging in all related activities incidental thereto, including from time to time accepting, exchanging, holding promissory notes, contingent payment obligations or equity interests of Lessees or their Affiliates issued in connection with the bankruptcy, reorganization or other similar process, or in settlement of delinquent obligations or obligations anticipated to be delinquent of such Lessees or their respective Affiliates in the ordinary course of business;
(ii)financing or refinancing the business activities described in clause (i) of this Section 5.02(f) through the offer, sale and issuance of one or more Series of Securities, upon such terms and conditions as the Issuer sees fit, subject to the limitations of this Master Indenture;
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(iii)purchasing, acquiring, surrendering and assigning policies of insurance and assurances with any insurance company or companies which the Issuer or the Insurance Manager determines to be necessary or appropriate to comply with this Master Indenture or the Insurance Agreement and to pay the premiums or the Issuer’s allocable portion thereon;
(iv)entering into Liquidity Facilities;
(v)engaging in currency and interest rate exchange transactions for the purposes of avoiding, reducing, minimizing, hedging against or otherwise managing the risk of any loss, cost, expense or liability arising, or which may arise, directly or indirectly, from any change or changes in any interest rate or currency exchange rate or in the price or value of the property or assets of the Issuer, upon such terms and conditions as the Issuer sees fit and within any limits and with any provisos specified in this Master Indenture or a Series Supplement, including but not limited to dealings, whether involving purchases, sales or otherwise, in foreign currency, spot and forward interest rate exchange contracts, forward interest rate agreements, caps, floors and collars, futures, options, swaps and any other currency, interest rate and other similar hedging arrangements and such other instruments as are similar to, or derivatives of, any of the foregoing, but in any event not for speculative purposes; and
(vi)taking any action that is incidental to, or necessary to effect, any of the actions or activities set forth above.
(g)Limitation on Consolidation, Merger and Transfer of Assets. The Issuer will not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of its property and assets (as an entirety or substantially an entirety in one transaction or in a series of related transactions) to, any other Person, or permit any other Person to merge with or into the Issuer (any such consolidation, merger, sale, conveyance, transfer, lease or other disposition, a “Merger Transaction”), unless:
(i)the resulting entity is a special purpose entity, the charter of which is substantially similar to the LLC Agreement, and, after such Merger Transaction, payments from such resulting entity to the Holders do not give rise to any withholding tax payments less favorable to the Holders than the amount of any withholding tax payments which would have been required had such Merger Transaction not occurred and such entity is not subject to taxation as a corporation or an association or a publicly traded partnership taxable as a corporation;
(ii)(A) such Merger Transaction has been unanimously approved by the board of managers of the Issuer and (B) the surviving successor or transferee entity shall expressly assume all of the obligations of the Issuer in and under this Master Indenture and any Series Supplement, the Securities and each other Operative Agreement to which the Issuer is then a party (with the result that, in the case of a transfer only, the Issuer thereupon will be released);
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(iii)both before, and immediately after giving effect to such Merger Transaction, no violation of a Concentration Limit, Event of Default or Early Amortization Event shall have occurred and be continuing;
(iv)each of (A) a Rating Agency Confirmation and (B) the consent of the Indenture Trustee (acting at the Direction of a Requisite Majority) has been obtained with respect to such Merger Transaction;
(v)for U.S. Federal income tax purposes, such Merger Transaction does not result in the recognition of gain or loss by any Holder; and
(vi)the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that such Merger Transaction complies with the above criteria and, if applicable, Section 5.03(a) and that all conditions precedent provided for herein relating to such transaction have been complied with.
(h)Limitation on Transactions with Affiliates. The Issuer will not, directly or indirectly, enter into, renew or extend any transaction (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with any Affiliate of the Issuer, except upon fair and reasonable terms no less favorable to the Issuer than could be obtained, at the time of such transaction or at the time of the execution of the agreement providing therefor, in a comparable arm’s-length transaction with a Person that is not such an Affiliate, provided, that the foregoing restriction does not limit or apply to the following:
(i)any transaction in connection with the establishment of the Issuer, its initial capitalization and the acquisition of its initial Portfolio or pursuant to the terms of the Operative Agreements;
(ii)the payment of reasonable and customary regular fees to, and the provision of reasonable and customary liability insurance in respect of, the managers/members of the Issuer;
(iii)any payments on or with respect to the Securities or otherwise in accordance with the Flow of Funds;
(iv)any acquisition of Additional Railcars or any Permitted Railcar Acquisition or Permitted Railcar Disposition complying with Section 5.03;
(v)any payments of the types referred to in clause (i) or (ii) of Section 5.02(d) and not prohibited thereunder;
(vi)the sale of Portfolio Railcars as part of a single transaction providing for the redemption or defeasance of Securities in accordance with the terms of this Master Indenture;
(vii)the sale of the Class E Certificates to the Initial Holder;
(viii)the sale of the Subordinated Notes to the Member; or
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(ix)the payment of fees and expenses to TILC as contemplated by any applicable Service Provider Agreement.
(i)Limitation on the Issuance, Delivery and Sale of Equity Interests. Except as expressly permitted by its LLC Agreement, the Issuer will not (1) issue, deliver or sell any Stock or (2) sell, directly or indirectly, or issue, deliver or sell, any Stock, except for the following:
(A)issuances or sales of any additional membership interests to the Member (the “Permitted Holder”); or
(B)contributions, including Capital Contributions, by the Permitted Holder of funds to the Issuer (x) with which to effect a redemption or discharge of the Securities upon any acceleration of the Securities or (y) as otherwise contemplated by this Master Indenture, an Asset Transfer Agreement or the LLC Agreement.
In accordance with the LLC Agreement, no issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer (or other interest in the Issuer treated as equity for U.S. federal income tax purposes) will be effective, and any such issuance, delivery, sale transfer or other disposition will be void ab initio, if it would result in the Issuer being classified as an association (or a publicly traded partnership) taxable as a corporation for U.S. federal income tax purposes or if the Issuer would be required to withhold on any distributions or allocations to its equity holders under Sections 871, 881, 1441, 1442, 1445, 1446, 1471 or 1472 of the Code. In addition, any such issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer, other than to a Permitted Holder, will require Rating Agency Confirmation.
(j)Bankruptcy and Insolvency.
(i)The Issuer will promptly provide the Indenture Trustee and each Rating Agency with written notice of the institution of any proceeding by or against the Issuer seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for all or for any substantial part of its property. The Issuer will not, without obtaining the prior written consent of the Requisite Majority (such consent not to be unreasonably withheld) as well as Rating Agency Confirmation, take any action to waive, repeal, amend, vary, supplement or otherwise modify the provision of its LLC Agreement which requires action or consent of its special member or limits actions of the Issuer with respect to voluntary insolvency proceedings or involuntary insolvency proceedings of the Issuer.
(ii)The Issuer shall cause each party to any Operative Agreement, and each party to any other agreement to which the Issuer is a party that is incidental or related to any Operative Agreement, that in either such case renders the Issuer a debtor to such party, to covenant and agree that it shall not, prior to the date which is one year
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and one day (or if longer, the applicable preference period then in effect) after the payment in full of the Securities, acquiesce, petition or otherwise, directly or indirectly, invoke or cause the Issuer to invoke the process of any governmental authority for the purpose of commencing or sustaining a case against the Issuer under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of its property or ordering the winding up or liquidation of the affairs of the Issuer. This provision shall survive the termination of this Master Indenture.
(k)Payment of Principal, Premium, if any, and Interest. The Issuer will duly and punctually pay the principal, premium, if any, and interest on the Securities in accordance with the terms of this Master Indenture, the applicable Series Supplements and the Securities.
(l)Limitation on Employees. The Issuer will not employ or maintain any employees other than as required by any provisions of local law. Managers, officers and directors of the Issuer shall not be deemed to be employees for purposes of this Section 5.02(l).
(m)Delivery of Rule 144A Information. To permit compliance with Rule 144A in connection with offers and sales of Equipment Notes, the Issuer will promptly furnish upon request of a Holder of Equipment Notes to such Holder and a prospective purchaser designated by such Holder, the information required to be delivered under Rule 144A(d)(4) if at the time of such request the Issuer is not a reporting company under Section 13 or Section 15(d) of the Exchange Act.
(n)Administrator. If at any time there is not a Person acting as Administrator, the Issuer shall promptly appoint a qualified Person to perform any duties under this Master Indenture and any Series Supplement that the Administrator is obligated to perform until a replacement Administrator assumes the duties of the Administrator.
(o)Ratings of Securities. For so long as any Notes are Outstanding, the Issuer shall pay all fees of the applicable Rating Agency and shall respond to reasonable requests for information from the applicable Rating Agency from time to time in order to permit the applicable Rating Agency to maintain a rating with respect to the applicable Series of Securities or Class thereof.
(p)Tax Covenants of the Issuer. The Issuer (i) shall not elect or agree to elect to be classified as an association taxable as a corporation for United States federal income tax or any State income or franchise tax purposes and (ii) shall maintain classification as a disregarded entity or partnership (other than a publicly traded partnership taxable as a corporation) whose sole member(s) are “United States persons” within the meaning of Section 7701(a)(30) of the Code for such purposes. In the event the Issuer is classified as a partnership for United States federal income tax purposes, for any taxable years for which Section 6221 through 6241 of the Code apply to the Issuer, then the Issuer shall timely make, to the extent legally eligible to do so, an election under Section 6221(b) or Section 6226(a) of the Code (or any similar election available pursuant to Treasury Regulations under Section 6221 through 6241 of the Code at such time) with respect to determinations of adjustments at the partnership level.
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(q)Separate Entity Characteristics. The Issuer shall at all times:
(i)not commingle its assets with those of any Person, including any Affiliate, except with respect to the Marks and the Customer Payment Account and as may occur from time to time due to misdirected payments;
(ii)conduct its business separate from any direct or ultimate parent of the Issuer;
(iii)maintain financial statements susceptible to audit, separate from those of any other Person showing its assets and liabilities separate and apart from those of any other Person (it being acknowledged however that nothing herein restricts TILC, Trinity or any of their Affiliates from consolidating the Issuer into any consolidated financial statements they prepare; provided that the Issuer is shown as a separate legal entity);
(iv)pay its own expenses and liabilities and pay the salaries of its own employees, if any, only from its own funds;
(v)maintain an “arm’s-length relationship” with its Affiliates, except as permitted by the Operative Agreements;
(vi)except as contemplated by a Note Purchase Agreement, a Subordinated Note Purchase Agreement or the Certificate Purchase Agreement, not guarantee or become obligated for the debts of any other Person and not hold out its credit as being available to satisfy the debts or any other obligations of any other Person;
(vii)hold itself out as a separate and distinct entity from any other Person (except as otherwise required by applicable tax law, to the extent the Issuer is a disregarded entity for U.S. federal income tax purposes);
(viii)observe all limited liability company and other organizational formalities required by the law of its jurisdiction of formation;
(ix)not acquire obligations or securities of any Person, except Permitted Investments and as otherwise contemplated in the Operative Agreements;
(x)allocate fairly and reasonably any overhead expenses shared with any other Person, if any;
(xi)except for the Security Interests and Permitted Encumbrances, not pledge its assets for the benefit of any other Person or make any loans or advances to any Person except to the extent permitted by the Operative Agreements (but the Issuer may extend or forbear obligations of any Lessees under the related Leases in the ordinary course of business and in accordance with the provisions of the Servicing Agreement);
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(xii)correct any known misunderstanding regarding its separate identity from other Persons;
(xiii)maintain adequate capital in light of its contemplated business operations;
(xiv)maintain books and records (in accordance with generally accepted accounting principles in the United States) separate from any other Person at its principal office which show a true and accurate record in United States dollars of all business transactions arising out of and in connection with the conduct of the Issuer and the operation of its business in sufficient detail to allow preparation of tax returns required to be prepared and the maintenance of the Indenture Accounts;
(xv)maintain bank and other accounts (other than the Indenture Accounts), if any, separate from any other Person;
(xvi)conduct its business in its own name; and
(xvii)not take any actions that would be inconsistent with maintaining the separate legal identity of the Issuer.
Section 5.03.Portfolio Covenants. The Issuer covenants with the Indenture Trustee as follows:
(a)Railcar Dispositions. Except as described in the Granting Clause with respect to the redemption in whole of a Series of Equipment Notes, the Issuer will not sell, transfer or otherwise dispose of any Railcar or any interest therein, except that the Issuer may sell, transfer or otherwise dispose of or part with possession of (i) any Parts, or (ii) one or more Portfolio Railcars, as follows (any such sale, transfer or disposition described in clause (i), (ii), (iii) or (iv) of this Section 5.03(a), a “Permitted Railcar Disposition”):
(i)A Railcar Disposition pursuant to a Permitted Purchase Option (a “Purchase Option Disposition”);
(ii)A Railcar Disposition pursuant to receipt of insurance or other third party proceeds in connection with the Total Loss of a Portfolio Railcar (and any consequent later sale of such affected Railcar for scrap or salvage value) (an “Involuntary Railcar Disposition”);
(iii)A Railcar Disposition in the ordinary course of business (other than a Railcar Disposition as a result of a Total Loss, a Scrap Value Disposition or a Purchase Option Disposition), but only in compliance with the following conditions (a “Permitted Discretionary Sale”):
(A)At the time of such Railcar Disposition, no Event of Default or Early Amortization Event shall have occurred and then be continuing;
(B)With respect to the Portfolio Railcars to be sold pursuant to a Permitted Discretionary Sale (such Portfolio Railcars being referred to below as
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the “Sold Railcars”), each of the following conditions shall have been satisfied and the Indenture Trustee shall have received an Officer’s Certificate of the Issuer (or the Servicer on its behalf) certifying as to the satisfaction of such conditions:
(1)The Sold Railcars must be sold by the Issuer to a third party or an Issuer Group Member on an arms-length basis; provided that if the Sold Railcars are to be sold to an Issuer Group Member, the sum of (a) the aggregate sum of the Initial Appraised Value of all Portfolio Railcars that any Issuer Group Member has purchased from the Issuer, and (b) the aggregate Initial Appraised Value of all Sold Railcars to be purchased by any Issuer Group Member from the Issuer may not exceed twenty-five percent (25%) of the highest aggregate Initial Appraised Value of all Portfolio Railcars owned by the Issuer up to the related date of sale; and
(2)The Net Disposition Proceeds realized in such sale must be at least (a) the sum of one hundred five percent (105%) of the Allocable Note Balance with respect to such Sold Railcars and one hundred five percent (105%) of the Allocable Subordinated Note Balance with respect to such Sold Railcars, plus (b) the amount of any Hedge Partial Termination Value that would be owed by the Issuer to a Hedge Provider, if applicable, plus (c) an amount equal to any Redemption Premium that would be payable on the applicable Securities if on the applicable Payment Date such Net Disposition Proceeds were applied, an Optional Redemption of the applicable Securities would require payment of a Redemption Premium (calculated in the same manner); and
(C)All amounts so transferred to the Collections Account may not be withdrawn therefrom except for distribution as contemplated by Section 3.14.
(iv)A Railcar Disposition at the end of the useful life (determined by the Servicer or the Administrator) of a Portfolio Railcar or if the Servicer or the Administrator determines that any Required Modification to a Portfolio Railcar is impracticable (a “Scrap Value Disposition”). With respect to a Permitted Railcar Disposition constituting a Scrap Value Disposition, the Issuer may not deposit the related Net Disposition Proceeds into the Optional Reinvestment Account for application to a purchase of a Qualifying Replacement Railcar but shall deposit such proceeds directly into the Collections Account; and
(v)With respect to a Permitted Railcar Disposition constituting a Purchase Option Disposition or Involuntary Railcar Disposition, the Issuer will, if not electing to deposit such proceeds directly into the Collections Account, deposit the related Net Disposition Proceeds into the Optional Reinvestment Account for application, within the Replacement Period, to a purchase of Qualifying Replacement Railcars in a Replacement Exchange (as contemplated and provided in Section 3.05).
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(b)Railcar Acquisitions. The Issuer will not purchase or otherwise acquire a Railcar (or an interest therein) other than the Railcars (or an interest therein) identified on a schedule to the Series Supplement for the Initial Notes, except that the Issuer will be permitted to:
(i)purchase or otherwise acquire, directly or indirectly, one or more Railcars constituting Qualifying Replacement Railcars in connection with any Replacement Exchange;
(ii)purchase or otherwise acquire, directly or indirectly, one or more additional Railcars pursuant to a Capital Contribution from the Member, so long as, in each case of clause (i) and (ii) (except as indicated below), each of the following requirements are satisfied on or prior to such purchase or other acquisition:
(A)in the case of clause (i) only, no Event of Default or Early Amortization Event shall have occurred and be continuing or would directly result therefrom;
(B)after giving effect to the acquisition, the Portfolio will comply with the Concentration Limits;
(C)the Railcars being acquired have an Appraisal showing an Initial Appraised Value;
(D)each Railcar being acquired is an Eligible Railcar;
(E)the Purchase Price for each such Railcar does not exceed its Initial Appraised Value;
(F)except (i) in connection with Railcars being acquired in a Replacement Exchange for Portfolio Railcars that were not subject to a Lease at the time of the disposition thereof by the Issuer, the Railcars being acquired are each subject to a Permitted Lease; and all actions (including the applicable UCC, STB or Registrar General of Canada filings) shall have been taken to cause the Railcars being purchased or otherwise acquired to be subject to a first priority security interest in favor of the Indenture Trustee for the benefit of the Secured Parties; provided that no such actions will be required to be taken in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada; and
(G)the Railcars being acquired will be free and clear of Encumbrances other than Permitted Encumbrances; and
(iii)purchase or otherwise acquire, directly or indirectly, additional Railcars in connection with the issuance of an Additional Series.
(c)Permitted Railcar Acquisition. A Railcar acquisition by the Issuer complying with the provisions in subsection (b) immediately above constitutes a “Permitted Railcar Acquisition”. If two or more Railcars are being acquired in a Permitted Railcar
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Acquisition, the foregoing requirements in subsection (b) will be determined on an aggregate basis.
(d)Modification Payments and Capital Expenditures. The Issuer will not make any capital expenditures for the purpose of effecting any optional improvement or modification of any Portfolio Railcar or Parts outside of the ordinary course of business, except that the Issuer may make Optional Modifications and Required Modifications in its discretion and subject to the following limitations on the manner in which such Required Modifications and Optional Modifications may be funded:
(i)Required Modifications may be funded out of the Expense Account in accordance with Section 3.06, from distributions to the Issuer from the Flow of Funds, or from Capital Contributions made in accordance with Section 3.17; and
(ii)Optional Modifications may be funded from distributions to the Issuer pursuant to the Flow of Funds, or from Capital Contributions made in accordance with Section 3.17.
In the case of any Optional Modification, the Issuer prior to undertaking such Optional Modification shall have determined, based upon consultation with the Servicer, that the Optional Modification is not expected to decrease the marketability of the Portfolio Railcar as a result of the expenditure on such Optional Modification.
(e)Leases.
(i)The Issuer will not surrender possession of any Portfolio Railcar to any Person (other than the Servicer pursuant to the Servicing Agreement) other than for purposes of maintenance or overhaul or pursuant to a Permitted Lease or for storage purposes pending the Servicer’s procurement of a Permitted Lease thereon.
(ii)The Issuer will, and will cause the Servicer in general to use its pro forma lease agreement or agreements approved by the Administrator, as such pro forma lease agreement or agreements may be revised for purposes of the Issuer specifically or generally from time to time by the Servicer in consultation with the Administrator (collectively, the “Pro Forma Lease”), for use by the Servicer on behalf of the Issuer as a starting point in the negotiation of Future Leases. However, with respect to any Future Lease entered into in connection with (x) the renewal or extension of a related Lease, (y) the leasing of a Portfolio Railcar to a Person that is or was a Lessee under a pre-existing Lease, or (z) the leasing of a Portfolio Railcar to a Person that is or was a Lessee under an operating lease of a Railcar that is being managed or serviced by the Servicer, a form of lease substantially similar to such pre-existing Lease or operating lease, as the case may be, may be used by the Servicer, in lieu of the Pro Forma Lease on behalf of the Issuer as a starting point in the negotiation of such Future Lease. The terms of the Pro Forma Lease may be revised from time to time by the Servicer, provided that any such revisions shall be consistent with a Lease originated thereunder being a Permitted Lease.
(f)Concentration Limits. The Issuer will not sell, purchase, otherwise take any Affirmative Issuer Action that would result, immediately after giving effect to such action, in
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noncompliance with the Concentration Limits; provided, that the foregoing restriction shall not apply to the renewal by the Issuer of an Existing Lease. Also, the Issuer will not consummate a Permitted Discretionary Sale if the effect of such action is or would be to cause noncompliance with any Concentration Limit. For the avoidance of doubt, noncompliance with any Concentration Limit that results from the Total Loss of Portfolio Railcars shall not constitute a breach of this covenant. Notwithstanding the foregoing, where the merger or consolidation of one or more Lessees results in an aggregate Adjusted Value that exceeds the Customer Concentration Limitation, the Issuer will not be obligated to address such noncompliance, however, additional Portfolio Railcars leased to such Lessee may not be purchased by the Issuer unless, upon purchase, the Adjusted Value of the Issuers’ Portfolio Railcars leased to such individual Lessee will meet the applicable Customer Concentration Limitation.
Section 5.04.Operating Covenants. The Issuer covenants with the Indenture Trustee as follows, provided that any of the following covenants with respect to the Portfolio Railcars shall not be deemed to have been breached by virtue of any act or omission of a Lessee or sub-lessee, or of any Person which has possession of a Portfolio Railcar for the purpose of repairs, maintenance, modification or storage, or by virtue of any requisition, seizure, or confiscation of a Portfolio Railcar (other than seizure or confiscation arising from a breach by the Issuer of such covenant) (each, a “Third Party Event”), so long as (i) none of the Issuer, the Servicer or the Administrator has consented to such Third Party Event; and (ii) the Issuer (or the Servicer on its behalf) as the Lessor of such Portfolio Railcar promptly and diligently takes such commercially reasonable actions as a leading railcar operating lessor would reasonably take in respect of such Third Party Event, including, as deemed appropriate (taking into account, among other things, the laws of the jurisdiction in which such Portfolio Railcar is located or operated), seeking to compel such Lessee or other relevant Person to remedy such Third Party Event or seeking to repossess the relevant Portfolio Railcar:
(a)Ownership. The Issuer will (i) on all occasions on which the ownership of each Portfolio Railcar is relevant, make it clear to third parties that title to the same is held by the Issuer, and (ii) not do, or knowingly permit to be done, or omit, or knowingly permit to be omitted, any act or thing which might reasonably be expected to jeopardize the rights of the Issuer as owner of each Portfolio Railcar, except as contemplated by the Operative Agreements.
(b)Compliance with Law; Maintenance of Permits. The Issuer will (i) comply in all material respects with all Applicable Laws, (ii) obtain all material governmental (including regulatory) registrations, certificates, licenses, permits and authorizations required for the use and operation of the Portfolio Railcars owned by it, (iii) not cause or knowingly permit, directly or indirectly, any Lessee to operate any Portfolio Railcar under any related Lease in any material respect contrary to any Applicable Law, and (iv) not knowingly permit, directly or indirectly, any Lessee not to obtain all material governmental (including regulatory) registrations, certificates, licenses, permits and authorizations required for such Lessee’s use and operation of any Portfolio Railcar under any related operating Lease; provided, however, that the Issuer may, in good faith and by appropriate proceedings diligently conducted, contest the validity or application of any such Applicable Law with respect to the Portfolio Railcars in any manner that does not (i) materially interfere with the use, possession or operation of any of the Portfolio Railcars, (ii) materially adversely affect the rights or interests of the Issuer or the Indenture Trustee, on behalf of the Secured Parties, in any of the Portfolio Railcars, (iii) expose
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the Issuer or the Indenture Trustee to criminal sanctions or (iv) violate any maintenance requirements contained in any insurance policy required to be maintained by the Issuer if such violation could reasonably be expected to adversely affect the coverage under such insurance policy. The Issuer will promptly notify the Indenture Trustee in reasonable detail of any such contest.
(c)Forfeiture. The Issuer will not do anything, and will not knowingly permit, directly or indirectly, any Lessee to do anything, which may reasonably be expected to expose any Portfolio Railcar to forfeiture, impoundment, detention, appropriation, damage or destruction (other than any forfeiture, impoundment, detention or appropriation which is being contested in good faith by appropriate proceedings) unless (i) adequate resources have been made available by the Issuer or the applicable Lessee for any payment which may arise or be required in connection with such forfeiture, impounding, detention or appropriation or proceedings taken in respect thereof, and (ii) such forfeiture, impounding, detention or appropriation or the continued existence thereof does not give rise to any material likelihood of the assets to which such forfeiture, impounding, detention or appropriation relates or any interest in such assets being sold, permanently forfeited or otherwise lost. In the event of a forfeiture, impoundment, detention or appropriation of such Portfolio Railcar not constituting a Total Loss, the Issuer will use all commercially reasonable efforts to obtain the prompt release of such Portfolio Railcar.
(d)Maintenance of Assets. The Issuer will, with respect to each Portfolio Railcar under Lease, cause, directly or indirectly, such Portfolio Railcar to be maintained in a state of repair and condition consistent with the reasonable commercial practice of leading railcar operating lessors with respect to similar railcars under lease, taking into consideration, among other things, the identity of the relevant Lessee (including the credit standing and operating experience thereof), the age and condition of the Portfolio Railcar and the jurisdiction in which the Portfolio Railcar is or will be operated or in which the Lessee is based. In addition, the Issuer will, with respect to each Portfolio Railcar that is not subject to a Lease, maintain such Portfolio Railcar in a state of repair and condition consistent with the reasonable commercial practice of leading railcar operating lessors with respect to railcars not under lease.
(e)Notification of Loss, Theft, Damage or Destruction. The Issuer will notify the Indenture Trustee, the Administrator, and the Servicer, in writing, as soon as the Issuer becomes aware of any loss, theft, damage or destruction to any Portfolio Railcar or Portfolio Railcars if the potential cost of repair or replacement of such assets (without regard to any insurance claim related thereto) may exceed $1,000,000.
(f)Insurance. The Issuer covenants with the Indenture Trustee as follows:
(i)Insurance. The Issuer will at all times after the Closing Date, at its own expense, keep or cause the Insurance Manager under the Insurance Agreement to keep each Portfolio Railcar insured with insurers of recognized responsibility with a rating of at least A- by A.M. Best Company (or a comparable rating by a nationally or internationally recognized rating group of comparable stature) or by other insurers approved in writing by the Requisite Majority, which approval shall not be unreasonably withheld, in amounts and against risks and with deductibles and terms and conditions
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not less beneficial to the insured thereunder than the insurance, if any, maintained by the Servicer with respect to similar equipment which it owns or leases, but in no event shall such coverage be for amounts or against risks less than the Prudent Industry Practice.
(ii)Additional Insurance. In the event that the Issuer shall fail to maintain insurance as herein provided, the Indenture Trustee shall, if directed in writing by the Requisite Majority, upon prior written notice to the Issuer and paid for out of funds in the Collections Account, obtain such insurance. If after the Indenture Trustee has obtained such insurance, the Issuer then obtains the coverage provided for in Section 5.04(f)(i) which was replaced by the insurance provided by the Indenture Trustee, and the Issuer provides the Indenture Trustee with evidence of such coverage reasonably satisfactory to the Indenture Trustee, the Indenture Trustee shall cancel the insurance it has obtained pursuant to the first sentence of this Section 5.04(f)(ii). In such event, the Issuer shall reimburse the Collections Account for all costs of cancellation. In addition, if directed in writing by the Requisite Majority to obtain insurance through a specified insurance agent, the Indenture Trustee shall obtain such insurance with such agent with respect to its interest in the Portfolio Railcars at the expense of the Holders, provided that such insurance does not interfere with the Issuer’s ability to insure the Portfolio Railcars as required by this Section 5.04(f) or adversely affect the Issuer’s insurance or the cost thereof, it being understood that all salvage rights to each Portfolio Railcar shall remain with the Issuer’s insurers at all times. Any insurance payments received from policies maintained by the Indenture Trustee pursuant to the previous sentence shall be retained by the applicable Person obtaining such insurance without reducing or otherwise affecting the Issuer’s obligations hereunder, other than with respect to Portfolio Railcars, with respect to which such payments have been made.
(g)No Accounts. Except as contemplated herein, the Issuer will not have an interest in any deposit account or securities account (other than the Indenture Accounts, any other bank account required in connection with any Liquidity Facility Documents and other than any account which may be required to be established as a necessary consequence of or in order to invest in or otherwise acquire a Permitted Investment) unless (i) any such further account and the Issuer’s interest therein shall be further charged or otherwise secured in favor of the Indenture Trustee for the benefit of the Secured Parties and (ii) any such further account is held in the custody of and under the “control” (as such term is defined in the UCC) of the Indenture Trustee.
(h)Notices. If at any time any creditor of the Issuer seeks to enforce any judgment or order of any competent court or other competent tribunal against any of the Collateral, the Issuer shall (i) promptly give written notice to such creditor and to such court or tribunal of the Indenture Trustee’s interests in the Collateral, (ii) if at any time an examiner, administrator, administrative receiver, receiver, trustee, custodian, sequestrator, conservator or other similar appointee (an “Insolvency Appointee”) is appointed in respect of any secured creditor or any of their assets, promptly give notice to such appointee of the Indenture Trustee’s interests in the Collateral and (iii) notify the Indenture Trustee thereof in either case of clauses (i) and (ii) above. The Issuer will not voluntarily appoint or cause to be appointed or commence any proceeding to appoint any Insolvency Appointee over all or any of its property.
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(i)Compliance with Agreements. The Issuer will comply with and perform all its obligations under this Master Indenture and any Series Supplement, the Issuer Documents and the other Operative Agreements to which the Issuer is a party.
(j)Information. The Issuer will at all times give to the Indenture Trustee such information as the Indenture Trustee may reasonably require for the purpose of the discharge of the powers, rights, duties, authorities and discretions vested in it hereunder, under any other Issuer Document or by operation of Applicable Law.
(k)Further Assurances.
(i)The Issuer will comply with all reasonable directions given to it by the Indenture Trustee to perfect the Security Interests in the Collateral (except to the extent provided in the Granting Clauses herein). The Issuer will execute such further documents and do all acts and things as are required by law or as the Indenture Trustee may reasonably require at any time or times to give effect to this Master Indenture, the Issuer Documents and the relevant Operative Agreements.
(ii)Without limiting the foregoing, from time to time, the Issuer shall authorize and file such financing statements and cause to be authorized and filed such continuation statements, and shall make or cause to be made such filings with the STB and with the Registrar General of Canada and take or cause to be taken such similar actions as are described in the Granting Clauses under “Priority”, all in such manner and in such places as may be required by law to fully perfect, preserve, maintain and protect the security interest of the Indenture Trustee for the benefit of the Secured Parties in the Portfolio Railcars, related Leases and other Collateral granted hereby (including without limitation any such Portfolio Railcars acquired by the Issuer from time to time after the Initial Closing Date), including in the proceeds thereof, it being understood that the Issuer shall not be required to make (to cause to be made) any filings in Mexico or under any Provincial Personal Property Security Act or any other non-federal legislation in Canada. The Issuer shall deliver (or cause to be delivered) to the Indenture Trustee file-stamped copies of, or filing receipts for, any document filed as provided above, following such filing in accordance herewith. In the event that the Issuer fails to perform its obligations under this subsection, the Indenture Trustee may perform such obligations, at the expense of the Issuer, and the Issuer hereby authorizes the Indenture Trustee and grants to the Indenture Trustee an irrevocable power of attorney to take any and all steps in order to perform such obligations in the Issuer’s own name and on behalf of the Issuer, as are necessary or desirable, in the determination of the Indenture Trustee, as applicable.
(l)Original Leases. Following the Delivery Date with respect to a Lease (or, in the case of a Future Lease, the date of origination of such Future Lease), the Issuer will cause the Servicer to retain and maintain possession and control of an original or a copy of the relevant Lease, if any, provided that if any Lease is on a Mixed Rider and the Servicer is required to deliver such Lease to a secured party in respect of railcars subject to such Lease that are not Portfolio Railcars, the Servicer may deliver such Lease to the other secured party with a letter in the Servicer’s customary form advising such other secured party that (x) the applicable Portfolio Railcars, the Lease and the benefit thereof insofar as it relates to such
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Portfolio Railcars, have been pledged to the Indenture Trustee, (y) delivery of such Lease does not constitute a purchase of such Lease by the recipient secured party, nor does it constitute or evidence any assignment or transfer of rights thereto to the recipient secured party, insofar as it relates to the Portfolio Railcars and (z) notwithstanding such delivery of such Lease, the Indenture Trustee does not sell, transfer, assign, waive or subordinate in any respect its security interest in the applicable Portfolio Railcars or such Lease or any other property pledged to it. Without limiting the generality of the foregoing and by way of perfecting the Indenture Trustee’s security interest in certain collateral, including the Chattel Paper relating to any Lease, if any, the Issuer will (i) execute and deliver to the Indenture Trustee, on behalf of the Secured Parties, such financing or continuation statements or continuation statements in lieu, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Indenture Trustee may reasonably request, in order to perfect and preserve the pledge, transfer, assignment and Security Interests granted or purported to be granted hereby, (ii) if any Collateral shall be evidenced by a promissory note or other instrument, deliver and pledge to the Indenture Trustee, on behalf of the Secured Parties, such note or instrument, duly indorsed or accompanied by duly executed instruments of transfer or assignment in blank and undated, all in form and substance reasonably necessary to protect such pledge, and (iii) deliver to the Indenture Trustee, on behalf of the Secured Parties, promptly upon receipt thereof all instruments representing or evidencing any of the Collateral, duly endorsed or accompanied by duly executed instruments of transfer or assignment in blank and undated, all in form and substance reasonably necessary to effect such transfer.
(m)No Effect on Security Interest. Except as otherwise provided in this Master Indenture or other Operative Agreements, the Issuer will not agree to the amendment of any Issuer Document unless the Issuer has provided to the Indenture Trustee from legal counsel reasonably acceptable to the Indenture Trustee an opinion to the effect that such amendment will not result in the Security Interests being prejudiced (the reasonable expenses of such opinion to be paid by the Issuer).
(n)Restrictions on Amendments to Assigned Agreements and Certain Other Actions. (i) The Issuer will not take, or knowingly permit to be taken, any action which would amend, terminate or discharge or prejudice the validity or effectiveness or priority of the Security Interests or permit any party to any of the Issuer Documents whose obligations form part of the security created by this Master Indenture to be released from such obligations except, in each case as permitted or contemplated by this Master Indenture, or the other Issuer Documents or the Operative Agreements, (ii) without the prior written consent of the Indenture Trustee (acting at the Direction of the Requisite Majority), the Issuer shall not, directly or indirectly, (A) cancel or terminate, or consent to or accept any cancellation or termination of, or amend, modify or change in any manner, any Assigned Agreement or any term or condition thereof or (B) waive any default under, or any breach of or noncompliance with any term or condition of, any Assigned Agreement or authorize or approve, or consent to, any of the foregoing and (iii) the Issuer will not knowingly take, or knowingly permit to be taken, any action which, other than the performance of its obligations under the Issuer Documents and the Operative Agreements, would reasonably be expected to result in the lowering or withdrawal of the then current rating of any Securities by the applicable Rating Agency.
(o)Subsidiaries. Except with the consent of the Indenture Trustee (acting at the Direction of the Requisite Majority), the Issuer will not have or establish any Subsidiaries.
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(p)Restriction on Asset Dealings. The Issuer shall not sell, transfer, release or otherwise dispose of any of, or grant options, warrants or other rights with respect to, any of its assets to any Person other than as expressly permitted or contemplated in the Operative Agreements.
(q)Organizational Documents. Subject to Section 5.02(j) and the following sentence, the Issuer shall not take any action to amend, modify or supplement its organizational documents or change its jurisdiction of organization without first obtaining Rating Agency Confirmation. The Issuer shall not, without obtaining the prior written consent of the Requisite Majority (which consent shall not be unreasonably withheld) as well as Rating Agency Confirmation, take any action to waive, repeal, amend, vary, supplement or otherwise modify the provisions of its LLC Agreement which requires consent or approval of the special member of the Issuer, or limits the actions of the Issuer with respect to voluntary insolvency proceedings or involuntary insolvency proceedings of the Issuer.
(r)Servicing Agreement and Administrative Services Agreement. The Issuer shall at all times be a party to the Servicing Agreement and shall, if necessary, take any steps required of it in connection with the appointment of any Successor Servicer thereunder. The Issuer shall at all times be a party to the Administrative Services Agreement or a substitute agreement substantially similar thereto.
(s)Insurance Agreement. The Issuer shall at all times be a party to the Insurance Agreement and shall, if necessary, take any steps required of it in connection with the appointment of any successor Insurance Manager thereunder.
(t)Condition. The Issuer, at its own cost and expense, shall maintain, repair and keep each Portfolio Railcar, and cause the Servicer under the Servicing Agreement to maintain, repair and keep each Portfolio Railcar: (i) according to Prudent Industry Practice and in all material respects, in good working order, and in good physical condition for railcars of a similar age and usage, normal wear and tear excepted, (ii) in a manner in all material respects consistent with maintenance practices used by the Servicer, in respect of railcars owned, leased or managed by the Servicer similar in type to such Portfolio Railcar or with respect to any Portfolio Railcar that is subject to a Net Lease, maintenance practices used by the applicable Lessee, in respect of railcars similar in type to such Portfolio Railcar used by such Lessee on its domestic routes in the United States (provided, however, that after the return to the Servicer of any Portfolio Railcar which was subject to a Net Lease immediately prior to such return, such Portfolio Railcar shall be maintained and repaired in all material respects in a manner consistent with maintenance practices used by the Servicer in respect of railcars owned, leased or managed by the Servicer similar in type to such Portfolio Railcar), (iii) in accordance with all manufacturer’s warranties in effect but only to the extent that the lack of compliance therewith would reasonably be expected to adversely affect the coverage thereunder and in accordance with all applicable provisions, if any, of insurance policies required to be maintained pursuant to Section 5.04 and (iv) in compliance in all material respects with any applicable laws and regulations from time to time in effect, including, without limitation, the Field Manual of the AAR, FRA rules and regulations and Interchange Rules as they apply to the maintenance and operation of the Portfolio Railcars in interchange regardless of upon whom such applicable laws and regulations are nominally imposed; provided, however, that, so long as the Servicer or, with respect to any Portfolio Railcar subject to a
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Lease which is a Net Lease, the applicable Lessee, as the case may be, is similarly contesting such law or regulation with respect to all other similar equipment owned or operated by Servicer or, with respect to any Portfolio Railcar subject to a Net Lease, the applicable Lessee, as the case may be, the Issuer (or such Lessee) may, in good faith and by appropriate proceedings diligently conducted, contest the validity or application of any such standard, rule or regulation in any manner that does not (w) materially interfere with the use, possession, operation or return of any of the Portfolio Railcars, (x) materially adversely affect the rights or interests of the Indenture Trustee in the Portfolio Railcars, (y) expose any Secured Party or the Indenture Trustee to criminal sanctions or (z) violate any maintenance requirements contained in any insurance policy required to be maintained by the Issuer under this Master Indenture if such violation would reasonably be expected to adversely affect the coverage thereunder; provided further, that the Issuer shall promptly notify the Indenture Trustee in reasonable detail of any such contest upon the Issuer or the Servicer becoming aware thereof. In no event shall the Issuer discriminate in any material respect as to the use or maintenance of any Portfolio Railcar (including the periodicity of maintenance or recordkeeping in respect of such Portfolio Railcar) as compared to equipment of a similar nature which the Servicer owns or manages. The Issuer will maintain in all material respects all records, logs and other materials required by relevant industry standards or any governmental authority having jurisdiction over the Portfolio Railcars required to be maintained in respect of any Portfolio Railcar.
(u)Use. The Issuer shall be entitled to the possession of the Portfolio Railcars and to the use of the Portfolio Railcars by it or any Affiliate in the United States and subject to the remaining provisions of this subsection, Canada and Mexico, only in the manner for which the Portfolio Railcars were designed and intended and so as to subject the Portfolio Railcars only to ordinary wear and tear. In no event shall the Issuer use, store or permit the use or storage of any Portfolio Railcar in any jurisdiction not included in the insurance coverage required by Section 5.04(f). The Issuer will not allow more than 33⅓% of the Portfolio Railcars to be used predominantly outside of the United States within the meaning of Proposed Treasury Regulation Section 1.168-2(g)(5).
(v)Custody of Portfolio Leases. Subject to the proviso in Section 5.04(l), after entering into a Future Lease, the Issuer shall cause the Servicer to retain possession and maintain possession and control of any original copies or counterparts of such Future Lease.
(w)Portfolio Railcar Total Loss. In the event that any Portfolio Railcar shall suffer a Total Loss, the Issuer shall (or shall cause the Servicer to) promptly and fully inform the Indenture Trustee of such Total Loss once becoming aware of the same.
(x)Certain Reports. No later than ten (10) Business Days following December 31, 2021, and no later than 10 Business Days following each December 31 (or each March 31, June 30, September 30 and December 31, with respect to clause (iii) below) thereafter, the Issuer will furnish (or cause the Servicer under the Servicing Agreement to furnish) to the Indenture Trustee and each Rating Agency an accurate statement, as of the preceding December 31 (or as of the preceding calendar quarter with respect to clause (iii) below) (i) showing the amount, description and reporting marks of the Portfolio Railcars, the amount, description and reporting marks of all Portfolio Railcars that may have suffered a Total Loss during the twelve months ending on such December 31 (or since the Initial Closing Date, in the case of the first such statement), and such other information regarding the condition or
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repair of the Portfolio Railcars as the Indenture Trustee may reasonably request, (ii) stating that in the case of all Portfolio Railcars repainted during the period covered by such statement, the markings required by Section 2.2(i) of the Servicing Agreement shall have been preserved or replaced, (iii) showing the percentage of use in Canada and Mexico based on the total mileage traveled by the Portfolio Railcars for the prior calendar quarter as reported to the Servicer by railroads (or Lessees in the case of Net Leases, as applicable) and (iv) stating that, except as disclosed therein, the Issuer is not aware of any condition of any Portfolio Railcar which would cause such Portfolio Railcar not to comply in any material respect with the rules and regulations of the FRA and the interchange rules of the Field Manual of the AAR as they apply to the maintenance and operation of the Portfolio Railcars in interchange and any other requirements hereunder.
(y)Inspection.
(i)Upon the occurrence of an Event of Default or a Servicer Termination Event, the Indenture Trustee, at the Direction of the Requisite Majority, together with the agents, representatives, accountants and legal and other advisors of each of the foregoing (collectively, the “Inspection Representatives”), shall have the right to (A) conduct a field examination of a reasonable representative sample of the Portfolio Railcars, which may not in any event in the first instance exceed 100 Portfolio Railcars (each such inspection, a “Unit Inspection”), (B) (I) inspect all documents (the “Related Documents”), including, without limitation, all related Leases, insurance policies, warranties or other agreements, relating to the Portfolio Railcars and the other Collateral (each such inspection, a “Related Document Inspection”) and (II) inspect each of the Issuer’s and the Servicer’s books, records and databases (which shall include reasonable access to the Issuer’s and the Servicer’s computers and computer records to the extent necessary to determine compliance with the Operative Agreements) (collectively, the “Books and Records”) with respect to the Portfolio Railcars and the other Collateral and the Related Documents (including without limitation data supporting all reporting requirements under the Operative Agreements) (each such inspection, a “Books and Records Inspection”) and (C) discuss (I) the affairs, finances and accounts of the Issuer (with respect to itself) and the Servicer (with respect to itself and the Issuer) and (II) the Portfolio Railcars and the other Collateral, the Related Documents and the Books and Records, in each case with the principal executive officer and the principal financial officer of each of the Issuer and the Servicer, as applicable (the foregoing clauses (I) and (II) a “Company Inspection”) (the Unit Inspections, the Related Document Inspections, the Books and Records Inspections and the Company Inspections described in clauses (A), (B) and (C), collectively, the “Inspections”).
(ii)All Inspections shall be at the sole cost and expense of the Issuer (including the reasonable legal and accounting fees, costs and expenses incurred by the Indenture Trustee, and its Inspection Representatives). All Inspections shall be conducted upon reasonable request and notice to the Issuer (with respect to itself) and the Servicer (with respect to itself and the Issuer) and shall (A) be conducted during normal business hours, (B) be subject to the Issuer’s and the Servicer’s customary security procedures, if any, and (C) not unreasonably disrupt the Issuer’s or the Servicer’s business.
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(iii)If in connection with or as a result of the initial Railcar Inspection, the Indenture Trustee determines (at the Direction of the Requisite Majority) that an Inspection Issue (as defined below) has occurred, then the Indenture Trustee shall have the right to conduct additional Inspections from time to time consisting of additional samplings of Portfolio Railcars in numbers that the Indenture Trustee or its Inspection Representative determines to be a reasonable sampling sufficient to confirm the scope of any such Inspection Issues. “Inspection Issue” means the discovery that a material portion of the Portfolio Railcars inspected are not being used or maintained in a manner that complies with the requirements of this Master Indenture.
Without prejudice to the right to conduct Inspections, all parties granted inspection rights hereunder shall confer with a view toward coordinating their conduct with respect to the Inspections in order to minimize the costs thereof and business disruption attendant thereto.
(z)Modifications.
(i)Required Modifications. In the event a Required Modification to a Portfolio Railcar is required, the Issuer agrees to make or cause to be made such Required Modification at its own expense; provided, that the Issuer (or applicable Lessee) may, in good faith and by appropriate proceedings diligently conducted, contest the validity or application of the law, rule, requirement or regulation requiring such Required Modification in any manner that does not (w) materially interfere with the use, possession, operation, maintenance or return of any Portfolio Railcar, (x) materially adversely affect the rights or interests of the Issuer or the Indenture Trustee in the Portfolio Railcars, (y) expose the Issuer or the Indenture Trustee to criminal sanctions, or (z) violate any maintenance requirements contained in any insurance policy required to be maintained by the Issuer under this Master Indenture if such violation would reasonably be expected to adversely affect the coverage thereunder; provided further, that the Issuer shall notify (or cause to be notified) the Indenture Trustee thereof, which notice shall also set forth the time period for the making of such Required Modification and the Issuer’s or Servicer’s reasonable estimate of the cost thereof; and, provided further, that if a Required Modification is economically impracticable, the Issuer may sell the affected Portfolio Railcar pursuant to a Scrap Value Disposition.
(ii)Optional Modifications. The Issuer at any time may or may permit a Lessee to, in its discretion and at its own or such Lessee’s cost and expense, modify, alter or improve any Portfolio Railcar in a manner which is not a Required Modification; provided that (A) no such optional modification shall diminish the fair market value, utility or remaining economic useful life of such Portfolio Railcar below the fair market value, utility or remaining economic useful life thereof immediately prior to such optional modification, in more than a de minimis respect, assuming such Portfolio Railcar was then at least in the condition required to be maintained by the terms of this Master Indenture and (B) the Issuer, or the Servicer on its behalf, shall conclude in good faith that the proposed optional modification is likely to enhance the marketability of the Portfolio Railcar (or such optional modification is requested by a Lessee).
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ARTICLE 6

THE INDENTURE TRUSTEE
Section 6.01.Acceptance of Trusts and Duties. If a Default has occurred and is continuing and any applicable grace period has expired, or if an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise such of the rights and powers vested in it by this Master Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs. The duties and responsibilities of the Indenture Trustee shall be as expressly set forth herein, and no implied covenants or obligations shall be read into this Master Indenture against the Indenture Trustee. The Indenture Trustee accepts the obligations hereby created and applicable to it and agrees to perform the same but only upon the terms of this Master Indenture and agrees to receive and disburse all moneys received by it in accordance with the terms hereof. The Indenture Trustee in its individual capacity shall not be answerable or accountable under any circumstances, except for its own willful misconduct or negligence or bad faith or breach of its representations, warranties and/or covenants and the Indenture Trustee shall not be liable for any action or inaction of the Issuer or any other parties to any of the Operative Agreements.
Section 6.02.Absence of Duties. The Indenture Trustee shall have no duty to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of any Lessee. Notwithstanding the foregoing, the Indenture Trustee shall make available on its internet website any reports, Notices, requests, demands, certificates, financial statements and other documents required to be delivered by the Indenture Trustee under the Operative Agreements, and the Indenture Trustee, upon written request, shall furnish to each Holder, promptly upon receipt thereof, duplicates or copies of any other reports, Notices, requests, demands, certificates, financial statements and other instruments furnished to the Indenture Trustee under this Master Indenture and any Series Supplement.
Section 6.03.Representations or Warranties. The Indenture Trustee does not make and shall not be deemed to have made any representation or warranty as to the validity, legality or enforceability of this Master Indenture, the Securities, any other securities or any other document or instrument or as to the correctness of any statement contained in any thereof, except that the Indenture Trustee in its individual capacity hereby represents and warrants (i) that each such specified document to which it is a party has been or will be duly executed and delivered by one of its officers who is and will be duly authorized to execute and deliver such document on its behalf, (ii) this Master Indenture is the legal, valid and binding obligation of U.S. Bank, enforceable against U.S. Bank in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally, and (iii) no consent, approval or other action by or any notice of or filing with any court or administrative or governmental body is required in connection with the authorization, execution and delivery by U.S. Bank of this Master Indenture or other Operative Agreements to which it is a party, or the fulfillment or compliance by U.S. Bank with the respective terms and provisions thereof, except as may have already been obtained.
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Section 6.04.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, in the case of the Issuer, and in the case of any other party to any Operative Agreement, the governing body of such Person, certified in an accompanying Officer’s Certificate as duly adopted and in full force and effect, as conclusive evidence that such resolution has been duly adopted 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 shall be entitled to receive and may for all purposes hereof conclusively rely on a certificate, signed by an officer of any duly authorized Person, 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 Servicer or the Administrator upon written request such information and copies of such documents as the Indenture Trustee may have and as are necessary for the Servicer or the Administrator to perform its duties under Articles 2 and 3. The Indenture Trustee shall assume, and shall be fully protected in assuming, that the Issuer is authorized by its constitutional documents to enter into this Master Indenture and to take all action permitted to be taken by it pursuant to the provisions hereof, and shall not inquire into the authorization of the Issuer with respect thereto.
The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the Direction of the Holders in accordance herewith relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Master Indenture and any Series Supplement.
The Indenture Trustee may execute any of the obligations or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder.
The Indenture Trustee may consult with counsel, accountants and other experts as to any matter relating to this Master Indenture and any Opinion of Counsel or any advice of such counsel, accountants and other experts shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel.
The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Master Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or Direction of any of the Holders, pursuant to the provisions of this Master Indenture, unless such Holders shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby.
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The Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Master Indenture shall in any event require the Indenture Trustee to perform, or be responsible or liable for the manner of performance of, any obligations of the Issuer, the Servicer or the Administrator under this Master Indenture and any Series Supplement or any of the Operative Agreements.
The Indenture Trustee shall not be liable for any losses or Taxes (except for Taxes relating to any compensation, fees or commissions of any entity acting in its capacity as Indenture Trustee hereunder) or in connection with the selection of Permitted Investments or for any investment losses resulting from Permitted Investments unless the entity that is the Indenture Trustee is the issuer or the obligor of such a Permitted Investment.
When the Indenture Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.01(f) or 4.01(g), such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors’ rights generally.
The Indenture Trustee shall not be charged with knowledge of an Event of Default unless a Responsible Officer of the Indenture Trustee obtains actual knowledge of such event or receives written notice of such event from the Issuer, the Administrator or Holders owning Securities aggregating not less than 10% of the Outstanding Principal Balance of the Notes or, as the case may be, the Outstanding Stated Amount of Class E Certificates.
The Indenture Trustee shall have no duty to monitor the performance of the Issuer, the Servicer, the Administrator or any other party to the Operative Agreements, nor shall it have any liability in connection with the malfeasance or nonfeasance by such parties. The Indenture Trustee shall have no liability in connection with compliance by the Issuer, the Servicer, the Administrator or any Lessee under a Lease with statutory or regulatory requirements related to any Railcar or any Lease. The Indenture Trustee shall not make or be deemed to have made any representations or warranties with respect to any Railcar or any Lease or the validity or sufficiency of any assignment or other disposition of any Railcar or any Lease.
The Indenture Trustee shall not be liable for any error of judgment reasonably made in good faith by an officer or officers of the Indenture Trustee, unless it shall be determined by a court of competent jurisdiction in a non-appealable judgment that the Indenture Trustee was negligent in making such judgment.
The Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless so requested in writing by the Holders evidencing not less than 25% of the principal amount of the Equipment Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by
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the security afforded to it by the terms of this Indenture, the Servicing Agreement or any other Operative Agreement, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding; the reasonable expense of every such examination shall be paid by the Person making such request or, if paid by the Indenture Trustee, shall be reimbursed by the Person making such request upon demand.
The Indenture Trustee shall have no obligation to invest and reinvest any cash held in the Indenture Accounts in the absence of timely and specific written investment direction from the Administrator or as expressly provided herein. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon in accordance with the Operative Agreements. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity in accordance with the Operative Agreements or by any other Person or the failure of the Administrator to provide timely written investment direction.
In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out or caused by a Force Majeure Event; it being understood that the Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. “Force Majeure Event” means and includes any events, circumstances or causes whatsoever beyond a Person’s reasonable control, as the case may be, including, without limitation, governmental restrictions, regulations or controls, mechanical breakdowns, shortages of or inability to obtain labor, fuel, steam, water, electricity or materials, acts of God, inability to obtain governmental approvals or consents, adjustment of insurance claims, enemy action, national emergency, epidemics, pandemics, landslides, lightning, earthquake, civil commotion, fires, floods or any other casualties, events or circumstances; provided, however, that such Person shall have used reasonable efforts to perform its obligations notwithstanding such occurrences.
In the event that the Indenture Trustee is also acting as Paying Agent or Securities Registrar hereunder or under any Operative Agreement, the rights and protections afforded to the Indenture Trustee pursuant to this Article 6 shall also be afforded to such Paying Agent and Securities Registrar.
In no event shall the Indenture Trustee be liable of failure to perform its duties hereunder if such failure is a direct or proximate result of another party’s failure to perform its obligations hereunder.
The Indenture Trustee shall not be accountable or responsible in any manner whatsoever for any action of the Issuer, the Administrator or the Servicer, or for the application of moneys by the Servicer until such time as funds are received by the Indenture Trustee.
If the Indenture Trustee receives different or conflicting instructions or directions from more than one group of Holders of a given Class, each of which is provided in accordance with this Master Indenture, the Indenture Trustee shall act in accordance with the instructions or directions provided by the group of Holders representing the larger aggregate principal amount of Equipment Notes then Outstanding.
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The Indenture Trustee shall not be required to take any action it is directed to take under this Indenture if the Indenture Trustee reasonably determines in good faith that the action so directed would involve the Indenture Trustee in personal liability, be unjustly prejudicial to the non-directing Holders, is inconsistent with this Master Indenture or other Operative Agreement or is contrary to law.
The Indenture Trustee’s receipt of reports and information hereunder shall not constitute notice of any information contained therein or determinable therefrom, including but not limited to a party’s compliance with covenants under this Master Indenture.
Section 6.05.Not Acting in Individual Capacity. The Indenture Trustee acts hereunder solely as trustee unless otherwise expressly provided; and all Persons, other than the Holders to the extent expressly provided in this Master Indenture, having any claim against the Indenture Trustee by reason of the transactions contemplated hereby shall look, subject to the lien and the Flow of Funds, only to the property of the Issuer for payment or satisfaction thereof.
Section 6.06.No Compensation from Holders. The Indenture Trustee agrees that it shall have no right against the Holders for any fee as compensation for its services hereunder.
Section 6.07.Notice of Defaults; Communications During Continuance of Event of Default.
(a)As promptly and soon as practicable after, and in any event within thirty (30) days after, the occurrence of any Default hereunder, the Indenture Trustee shall send to the Issuer, the Liquidity Facility Providers and the Holders notice of such Default hereunder actually known to a Responsible Officer of the Indenture Trustee, unless such Default shall have been cured or waived;
(b)Following the transmission of any notice of Default pursuant to Section 6.07(a), unless such Default shall have been cured or waived, the Indenture Trustee shall promptly send:
(i)to the Holders, any written communications addressed to the Holders and received by the Indenture Trustee from a Liquidity Facility Provider; and
(ii)to the Holders and the Liquidity Facility Providers, any written communication received by the Indenture Trustee from or addressed to any Rating Agency in respect of the Securities.
Section 6.8.Indenture Trustee May Hold Securities. The Indenture Trustee, any Paying Agent, the Securities Registrar or any of their Affiliates or any other agent in their respective individual or any other capacity, may become the owner or pledgee of securities and, may otherwise deal with the Issuer with the same rights it would have if it were not the Indenture Trustee, Paying Agent, Securities Registrar or such other agent.
Section 6.9.Corporate Trustee Required; Eligibility. There shall at all times be an Indenture Trustee which shall meet the Eligibility Requirements. If such Person publishes
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reports of conditions at least annually, pursuant to law or to the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 6.09, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published. In case at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of this Section 6.09 to act as Indenture Trustee, the Indenture Trustee shall resign within thirty (30) days as Indenture Trustee in the manner and with the effect specified in Section 7.01.
Section 6.10.Reports by the Issuer. The Issuer shall furnish to the Indenture Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal accounting officer or principal financial officer of the Administrator, as applicable, as to his or her knowledge of the Issuer’s compliance with all conditions and covenants under this Master Indenture and any Series Supplement (it being understood that for purposes of this Section 6.10, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Master Indenture).
Section 6.11.Compensation. The Issuer covenants and agrees to pay to the Indenture Trustee from time to time, and the Indenture Trustee shall be entitled to, the fees and expenses separately agreed in writing between the Issuer and the Indenture Trustee, and will further pay or reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any of the provisions hereof or any other documents executed in connection herewith (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and of all persons not regularly in its employ).
Section 6.12.Certain Rights of the Requisite Majority. Each of the Indenture Trustee and by its acceptance of the Securities, the Holders, hereby agrees that, if the Indenture Trustee shall fail to act in accordance with Direction by the Requisite Majority (with respect to the Securities as a whole) at any time at which it is so required to act hereunder or under any other Operative Agreement, then the Requisite Majority shall be entitled to take such action directly in its own capacity or on behalf of the Indenture Trustee. If the Indenture Trustee fails to act in accordance with Direction by the Requisite Majority when so required to act under any Operative Agreement, then the Indenture Trustee shall, upon the further Direction of the Requisite Majority, irrevocably appoint the Requisite Majority, and any authorized agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the name of the Indenture Trustee or its own name, to take any and all actions that the Indenture Trustee is authorized to take under any Operative Agreement, to the extent the Indenture Trustee has failed to take such action when and as required under such Operative Agreement.
Section 6.13.Lessee Contact. The Indenture Trustee agrees that it shall not engage in any Lessee Contact with any Lessee other than the exceptions set forth in Section 2.1(b) of the Servicing Agreement.
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ARTICLE 7

SUCCESSOR TRUSTEES
Section 7.01.Resignation and Removal of Indenture Trustee. The Indenture Trustee may resign as Indenture Trustee with respect to the Securities at any time without cause by giving at least sixty (60) days’ prior written notice to the Issuer, the Servicer, the Administrator and the Holders, provided that the Indenture Trustee shall continue to serve as Indenture Trustee until a successor has been appointed pursuant to Section 7.02. The Requisite Majority may at any time remove the Indenture Trustee without cause by an instrument in writing delivered to the Issuer, the Servicer, the Administrator and the Indenture Trustee being removed. In addition, the Issuer may remove the Indenture Trustee if: (i) such Indenture Trustee fails to comply with Section 7.02(d), (ii) such Indenture Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or public officer takes charge of such Indenture Trustee or its property or (iv) such Indenture Trustee becomes incapable of acting. References to the Indenture Trustee in this Master Indenture include any successor Indenture Trustee appointed in accordance with this Article 7.
Section 7.02.Appointment of Successor.
(a)In the case of the resignation or removal of the Indenture Trustee under Section 7.01, the Issuer shall promptly appoint a successor Indenture Trustee; provided that the Requisite Majority may appoint, within one (1) year after such resignation or removal, a successor Indenture Trustee which may be other than the successor Indenture Trustee appointed by the Issuer, and such successor Indenture Trustee appointed by the Issuer shall be superseded by the successor Indenture Trustee so appointed by the Requisite Majority. If a successor Indenture Trustee shall not have been appointed and accepted its appointment hereunder within sixty (60) days after the Indenture Trustee gives notice of resignation or is removed, the retiring or removed Indenture Trustee, the Issuer, the Administrator, the Servicer or the Requisite Majority 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 by the Requisite Majority as provided in the first sentence of this paragraph within one (1) year from the date of the appointment by such court.
(b)Any successor Indenture Trustee, however appointed, shall promptly execute and deliver to the Issuer, the Servicer, the Administrator and the predecessor Indenture Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the predecessor Indenture Trustee shall become effective and such successor Indenture Trustee, without further act, shall become vested with all the estates, properties, rights, powers, duties and trusts of such predecessor Indenture Trustee hereunder in the trusts hereunder applicable to it with like effect as if originally named the Indenture Trustee herein; provided that, upon the written request of such successor Indenture Trustee, such predecessor Indenture Trustee shall, upon payment of all amounts due and owing to it, execute and deliver an instrument transferring to such successor 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 predecessor Indenture Trustee shall duly assign, transfer, deliver and pay over to such successor Indenture Trustee all moneys or other property
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then held by such predecessor Indenture Trustee hereunder solely for the benefit of the Securities.
(c)If a successor Indenture Trustee is to be appointed with respect to only a part of the predecessor Indenture Trustee duties hereunder, the Issuer, the predecessor Indenture Trustee and the successor Indenture Trustees shall execute and deliver an Indenture Supplement which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Indenture Trustee as to which the predecessor Indenture Trustee is not retiring shall continue to be vested in the predecessor Indenture Trustee, and shall add to or change any of the provisions of this Master Indenture as shall be necessary to provide for or facilitate the administration of the Securities hereunder by more than one Indenture Trustee.
(d)Each Indenture Trustee shall be an Eligible Institution and shall meet the Eligibility Requirements, if there be such an institution willing, able and legally qualified to perform the duties of an Indenture Trustee hereunder; provided that each Rating Agency shall receive notice of any replacement Indenture Trustee.
(e)Any Person into which the Indenture Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any Person to which substantially all the business of the Indenture Trustee may be transferred, shall, subject to the terms of paragraph (d) of this Section, be the Indenture Trustee under this Master Indenture and any Series Supplement without further act.
ARTICLE 8

INDEMNITY
Section 8.01.Indemnity. The Issuer shall indemnify the Indenture Trustee (and its officers, directors, employees and agents) for, and hold it harmless from and against, any loss, liability, claim, obligation, damage, injury, penalties, actions, suits, judgments or expense (including attorney’s fees and expenses and the costs and expenses of enforcing the Issuer’s indemnification and contractual obligations hereunder) incurred by it without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Master Indenture and its duties under this Master Indenture and any Series Supplement and the Securities, including the costs and expenses of defending itself against any claim or liability and of complying with any process served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties and hold it harmless against, any loss, liability or reasonable expense incurred without negligence or bad faith on its part, arising out of or in connection with actions taken or omitted to be taken in reliance on any Officer’s Certificate furnished hereunder, or the failure to furnish any such Officer’s Certificate required to be furnished hereunder. The Indenture Trustee shall notify the Holders, the Issuer, the Servicer, each Hedge Provider and each Liquidity Facility Provider and, in the case of any such claim in excess of 5% of the Adjusted Value of the Portfolio Railcars, each Rating Agency, promptly of any claim asserted against the Indenture Trustee for which it may seek indemnity; provided, however, that failure to provide such notice shall not invalidate any right to indemnity hereunder except to the extent the Issuer is prejudiced by such delay. The Issuer shall defend
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the claim and the Indenture Trustee shall cooperate in the defense (unless the Indenture Trustee determines that an actual or potential conflict of interest exists, in which case the Indenture Trustee shall be entitled to retain separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel). The Issuer need not pay for any settlements made without its consent; provided that such consent shall not be unreasonably withheld. The Issuer need not reimburse any expense or indemnity against any loss or liability incurred by the Indenture Trustee through negligence or bad faith.
Section 8.02.Holders’ Indemnity. The Indenture Trustee shall be entitled, subject to such Indenture Trustee’s duty set forth in Section 6.01 to act with the required standard of care, to be indemnified by the Holders of the Equipment Notes before proceeding to exercise any right or power under this Master Indenture and any Series Supplement or the Servicing Agreement at the request or Direction of such Holders.
Section 8.03.Survival. The provisions of Sections 8.01 and 8.02 shall survive the termination of this Master Indenture or the earlier resignation or removal of the Indenture Trustee.
ARTICLE 9

SUPPLEMENTAL INDENTURES
Section 9.01.Supplemental Indentures Without the Consent of the Holders.
(a)Without the consent of any Holder and based on an Opinion of Counsel in form and substance reasonably acceptable to the Indenture Trustee to the effect that such Indenture Supplement is for one of the purposes set forth in clauses (i) through (x) below, the Issuer and the Indenture Trustee, at any time and from time to time, may enter into one or more Indenture Supplements for any of the following purposes:
(i)to add to the covenants of the Issuer in this Master Indenture for the benefit of the Holders of all Securities then Outstanding, or to surrender any right or power conferred upon the Issuer in this Master Indenture;
(ii)to cure any ambiguity, to correct or supplement any provision in this Master Indenture which may be inconsistent with any other provision in this Master Indenture;
(iii)to correct or amplify the description of any property at any time subject to the Encumbrance of this Master Indenture, or to better assure, convey and confirm unto the Indenture Trustee any property subject or required to be subject to the Encumbrance of this Master Indenture, or to subject additional property to the Encumbrance of this Master Indenture;
(iv)to add additional conditions, limitations and restrictions thereafter to be observed by the Issuer;
(v)if required, to convey, transfer, assign, mortgage or pledge any additional property to or with the Indenture Trustee;
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(vi)to evidence the succession of the Indenture Trustee;
(vii)to amend or modify the provisions of the Master Indenture or any other Operative Agreement relating to the timing of movement of monies received, provided, that the effect of such movement does not change the Available Collections Amount available on any Payment Date and the Issuer obtains Rating Agency Confirmation;
(viii)any amendment or modification of an immaterial nature necessary to facilitate the issuing of Additional Notes (all in a manner consistent with the provisions of the Master Indenture);
(ix)to conform to the description of any Operative Agreement in the offering circular for the Equipment Notes; or
(x)to effect any amendment, modification or replacement to the Account Administration Agreement and/or the Account Collateral Agent, provided, that the effect of such amendment, modification or replacement does not change the Available Collections Amount available on any Payment Date and the Issuer obtains Rating Agency Confirmation.
(b)No Indenture Supplement shall be entered into under this Section 9.01 unless (i) each Rating Agency shall have received prior written notice thereof and, except as set forth in the proviso at the end of this sentence, the Issuer shall have obtained a Rating Agency Confirmation in respect thereof; provided, that no such Rating Agency Confirmation shall be required if such Indenture Supplement shall have been entered into by the Indenture Trustee at the Direction of a Requisite Majority; and (ii) if applicable, any consent required by Section 10.03 shall have been obtained.
Section 9.02.Supplemental Indentures with the Consent of Holders.
(a)With the consent evidenced by a Direction of a Requisite Majority, and, if applicable, subject to obtaining any consent required by Section 10.03, the Issuer and the Indenture Trustee may enter into an Indenture Supplement for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Master Indenture or the Securities or of modifying in any manner the rights of the Holders under this Master Indenture or the Securities; provided, however, that no such Indenture Supplement shall, without the prior written Direction of the Holders of such Outstanding Securities adversely affected thereby and the Direction of a Requisite Majority for the Securities then Outstanding:
(i)reduce the principal amount of any Securities or the rate of interest thereon, change the priority of any payments required pursuant to this Master Indenture or amend or otherwise modify the Flow of Funds except as permitted pursuant to Section 9.02(b), or the date on which, or the amount of which, or the place of payment where, or the coin or currency in which, any Securities or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Final Maturity Date thereof;
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(ii)reduce the percentage of Holders of Outstanding Securities required for (x) the consent required for delivery of any Indenture Supplement to this Master Indenture, (y) the consent required for any waiver of compliance with certain provisions of this Master Indenture or certain Events of Default hereunder and their consequences as provided for in this Master Indenture or (z) the consent required to waive any payment default on the Securities;
(iii)modify any provision relating to this Master Indenture which specifies that such provision cannot be modified or waived without the Direction of the Holder of such Outstanding Securities affected thereby;
(iv)modify or alter the definition of the term “Requisite Majority” (including, without limitation, the percentages therein);
(v)impair or adversely affect the Collateral except as otherwise permitted in this Master Indenture;
(vi)modify or alter the provisions of this Master Indenture relating to mandatory prepayments;
(vii)permit the creation of any Encumbrance ranking prior to or on a parity with the Encumbrance of this Master Indenture with respect to any part of the Collateral or terminate the Encumbrance of this Master Indenture on any property at any time subject hereto or deprive any Holder of the security afforded by the Encumbrance of this Master Indenture except as permitted in accordance with this Master Indenture; or
(viii)modify any of the provisions of this Master Indenture or a Series Supplement in such a manner as to potentially reduce the amount of, or delay the timing of, any payments of interest or principal due on any Securities.
Prior to the execution of any Indenture Supplement issued pursuant to this Section 9.02, the Issuer shall provide a written notice to each Rating Agency setting forth in general terms the substance of any such Indenture Supplement.
(b)Notwithstanding the foregoing provisions of this Section 9.02, the Issuer, the Indenture Trustee and, by its acceptance of any Securities, each Holder, hereby irrevocably agrees that, in connection with the appointment and engagement of a Successor Servicer and as contemplated in the last paragraph of the Granting Clauses hereof, the Indenture Trustee acting at the Direction of the Requisite Majority acting in its sole discretion shall have the right, without the consent of the Issuer, any Holder or any other Person, to increase the Servicing Fee and/or pay to the Servicer an incentive fee, add the payment of such amounts to and/or change the priority of distribution of such amounts in, the Flow of Funds and amend this Master Indenture or a Series Supplement to the extent necessary to effectuate the foregoing.
(c)Promptly after the execution by the Issuer and the Indenture Trustee of any Indenture Supplement pursuant to this Section, the Issuer shall send to the Administrator, the Indenture Trustee and each Rating Agency, a notice setting forth in general terms the substance of such Indenture Supplement, together with a copy of the text of such Indenture
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Supplement. Any failure of the Issuer to provide such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such Indenture Supplement.
Section 9.03.Execution of Indenture Supplements and Series Supplements. In executing, or accepting the additional terms created by, an Indenture Supplement or Series Supplement permitted by this Article 9 or the modification thereby of the terms created by this Master Indenture, the Indenture Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such Indenture Supplement or Series Supplement is authorized or permitted by this Master Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such Indenture Supplement or Series Supplement which affects the Indenture Trustee’s own rights, duties or immunities under this Master Indenture and any Series Supplement or otherwise.
Section 9.04.Effect of Indenture Supplements. Upon the execution of any Indenture Supplement under this Article 9, this Master Indenture shall be modified in accordance therewith, and such Indenture Supplement shall form a part of this Master Indenture for all purposes.
Section 9.05.Reference in Securities to Supplements. Securities authenticated and delivered after the execution of any Indenture Supplement or Series Supplement pursuant to this Article 9 may, and shall if required by the Issuer, bear a notation in form as to any matter provided for in such Indenture Supplement or Series Supplement. If the Issuer shall so determine, new Securities so modified as to conform may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Securities.
Section 9.06.Issuance of Additional Series of Notes. The Issuer may from time to time issue one or more Additional Series of Notes pursuant to a Series Supplement executed by the Issuer and the Indenture Trustee that will specify the Principal Terms of such Series. The terms of such Series Supplement may modify or amend the terms of this Master Indenture solely as applied to such Series. No Series Supplement may amend this Master Indenture (or a related Series Supplement) as applicable to any other Series except with the consent of the Control Party for each other Series and in accordance with the terms of this Master Indenture. A Series Supplement may contain special or additional voting requirements that apply with respect to amendments or waivers of or under such Series Supplement, or to matters arising under this Master Indenture as to which Holders of such Series are entitled to vote, provided that no such requirement may be inconsistent with the requirements of this Master Indenture. Any Additional Series (or Class thereof) will be issued as a term Series or Class, i.e., it will have a predetermined, fixed or scheduled principal amortization established in the related Series Supplement. Additional Series may be issued for the purpose of (i) financing the Issuer’s acquisition of additional Railcars and Leases, (ii) refinancing one or more preexisting Series, Class or sub-class of a Class (in each case, in whole and not in part), (iii) raising additional funds for the Issuer or (iv) a combination of the foregoing purposes.
The ability of the Issuer to issue such Additional Series and the obligation of the Indenture Trustee to authenticate and deliver the Notes of such Additional Series and to execute and deliver the related Series Supplement is subject to the satisfaction of the following conditions:
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(a)the Issuer shall have given the Indenture Trustee, the Servicer, each Rating Agency and each other party entitled thereto pursuant to the relevant Series Supplement notice of the Additional Series and the proposed Series Issuance Date;
(b)the Issuer shall have obtained Rating Agency Confirmation with respect to such Additional Series and each other Series of Equipment Notes then Outstanding;
(c)no Servicer Termination Event, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the issuance of such Additional Series, and no Servicer Termination Event, Event of Default or Early Amortization Event would occur as a result of closing the transactions associated with the issuance of such Additional Series;
(d)no Additional Interest shall be due and owing, and all scheduled amortization payments on all Outstanding Series of Notes due at or before the date of the issuance of such Additional Series shall have been made as of the date of issuance of such Additional Series;
(e)the issuance of such Additional Series shall not result in noncompliance with the Concentration Limits;
(f)the Issuer shall have delivered to the Indenture Trustee, on or prior to the date of issuance of such Additional Series:
(i)a copy of the Series Supplement for such Additional Series, duly executed by the Issuer;
(ii)a copy of the Assigned Agreements for such Additional Series, duly executed by each party thereto;
(iii)one or more officer’s certificates, duly executed by a responsible officer and providing for such certifications and other matters as the Indenture Trustee shall reasonably require; and
(iv)one or more Opinions of Counsel, duly executed by counsel to the Issuer and providing for such matters as the Holders (or applicable Initial Purchasers) shall reasonably require, including without limitation, an opinion from tax counsel to the Issuer (which opinion is based on and subject to only customary representations, assumptions and qualifications for an opinion of this nature and may rely, as to factual matters, on a certificate of a Person whose duties relate to the matters being certified) to the effect that, for U.S. federal income tax purposes, (a) such action will not cause any Note of any Outstanding Series or Class for which an Opinion of Counsel to the Issuer was rendered in connection with the original issuance of such Note to the effect that such Note is treated as debt for U.S. federal income tax purposes, to be characterized as other than debt, and (b) such action will not cause the Issuer to be treated as an association (or publicly traded partnership) taxable as a corporation;
(g)the Certificate Agent shall have delivered to the Indenture Trustee an Officer’s Certificate confirming that the Member and the other Holders of the Class E
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Certificates, if any, are prepared to fund the increase in the Outstanding Stated Amount of the Class E Certificates required in connection with the issuance of such Additional Series;
(h)while any Series of Equipment Notes are Outstanding, the Rapid Amortization Date of any Class or sub-Class in connection with an Additional Series of Equipment Notes, if applicable, shall occur on the same date or a date which occurs after the Rapid Amortization Date of the then most recently issued Equipment Notes of the same Class or sub-Class then Outstanding; and
(i)the Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate to the effect that all of the conditions specified in clauses (a) through (h), as applicable, above have been satisfied.
Upon satisfaction of the above conditions, the Indenture Trustee shall execute the Series Supplement and authenticate and deliver the Securities of such Additional Series.
ARTICLE 10

MODIFICATION AND WAIVER
Section 10.01.Modification and Waiver with Consent of Holders. In the event that the Indenture Trustee receives a request for its consent to an amendment, modification or waiver under this Master Indenture, the Securities or any Operative Agreement relating to the Securities, the Indenture Trustee shall send a notice of such proposed amendment, modification or waiver to each Holder asking whether or not to consent to such amendment, modification or waiver if such Holder’s consent is required pursuant to this Master Indenture; provided that any amendment, modification or waiver of the provisions described in Section 9.02 is not permitted without the consent of each Holder whose consent is required thereby; provided further, however, that any Event of Default may be waived in accordance with Section 4.04. The foregoing, however, shall not prevent the Issuer from amending any Lease of a Railcar, provided that such amendment is otherwise permitted by this Master Indenture and the Servicing Agreement.
It shall not be necessary for the consent of the Holders under this Section 10.01 to approve the particular form of any proposed amendment, modification or waiver, but it shall be sufficient if such consent approves the substance thereof. Any such amendment, modification or waiver approved by the Direction of a Requisite Majority (and, if applicable, as to which Rating Agency Confirmation is given) will be binding on all Holders.
The Issuer shall give each Rating Agency prior notice of any amendment under this Section 10.01 and any amendments of its constitutive documents by the Issuer, and, after an amendment under this Section 10.01 becomes effective, the Issuer shall send to the Holders and each Rating Agency a notice briefly describing such amendment. Any failure of the Issuer to send such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment.
After an amendment, modification or waiver under this Section 10.01 becomes effective, it shall bind every Holder, whether or not notation thereof is made on any Securities held by such Holder.
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Section 10.02.Modification Without Consent of Holders. Subject to Section 9.01, the Indenture Trustee may agree, without the consent of any Holder, to (i) any modification (other than those referred to in Section 10.01) of any provision of any Operative Agreement or of the relevant Securities to correct a manifest error or an error which is of a formal, minor or technical nature, (ii) effect any amendment, modification or replacement to the Account Administration Agreement and/or the Account Collateral Agent, provided, that the effect of such amendment, modification or replacement does not change the Available Collections Amount available on any Payment Date and the Issuer obtains Rating Agency Confirmation, (iii) conform to the description of any Operative Agreement or related provisions in the offering circular for the Equipment Notes or (iv) any modification (other than those referred to in Section 10.01) to any provision of any Operative Agreement related to any amendment or modification set forth in any Indenture Supplement entered into pursuant to Section 9.01. Any such modification shall be notified to the Holders as soon as practicable thereafter and shall be binding on all the Holders.
Section 10.03.Consent of Servicer, Hedge Providers and Liquidity Facility Providers. No amendment, modification or waiver to this Master Indenture or a Series Supplement shall be permitted if such amendment, modification or waiver could reasonably be expected to violate Section 11.7(a) of the Servicing Agreement. No amendment, modification or waiver to this Master Indenture or a Series Supplement shall be permitted if such amendment, modification or waiver could reasonably be expected to materially adversely affect a Hedge Provider without the prior written consent of such Hedge Provider. No amendment, modification or waiver to this Master Indenture or a Series Supplement shall be permitted if such amendment, modification or waiver could reasonably be expected to materially adversely affect a Liquidity Facility Provider without the prior written consent of such Liquidity Facility Provider; provided that if a Liquidity Facility Provider is in default under one or more of its Liquidity Facility Documents, then (i) Sections 3.11 and 3.15 are the only Sections of this Master Indenture that shall be considered for purposes of this Section 10.03 with respect to such Liquidity Facility Provider’s consent rights and (ii) the only Sections of a Series Supplement, if any, that shall be considered for purposes of this Section 10.03 with respect to such Liquidity Facility Provider’s consent rights must be expressly identified as such in that Series Supplement.
Section 10.04.Subordination and Priority of Payments. The subordination provisions contained in the Flow of Funds and Article 11 may not be amended or modified without the consent of each Holder of the Outstanding Securities. In no event shall the provisions set forth in the Flow of Funds relating to the priority of the Service Provider Fees and Operating Expenses be amended or modified. The foregoing sentences in each case are subject to the provisions of Section 9.02(b).
Section 10.05.Execution of Amendments by Indenture Trustee. In executing, or accepting the additional obligations created by, any amendment, modification or waiver to this Master Indenture permitted by this Article 10 or Section 3.16(b) or the modifications thereby of the obligations created by this Master Indenture, the Securities or any Operative Agreement related to the Securities, the Indenture Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment, modification or waiver is authorized or permitted by this Master Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such
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amendment, modification or waiver which affects the Indenture Trustee’s own rights, duties or immunities under this Master Indenture or otherwise.
ARTICLE 11

SUBORDINATION
Section 11.01.Subordination.
(a)Each Holder and Service Provider agrees that its claims against the Issuer for payment of amounts are subordinate to any claims ranking in priority thereto as set forth in the Flow of Funds hereof, including any post-petition interest (each such prior claim, a “Senior Claim”), which subordination shall continue until the holder of such Senior Claim (a “Senior Claimant”), or the Indenture Trustee on its behalf, has received the full cash amount of such Senior Claim. Each Holder and Service Provider is also obligated to hold for the benefit of the Senior Claimant any amounts received by such Holder or Service Provider, as the case may be, which, under the terms of this Master Indenture, should have been paid to or on behalf of the Senior Claimant and to pay over such amounts to the Indenture Trustee for application as provided in the Flow of Funds. Each Holder also agrees to execute and deliver such instruments and documents, and take all further action, that a Senior Claimant may reasonably request in order to effectuate the above. Each Holder’s right with respect to any Collateral shall be subordinated to the rights of Senior Claimants. Amounts deposited in any Indenture Account for a defeasance of the Securities or for an Optional Redemption of the Securities will not be subject to the foregoing subordination provisions. For the avoidance of doubt, this paragraph is not intended to limit the rights of Hedge Providers to receive payments other than in accordance with the Flow of Funds pursuant to Sections 3.08(c), 3.11(c), 3.14 and 3.16 of this Master Indenture.
(b)If any Senior Claimant receives any payment in respect of any Senior Claim which is subsequently invalidated, declared preferential, set aside and/or required to be repaid to a trustee, receiver or other party, then, to the extent such payment is so invalidated, declared preferential, set aside and/or required to be repaid, such Senior Claim shall be revived and continue in full force and effect, and shall be entitled to the benefits of this Article 11, all as if such payment had not been received.
(c)Each Holder, by its acceptance of any Securities, and each other payee pursuant to the Flow of Funds, by entering into the Operative Agreement to which it is a party, authorizes and expressly directs the Indenture Trustee on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article 11, and appoints the Indenture Trustee its attorney-in-fact for such purposes, including, in the event of any dissolution, winding up, liquidation or reorganization of the Issuer (whether in bankruptcy, insolvency, receivership, reorganization or similar proceedings or upon an assignment for the benefit of creditors or otherwise) any actions tending towards liquidation of the property and assets of the Issuer or the filing of a claim for the unpaid balance of its Securities in the form required in those proceedings.
(d)No right of any holder of any Senior Claim to enforce the subordination of any subordinated claim shall be impaired by an act or failure to act by the Issuer or the
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Indenture Trustee or by any failure by either the Issuer or the Indenture Trustee to comply with this Master Indenture, unless such failure shall materially prejudice the rights of the subordinated claimant.
(e)Each Holder, by accepting any Securities, and each other payee pursuant to the Flow of Funds, by entering into the Operative Agreement to which it is a party, acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder of any Senior Claim, whether such Senior Claim was created or acquired before or after the issuance of such holder’s claim, to acquire and continue to hold such Senior Claim and such holder of any Senior Claim shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold such Senior Claim.
(f)The Holders of each Series and each Class thereof shall have the right to receive, to the extent necessary to make the required payments with respect to the Securities of such Series and each Class thereof at the times and in the amounts specified herein and in any related Series Supplement, (i) the portion of Collections allocable to Holders of such Series and each Class thereof pursuant to this Master Indenture and any related Series Supplement, (ii) funds on deposit in the Liquidity Reserve Account allocated in accordance with the terms of this Master Indenture and any related Series Supplement and (iii) funds on deposit in any Series Account or the Certificate Account for such Series and each Class thereof. Each Holder, by acceptance of its Securities, (x) acknowledges and agrees that except as expressly provided herein and in any related Series Supplement, the Holders of a Series shall not have any interest in any Series Account for the benefit of any other Series (to the extent amounts were deposited therein in accordance with the Operative Agreements), and (y) ratifies and confirms the terms of this Master Indenture and the Operative Agreements executed in connection with such Holder’s Series. With respect to each Collection Period, Collections on deposit in the Collections Account will be allocated to each Series and each Class thereof then Outstanding in accordance with the Flow of Funds and any related Series Supplements.
ARTICLE 12

DISCHARGE OF INDENTURE; DEFEASANCE
Section 12.01.Discharge of Liability on the Securities; Defeasance.
(a)When (i) the Issuer delivers to the Indenture Trustee all Outstanding Securities (other than Securities replaced pursuant to Section 2.08) for cancellation or (ii) all Outstanding Securities have become due and payable, whether at maturity or as a result of the mailing of a Redemption Notice pursuant to Section 3.16(a) and the Issuer irrevocably deposits in the Redemption/Defeasance Account funds sufficient to pay at maturity, or upon Optional Redemption of, all Outstanding Securities, including interest thereon to maturity or the Redemption Date (other than Securities replaced pursuant to Section 2.08), and if in either case the Issuer pays all other sums payable hereunder by the Issuer including any premium, then this Master Indenture shall, subject to Section 12.01(c), cease to be of further effect. The Indenture Trustee shall acknowledge satisfaction and discharge of this Master Indenture on demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel, at
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the cost and expense of the Issuer, to the effect that any conditions precedent to a discharge of this Master Indenture have been met.
(b)Subject to Sections 12.01(c) and 12.02, the Issuer at any time may terminate (i) all its obligations under the Securities or any Class or Series of Securities and this Master Indenture (the “legal defeasance” option) or (ii) its obligations under Sections 5.02, 5.03, 5.04 and 4.01 (other than with respect to a failure to comply with Sections 4.01(a), 4.01(b), 4.01(e) (only with respect to the Issuer) and 4.01(f) (only with respect to the Issuer)) (the “covenant defeasance” option). The Issuer may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment of any Securities subject to such legal defeasance may not be accelerated because of an Event of Default. If the Issuer exercises its covenant defeasance option, payment of the Securities may not be accelerated because of an Event of Default (other than with respect to a failure to comply with Section 5.02(j), 4.01(a), 4.01(b), 4.01(e) and 4.01(f)).
Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the Indenture Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.
(c)Notwithstanding clauses (a) and (b) above, the Issuer’s obligations in Sections 2.01, 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 5.02(j), Article 6, Sections 8.01, 12.04, 12.05 and 12.06 shall survive until all the Equipment Notes have been paid in full. Thereafter, the Issuer’s obligations in Sections 8.01, 12.04, 12.05 and 13.07 shall survive.
(d)Notwithstanding anything to the contrary set forth herein, (i) the Class E Certificates shall not be subject to redemption or defeasance and (ii) this Master Indenture shall not terminate prior to a liquidation of the Issuer notwithstanding prior payment in full of the Notes.
Section 12.02.Conditions to Defeasance. The Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(a)The Issuer irrevocably deposits in trust in the Redemption/Defeasance Account any one or any combination of (A) money, (B) obligations of, and supported by the full faith and credit of, the U.S. Government (“U.S. Government Obligations”) or (C) obligations of corporate issuers (“Corporate Obligations”) (provided that any such Corporate Obligations are rated AA+, or the equivalent, or higher, by each Rating Agency at such time and shall not have a maturity of longer than three (3) years from the date of defeasance) for the payment of all principal, premium, if any, and interest to maturity or redemption on the Class (or Series) of Securities being defeased;
(b)the Issuer delivers to the Indenture Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations or the Corporate Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and
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interest when due and interest to maturity or redemption on the Class (or Series) of the Securities being defeased;
(c)91 days pass after the deposit described in clause (a) above is made and during the 91-day period no Event of Default specified in Section 4.01(f) or (g) with respect to the Issuer occurs which is continuing at the end of the period;
(d)the deposit described in clause (a) above does not constitute a default under any other agreement binding on the Issuer;
(e)the Issuer delivers to the Indenture Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit described in clause (a) does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended;
(f)the Issuer shall have delivered to the Indenture Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(g)if the related Securities are then listed on any securities exchange, the Issuer delivers to the Indenture Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Securities to be delisted;
(h)the Issuer has obtained a Rating Agency Confirmation relating to the defeasance contemplated by this Section 12.02;
(i)the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Securities as contemplated by this Article 12 have been complied with; and
(j)the Issuer shall only defease the Securities of a Class in their entirety, not partially.
Section 12.03.Application of Trust Money. The Indenture Trustee shall hold in the Redemption/Defeasance Account money, U.S. Government Obligations or Corporate Obligations deposited with it pursuant to this Article 12. It shall apply the deposited money and the money from U.S. Government Obligations or Corporate Obligations in accordance with this Master Indenture and the applicable Series Supplements to the payment of principal, premium, if any, and interest on the applicable Securities. Money and securities so held in trust are not subject to Article 10.
Section 12.04.Repayment to the Issuer. The Indenture Trustee shall promptly turn over to the Issuer upon request any excess money or securities held by it at any time. Subject to any applicable abandoned property law, the Indenture Trustee shall pay to the Issuer upon written request any money held by it for the payment of principal or interest that remains unclaimed for two (2) years and, thereafter, Holders entitled to the money must look to the
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Issuer for payment as general creditors. Such unclaimed funds shall remain uninvested and in no event shall the Indenture Trustee be liable for interest on such unclaimed funds.
Section 12.05.Indemnity for Government Obligations and Corporate Obligations. The Issuer shall pay and shall indemnify the Indenture Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or Corporate Obligations, or the principal and interest received on such U.S. Government Obligations or Corporate Obligations.
Section 12.06.Reinstatement. If the Indenture Trustee is unable to apply any money or U.S. Government Obligations or Corporate Obligations in accordance with this Article 12 (and the applicable Series Supplements) by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Master Indenture and the applicable Series Supplements and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article 12 until such time as the Indenture Trustee is permitted to apply all such money, U.S. Government Obligations or Corporate Obligations in accordance with this Article 12, the applicable Series Supplements and the applicable Securities; provided, however, that, if the Issuer has made any payment of interest on or principal of any Securities because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money, U.S. Government Obligations or Corporate Obligations held by the Indenture Trustee.
ARTICLE 13

MISCELLANEOUS
Section 13.01.Right of Indenture Trustee to Perform. If the Issuer for any reason fails to observe or punctually to perform any of its obligations to the Indenture Trustee, whether under this Master Indenture and any Series Supplement or any of the other Operative Agreements or otherwise, the Indenture Trustee shall have power (but shall have no obligation), on behalf of or in the name of the Issuer or otherwise, to perform such obligations and to take any steps which the Indenture Trustee may, in its absolute discretion, consider appropriate with a view to remedying, or mitigating the consequences of, such failure by the Issuer; provided that no exercise or failure to exercise this power by the Indenture Trustee shall in any way prejudice the Indenture Trustee’s other rights under this Master Indenture and any Series Supplement or any of the other Operative Agreements.
Section 13.02.Waiver. Any waiver by any party of any provision of this Master Indenture or any right, remedy or option hereunder shall only prevent and estop such party from thereafter enforcing such provision, right, remedy or option if such waiver is given in writing and only as to the specific instance and for the specific purpose for which such waiver was given. The failure or refusal of any party hereto to insist in any one or more instances, or in a course of dealing, upon the strict performance of any of the terms or provisions of this Master Indenture by any party hereto or the partial exercise of any right, remedy or option hereunder shall not be construed as a waiver or relinquishment of any such term or provision, but the same shall continue in full force and effect. No failure on the part of the Indenture Trustee to exercise, and no delay on its part in exercising, any right or remedy under this
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Master Indenture and any Series Supplement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Master Indenture are cumulative and not exclusive of any rights or remedies provided by law.
Section 13.03.Severability. In the event that any provision of this Master Indenture or the application thereof to any party hereto or to any circumstance or in any jurisdiction governing this Master Indenture shall, to any extent, be invalid or unenforceable under any applicable statute, regulation or rule of law, then such provision shall be deemed inoperative to the extent that it is invalid or unenforceable and the remainder of this Master Indenture, and the application of any such invalid or unenforceable provision to the parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not be affected thereby nor shall the same affect the validity or enforceability of this Master Indenture. The parties hereto further agree that the holding by any court of competent jurisdiction that any remedy pursued by the Indenture Trustee hereunder is unavailable or unenforceable shall not affect in any way the ability of the Indenture Trustee to pursue any other remedy available to it.
Section 13.04.Notices. All notices, demands, certificates, requests, directions, instructions and communications hereunder (“Notices”) shall be in writing and shall be effective (a) upon receipt when sent through the mails, registered or certified mail, return receipt requested, postage prepaid, with such receipt to be effective the date of delivery indicated on the return receipt, or (b) one Business Day after delivery to an overnight courier, or (c) on the date personally delivered to an authorized officer of the party to which sent, or (d) on the Business Day transmitted by legible telecopier transmission with a confirmation of receipt by the addressee thereof, or (e) if by electronic mail, upon written confirmation of receipt by the addressee thereof, in all cases addressed to the recipient as follows:
if to the Issuer, Administrator or Servicer to:

Trinity Industries Leasing Company
14221 N. Dallas Parkway,
Suite 1100
Dallas, Texas 75254
Attention: TILC Capital Markets Group
E-mail: TILC.CapitalMarkets.notices@trin.net
With a copy to:

Trinity Industries Leasing Company
14221 N. Dallas Parkway,
Suite 1100
Dallas, Texas 75254
Attention: Legal Department
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if to the Indenture Trustee, the Securities Registrar or the Paying Agent, to:

U.S. Bank National Association
425 Walnut Street, 6th Floor
CN-OH-W6CT
Cincinnati, OH 45202
Attention: Global Structured Finance
Facsimile: (513) 632-5511
E-mail: Christopher.mckim@usbank.com
Re: Triumph Rail LLC
if to a Hedge Provider, to:
the address specified in the applicable Series Supplement
if to a Liquidity Facility Provider, to:
the address specified in the applicable Series Supplement
if to a Rating Agency, to:

the address specified in the applicable Series Supplement
or addressed to any party at such other address as such party shall hereafter furnish to the other parties by written notice as provided above.
Section 13.05.Assignments. This Master Indenture shall be a continuing obligation of the Issuer and shall (i) be binding upon the Issuer and its successors and assigns and (ii) inure to the benefit of and be enforceable by the Indenture Trustee, and by its successors, transferees and assigns. The Issuer may not assign any of its obligations under this Master Indenture or any Series Supplement, or delegate any of its duties hereunder.
Section 13.06.Currency Conversion.
(a)If any amount is received or recovered by the Administrator, the Servicer or the Indenture Trustee in respect of this Master Indenture or any part thereof (whether as a result of the enforcement of the security created under this Master Indenture and any Series Supplement or pursuant to this Master Indenture or any judgment or order of any court or in the liquidation or dissolution of the Issuer or by way of damages for any breach of any obligation to make any payment under or in respect of the Issuer’s obligations hereunder or any part thereof or otherwise) in a currency (the “Received Currency”) other than the currency in which such amount was expressed to be payable (the “Agreed Currency”), then the amount in the Received Currency actually received or recovered by the Indenture Trustee shall, to the fullest extent permitted by Applicable Law, only constitute a discharge to the Issuer to the extent of the amount of the Agreed Currency which the Administrator, the Servicer or the Indenture Trustee was or would have been able in accordance with its normal procedures to purchase on the date of actual receipt or recovery (or, if that is not practicable, on the next date on which it is so practicable), and, if the amount of the Agreed Currency which the
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Administrator, the Servicer or the Indenture Trustee is or would have been so able to purchase is less than the amount of the Agreed Currency which was originally payable by the Issuer, the Issuer shall pay to the Administrator, the Servicer or the Indenture Trustee such amount as the Administrator, Servicer or the Indenture Trustee shall determine to be necessary to indemnify such Person against any loss sustained by it as a result (including the cost of making any such purchase and any premiums, commissions or other charges paid or incurred in connection therewith) and so that such indemnity, to the fullest extent permitted by Applicable Law, (i) shall constitute a separate and independent obligation of the Issuer distinct from its obligation to discharge the amount which was originally payable by the Issuer and (ii) shall give rise to a separate and independent cause of action and apply irrespective of any indulgence granted by the Administrator, the Servicer or the Indenture Trustee and continue in full force and effect notwithstanding any judgment, order, claim or proof for a liquidated amount in respect of the amount originally payable by the Issuer or any judgment or order and no proof or evidence of any actual loss shall be required.
(b)For the purpose of or pending the discharge of any of the moneys and liabilities hereby secured the Administrator and the Servicer may convert any moneys received, recovered or realized by the Administrator or the Servicer, as the case may be, under this Master Indenture and any Series Supplement (including the proceeds of any previous conversion under this Section 13.06) from their existing currency of denomination into the currency of denomination (if different) of such moneys and liabilities and any conversion from one currency to another for the purposes of any of the foregoing shall be made at the Indenture Trustee’s then prevailing spot selling rate at its office by which such conversion is made. If not otherwise required to be applied in the Received Currency, the Administrator or the Servicer, as the case may be, acting on behalf of the Indenture Trustee, shall promptly convert any moneys in such Received Currency other than Dollars into Dollars. Each previous reference in this Section to a currency extends to funds of that currency and funds of one currency may be converted into different funds of the same currency.
Section 13.07.Application to Court. The Indenture Trustee may at any time after the service of a Default Notice apply to any court of competent jurisdiction for an order that the terms of this Master Indenture be carried into execution under the direction of such court and for the appointment of a receiver of the Collateral or any part thereof and for any other order in relation to the administration of this Master Indenture as the Requisite Majority shall deem fit and it may assent to or approve any application to any court of competent jurisdiction made at the instigation of any of the Holders and shall be indemnified by the Issuer against all costs, charges and expenses incurred by it in relation to any such application or proceedings.
Section 13.08.Governing Law. THIS MASTER INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
Section 13.09.Jurisdiction.
(a)Each of the parties hereto agrees that the United States federal and New York State courts located in The City of New York shall have jurisdiction to hear and determine
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any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Master Indenture and, for such purposes, submits to the jurisdiction of such courts. Each of the parties hereto waives any objection which it might now or hereafter have to the United States federal or New York State courts located in The City of New York being nominated as the forum to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Master Indenture and agrees not to claim that any such court is not a convenient or appropriate forum.
(b)The submission to the jurisdiction of the courts referred to in Section 13.09(a) shall not (and shall not be construed so as to) limit the right of the Indenture Trustee to take proceedings against the Issuer in any other court of competent jurisdiction nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
(c)Each of the parties hereto hereby consents generally in respect of any legal action or proceeding arising out of or in connection with this Master Indenture to the giving of any relief or the issue of any process in connection with such action or proceeding, including the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in such action or proceeding.
Section 13.10.Jury Trial. EACH PARTY TO THIS AGREEMENT, AND EACH HOLDER BY ITS ACCEPTANCE OF ITS NOTES, HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 13.11.Counterparts; Electronic Signatures. This Master Indenture may be executed in two or more counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument. Each of the parties agree that this Master Indenture, each Series Supplement and any other documents to be delivered in connection herewith and therewith (other than the Notes) may be electronically signed, that any digital or electronic signatures (including pdf, facsimile or electronically imaged signatures provided by DocuSign or any other digital signature provider as specified in writing to the Indenture Trustee) appearing on this Master Indenture, each Series Supplement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability and admissibility, and that delivery of any such electronic signature to, or a signed copy of, this Master Indenture, each Series Supplement and such other documents may be made by facsimile, email or other electronic transmission.
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Section 13.12.No Petition in Bankruptcy. The Indenture Trustee agrees, and each Holder shall be deemed to have agreed, that, prior to the date which is one year and one day after the payment in full of all Outstanding Securities, neither the Indenture Trustee nor any Holder shall institute against, or join any other Person in instituting against, the Issuer an action in bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceeding under the laws of the United States or any state of the United States.
Section 13.13.Table of Contents, Headings, Etc. The Table of Contents and headings of the articles and sections of this Master Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms and provisions hereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Master Indenture to be duly executed, all as of the date first written above.
TRIUMPH RAIL LLC
By: Triumph Rail Holdings, LLC, its sole equity member and manager
By: TRIP Rail Holdings LLC, its sole equity member and manager
By: Trinity Industries Leasing Company,
its agent
By:/s/ Sara E. McCoy            
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director
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U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee (and as securities intermediary as described herein)
By: /s/ Chris McKim    
Name: Chris McKim
Title: Vice President

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Annex A to Master Indenture: Defined Terms
“144A Book-Entry Note” means any Equipment Note sold in reliance on Rule 144A, represented by a single permanent global note in fully registered form, without coupons, the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Notes, with the legends required by Section 2.02 for a 144A Book-Entry Note inscribed thereon and with such changes therein and such additional information as may be specified in the Series Supplement pursuant to which such Equipment Notes are issued.
“2011 Master Indenture” means that certain Master Indenture dated as of July 6, 2011 by and between the Issuer and WTC, as modified, amended or supplemented from time to time prior to the Initial Closing Date.
“AAR” means the Association of American Railroads or any successor thereto.
“Account Administration Agreement” means the Customer Collections Account Administration Agreement, dated as of November 12, 2003, by and among the various beneficiary parties thereto from time to time, TILC and WTC (and as the same may be amended, supplemented, restated, amended and restated or modified from time to time) or any replacement account administration agreement with the Account Collateral Agent or a replacement Account Collateral Agent.
“Account Collateral Agent” means the “Account Collateral Agent” under and as defined in an Account Administration Agreement, initially WTC.
“Accounts” means all “accounts” as defined in Article 9 of the UCC, whether due or to become due, whether or not the right of payment has been earned by performance, and whether now owned or hereafter acquired or arising in the future, including Accounts Receivable from Affiliates of the Issuer.
“Accounts Receivable” means all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including, without limitation, all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Property, together with all of the Issuer’s right, title and interest, if any, in any goods or other property giving rise to such right to payment, including any rights to stoppage in transit, replevin, reclamation and resales, and all related security interests, Encumbrances and pledges, whether voluntary or involuntary, in each case whether now existing or owned or hereafter arising or acquired, and all Supporting Obligations related to the foregoing and all Accounts Receivable Records.
“Accounts Receivable Records” means (a) all original copies of all documents, instruments or other writings or electronic records or other records evidencing the Accounts Receivable, (b) all books, correspondence, credit or other files, records, ledger sheets or cards, invoices, and other papers relating to Accounts Receivable,
ANNEX A
Page 1


including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Accounts Receivable, whether in the possession or under the control of the Issuer or any computer bureau or agent from time to time acting for the Issuer or otherwise, (c) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or lenders, and certificates, acknowledgments, or other writings, including, without limitation, lien search reports, from filing or other registration officers, (d) all credit information, reports and memoranda relating thereto and (e) all other written, electronic or other non-written forms of information related in any way to the foregoing or any Accounts Receivable.
“Act” has the meaning, with respect to any Holder, given to such term in Section 1.04(a).
“Additional Interest” means, with respect to a Series of Notes or any Class thereof, interest at the Stated Rate on the aggregate amount of any unpaid interest that is due and payable on the Notes of such Series and Class (including any unpaid portion of the Stated Interest Amount and any Additional Interest Amount).
“Additional Interest Amount” means, with respect to any Class of Notes in any Series of Notes, an amount equal to the Additional Interest on the aggregate amount of unpaid interest (including any unpaid portion of any Stated Interest Amounts and any Additional Interest Amount) that was due and payable on the Notes of such Series or Class on any prior Payment Date.
“Additional Liquidity Facility” has the meaning given to such term in Section 3.15.
“Additional Liquidity Facility Provider” means the issuer or provider of an Additional Liquidity Facility.
“Additional Notes” means the Notes evidencing any Additional Series issued by the Issuer from time to time subsequent to the Initial Closing Date.
“Additional Railcar” means each Railcar acquired by the Issuer (other than the Railcars identified on a schedule to the Series Supplement for the Initial Notes) subsequent to the Initial Closing Date in accordance with the conditions set forth in Section 5.03(b).
“Additional Series” means any Series of Notes issued by Issuer subsequent to the Initial Closing Date pursuant to a Series Supplement.
“Adjusted Value” means, for any individual Railcar as of any date of determination, (a) the Initial Appraised Value of such Railcar, adjusted downward as of each Payment Date after the Delivery Date of such Railcar due to depreciation at the
ANNEX A
Page 2


greater of (i) the amount of depreciation determined based on straight line depreciation from the date of manufacture using an assumed 35-year useful life (25 years for autoracks) to a “10%” assumed residual/salvage value and (ii) the amount of depreciation that would be calculated under any subsequent depreciation methodology or general practice of marking down asset values attributable to a change in Trinity’s corporate policy and practice after the Initial Closing Date (a “Depreciation Change”), plus (b) the cost of any Optional Modification or Required Modification, to the extent that Trinity on its books of account would properly add such cost to the book value of such Railcar in accordance with U.S. GAAP, with the amount of such cost so added pursuant to this clause (b) to be depreciated in the same manner following its incurrence and addition to book. Following the receipt of all proceeds and third party payments associated with a casualty event with respect to a Railcar, its Adjusted Value will be deemed to be zero.
“Administrative Services Agreement” means the Administrative Services Agreement, dated as of the Initial Closing Date, between the Administrator and the Issuer, or any replacement administrative services agreement with a replacement Administrator.
“Administrator” means TILC, in its capacity as administrator under the Administrative Services Agreement, including its successors in interest and permitted assigns, until another Person shall have become the administrator under such agreement, after which “Administrator” shall mean such other Person.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with, such Person or is a director or officer of such Person; “control” of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting Stock, by contract or otherwise.
“Affirmative Issuer Action” means, a Permitted Discretionary Sale by the Issuer or a Replacement Exchange by the Issuer or the re-leasing of a Portfolio Railcar by the Issuer following the termination of or failure to renew the pre-existing Lease on such Portfolio Railcar.
“After-Tax Basis” means, with respect to any payment due to any Person, the amount of such payment supplemented by a further payment or payments so that the sum of all such payments, after reduction for all Taxes payable by such Person by reason of the receipt or accrual of such payments, shall be equal to the payment due to such Person.
“Aggregate Adjusted Borrowing Value” means, as of any date of determination, an amount equal to the sum of (i) the Adjusted Values (measured as of the last day of the month immediately preceding such date of determination) of all Portfolio Railcars, and (ii) the amounts on deposit in any Prefunding Accounts and the Optional Reinvestment Account as of such date.
ANNEX A
Page 3


“Agreed Currency” has the meaning given to such term in Section 13.06(a).
“Allocable Note Balance” means, with respect to any Railcar, an amount equal to the product of the Railcar Advance Rate and the Adjusted Value of such Railcar.
“Allocable Subordinated Note Balance” means, with respect to any Railcar and Subordinated Notes, an amount equal to the product of the Subordinated Railcar Advance Rate and the Adjusted Value of such Railcar.
“Annual Report” has the meaning given to such term in Section 2.13(a).
“Applicable Law” means all applicable laws, rules, statutes, ordinances, regulations and orders of Governmental Authorities, including, without limitation, the applicable laws, rules, regulations and orders of any Railroad Authority.
“Applicable Person” means any Holder or beneficial owner of a beneficial interest in a Subject Security, and each agent or representative of or intermediary with respect to a holder of such a beneficial interest.
“Appraisal” means a desktop appraisal of a Railcar, i.e. an appraisal without a physical inspection of a Railcar, dated within ninety (90) days before the applicable Delivery Date of such Railcar by the applicable Appraiser to determine the Initial Appraised Value of such Railcar, and, if such Delivery Date is not a Closing Date, considering substantially similar factors in such determination as were considered in the Appraisal delivered in connection with the most recent Closing Date (or, if obtaining an Appraisal addressing such factors is no longer commercially feasible as a result of changes in market practice of railcar appraisers, then an appraisal that considers such factors in the valuation determination as are then commercially feasible to obtain in light of railcar appraisal market practices at that time).
“Appraiser” means RailSolutions, Inc., Edward S. Biggs III, LLC (d/b/a Biggs Appraisal), or such other independent railcar appraiser that is of comparable standing and reputation as determined in the good faith judgment of the Servicer.
“Asset Transfer Agreement” means any asset transfer agreement between the Issuer and one or more sellers of Railcars, in form and substance satisfactory to the Issuer and the applicable seller or sellers party thereto. The initial Asset Transfer Agreement is, individually or collectively as the context may require, (i) the Purchase and Contribution Agreement, dated as of July 6, 2011, among the Issuer, TILC and TRIP Leasing and (ii) the Purchase and Contribution Agreement, dated as of May 9, 2014, between the Issuer and TILC.
“Assigned Agreements” has the meaning given to such term in the Granting Clauses hereunder.
ANNEX A
Page 4


“Assignment and Assumption” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Authorized Agent” means, (a) with respect to the Notes of any Series, any authorized Paying Agent or Securities Registrar for the Securities of such Series and (b) with respect to the Class E Certificates, the Certificate Agent.
“Authorized Representative” of any entity means the person or persons authorized to act on behalf of such entity.
“Available Collections Amount” means, for any Payment Date, the amount of Collections in the Collections Account as of the Determination Date for such Payment Date, plus or minus, as applicable, the aggregate amount of all transfers to be made to or from the Collections Account pursuant to the Master Indenture, a Hedge Agreement or a Liquidity Facility during the period beginning on such Determination Date and ending on such Payment Date (including transfers from the Liquidity Reserve Account, the Expense Account or the Optional Reinvestment Account pursuant to Sections 3.04, and 3.05, respectively, and including any Servicer Advance), but at any time prior to an Event of Default, excluding any Net Disposition Proceeds deposited in the Collections Account (other than any amounts transferred to the Optional Reinvestment Account pursuant to Section 3.05).
“Balance” means, with respect to any Indenture Account as of any date, the sum of the cash deposits in such Indenture Account and the value of any Permitted Investments held in such Indenture Account as of such date, as determined in accordance with Section 1.02(k).
“Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code, 11 U.S.C. § 101 et. seq.
“Benefit Plan” has the meaning given to such term in Section 2.11(h)(i).
“Bill of Sale” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Book-Entry Notes” means the Regulation S Book-Entry Notes and the 144A Book-Entry Notes.
“Book LTV Ratio” has the meaning given to such term in paragraph 4(e) of the Granting Clause of this Master Indenture.
“Books and Records” has the meaning given to such term in Section 5.04(y)(i).
“Books and Records Inspection” has the meaning given to such term in Section 5.04(y)(i).
ANNEX A
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“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York, Dallas, Texas, St. Paul, Minnesota or in the location of the corporate trust office of the Indenture Trustee administering this Master Indenture (currently Cincinnati, Ohio for U.S. Bank as Indenture Trustee) are authorized by law to close.
“Capital Contribution” has the meaning given to such term in Section 3.17.
“Cede” means Cede & Co., as nominee for DTC.
“Certificate Account” means the “Certificate Account” described in the Certificate Purchase Agreement.
“Certificate Agent” means TRIP Rail Holdings LLC, in its capacity as certificate agent under the Certificate Purchase Agreement, and its permitted successors and assigns.
“Certificate Purchase Agreement” means the Certificate Purchase and Agency Agreement with respect to the Class E Certificates among the Issuer, the Certificate Agent and Triumph Rail Holdings, LLC, as the initial purchaser, dated as of the Initial Closing Date.
“Chattel Paper” means all “chattel paper” as defined in the UCC.
“Class” means (i) with respect to a Series of Notes, one or more classes of such Series (which class or classes shall be specified by the related Series Supplement) having the same rights to payment as all other Securities of such class and (ii) the Class E Certificates.
“Class Account” has the meaning given to such term in Section 3.01(a).
“Class A Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class B Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class B Purchase Right” has the meaning given to such term in Section 4.11.
“Class B Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.11.
“Class B Purchasers” has the meaning given to such term in Section 4.11.
“Class C Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
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“Class C Purchase Right” has the meaning given to such term in Section 4.12.
“Class C Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.12.
“Class C Purchasers” has the meaning given to such term in Section 4.12.
“Class E Certificates” means the Class E Certificates issued on the Initial Closing Date, executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the Certificate Purchase Agreement, and purchased pursuant to the Certificate Purchase Agreement.
“Class E Purchase Right” has the meaning given to such term in Section 4.13.
“Class E Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.13.
“Class E Purchasers” has the meaning given to such term in Section 4.13.
“Class R Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Clearing Agency Participant” means a Person who has an account with Clearstream.
“Clearstream” means Clearstream Banking, a French société anonyme.
“Closing Date” means in the case of (i) the Initial Notes and the Class E Certificates, the Initial Closing Date, and (ii) with any other Series (or Class thereof), the date identified as such in the related Series Supplement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” has the meaning given to such term in the Granting Clause.
“Collateral Liquidation Notice” means a written Direction from the Requisite Majority directing the Indenture Trustee to sell the Portfolio Railcars in accordance with Section 4.02(b).
“Collection Period” means, with respect to each Payment Date other than the first Payment Date, the period commencing on the first day of the calendar month immediately preceding the month in which such Payment Date occurs and ending on the last day of such calendar month and, in the case of the first Payment Date in respect of a Series, the period commencing on the Series Issuance Date (or the Initial Closing Date with respect to the Initial Notes issued hereunder) for such Series and ending on the last day of the first full calendar month following such Series Issuance Date or the Initial Closing Date, as applicable.
ANNEX A
Page 7


“Collections” for any period means all amounts (without duplication) received by the Issuer or by any Person (including without limitation, the Account Collateral Agent) receiving such amounts on behalf of the Issuer, including, but not limited to, (i) Lease Payments, (ii) amounts received in respect of claims for damages or in respect of any breach of contract for nonpayment of the foregoing, (iii) the Net Disposition Proceeds of any Railcar Disposition (except for any portion of such Net Disposition Proceeds that the Issuer shall direct to be deposited into the Optional Reinvestment Account), (iv) amounts transferred from the Optional Reinvestment Account either at Issuer’s election or due to a failure to acquire or fund an Additional Railcar within the applicable Replacement Period; (v) investment income, if any, on all amounts on deposit in the Indenture Accounts, (vi) any proceeds or other payments received under the Relative Documents and the Certificate Purchase Agreement, (vii) any portion of the Net Proceeds of the issuance of Securities deposited in the Collections Account on a Closing Date, (viii) net payments received by the Issuer under Hedge Agreements (other than payments made as, or as proceeds of, collateral provided by a Hedge Provider pursuant to a credit support annex), (ix) the proceeds of any cash Capital Contributions and (x) any other amounts received by the Issuer, but not including any funds to be applied in connection with an Optional Redemption and other amounts required to be paid over to any third party pursuant to any Relative Document.
“Collections Account” has the meaning given to such term in Section 3.01(a).
“Company Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Comparable Lease” means, with respect to Qualifying Replacement Railcars, a Lease that (a) will generate at least the same amount of average monthly lease revenue as the Reference Sold Railcars of a similar railcar type or, if there are no such Reference Sold Railcars of a similar railcar type, Portfolio Railcars of a similar railcar type or, if there are no such Portfolio Railcars of a similar type, such railcars of a similar type as the Administrator may reasonably determine, and (b) has a remaining Lease term at least equal to two-thirds of the average remaining Lease term of the Reference Sold Railcars.
“Concentration Limits” means, collectively the Mexico Concentration Restriction, the Customer Concentration Limitation and the Industry Concentration Limitation.
“Control Party” means in respect of (i) any Series of Notes, unless otherwise provided in the Series Supplement related to such Series, Holders representing more than fifty percent (50%) of the then aggregate Outstanding Principal Balance of (a) initially, all Outstanding Class A Equipment Notes of such Series, (b) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Class A Equipment Notes of such Series, all Outstanding Class B Equipment Notes of such Series, (c) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Class A Equipment Notes and Class B Equipment Notes of such Series, all Outstanding Class C Equipment Notes of such Series and (d) on and
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after the occurrence of the payment in full of all Outstanding Obligations in respect of the Equipment Notes of such Series, all Outstanding Subordinated Notes; and (ii) the Class E Certificates, Holders representing more than fifty percent (50%) of the then aggregate Outstanding Stated Amount of the Class E Certificates.
“Convey” or “Conveyance” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Corporate Obligations” has the meaning given to such term in Section 12.02(a).
“Corporate Trust Office” means, with respect to the Indenture Trustee, the office of such trustee in the city at which at any particular time this Master Indenture shall be principally administered and, with respect to the Indenture Trustee on the Initial Closing Date, shall be, for the purpose of exchanging Notes, U.S. Bank National Association, 111 Fillmore East, St. Paul, Minnesota 55107, Attention: Bondholder Services, and for all other purposes shall be U.S. Bank National Association, 425 Walnut Street, 6th Floor, CN-OH-W6CT, Cincinnati, Ohio 45202, Attention: Global Structured Finance, Facsimile No: (513) 632-5511, or at any other time at such other address as the Indenture Trustee may designate from time to time by notice to the Holders and the Issuer.
“Credit Bankrupt” means a Person which (i) is subject to any bankruptcy or insolvency proceeding, (ii) is not paying its debts generally as they become due or (iii) has had a custodian (as defined in the Bankruptcy Code) take charge of all or substantially all of the property of such Person.
“Cure Amount” has the meaning given to such term in clause (c) of the Early Amortization Event definition.
“Cure Right” has the meaning given to such term in clause (c) of the Early Amortization Event definition.
“Current LTV Ratio” has the meaning given to such term in paragraph 4(e) of the Granting Clause of this Master Indenture.
“Customer Concentration Limitation” means, except in the case of any Permitted Excess Concentration, that, (a) as of any date of determination, the Adjusted Value of Portfolio Railcars leased to an individual Lessee that has a rating of at least “BBB-” or “Baa3” from S&P or Moody’s, respectively (or leased to an Affiliate of such a Person), in the aggregate, does not exceed on such date seventeen and one-half percent (17.5%) of the aggregate Adjusted Value of the Portfolio Railcars on such date, and (b) except as contemplated in clause (a) above, as of any date of determination, the Adjusted Value of Portfolio Railcars leased to an individual Lessee (or leased to an Affiliate thereof), regardless of rating, in the aggregate, does not exceed on such date fifteen percent (15%) of the aggregate Adjusted Value of the Portfolio Railcars on such date. The Issuer will have the right at any time to obtain Rating Agency Confirmation in
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respect of a proposed change to a more lenient Customer Concentration Limitation (i.e., to increase either or both of the percentages to be greater than the applicable percentage or percentages that are then in effect pursuant to this definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Customer Payment Account” means the “Customer Payments Account” described in an Account Administration Agreement.
“Customer Payments” has the meaning given to such term in an Account Administration Agreement.
“Debt Service Coverage Ratio” means, with respect to any Payment Date, commencing on the seventh Payment Date after the Initial Closing Date, the ratio of (i) the sum of the Collections (excluding (a) net payments owed to the Issuer for the payment of any Hedge Termination Value, and (b) any Capital Contributions other than (A) any Capital Contributions made to fund Required Modifications expenses for such Collection Periods and (B) any Capital Contributions made to fund Cure Amounts during such Collection Periods) deposited into the Collections Account for each of the six consecutive Collection Periods ending on the last day of the calendar month immediately preceding such Payment Date, minus the sum of (x) the amount actually deposited into the Expense Account during such six preceding Collection Periods, (y) the Service Provider Fees for each of such six preceding Collection Periods and (z) the amount actually deposited into the Liquidity Reserve Account during such six preceding Collection Periods, to (ii) the sum of (xx) the aggregate amount of principal payments with respect to the six consecutive Payment Dates ending on and including such Payment Date required in order to reduce the aggregate Outstanding Principal Balance of the Equipment Notes of each Series on such Payment Date to an amount equal to the Scheduled Targeted Principal Balance for such Series for such Payment Date, plus (yy) the aggregate amount of interest on the Outstanding Equipment Notes of each Series (excluding Additional Interest) payable on the six consecutive Payment Dates ending on and including such Payment Date, plus (or minus) (zz) the net payments owed by the Issuer (or owed to the Issuer) under any Hedge Agreements (other than for the payment of any Hedge Termination Value) in respect of the six consecutive Payment Dates ending on and including such Payment Date.
“Default” means a condition, event or act which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Default Notice” has the meaning given to such term in Section 4.02(a).
“Definitive Certificate” means a certificate issued in definitive form pursuant to the terms and conditions of the Certificate Purchase Agreement and this Master Indenture, the form of which shall be substantially in the form of the applicable Form of Certificate for such Class E Certificate, with the legends required under the Certificate Purchase Agreement inscribed thereon.
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“Definitive Note” means a note issued in definitive form pursuant to the terms and conditions of this Master Indenture and the related Series Supplement, the form of which shall be substantially in the form of the applicable Form of Note for such Note, with the legends required by Section 2.02 for a Definitive Note inscribed thereon and with such changes therein and such additional information as may be specified in the Series Supplement pursuant to which such Note is issued.
“Definitive Securities” means any Definitive Note and any Definitive Certificate.
“Delivery Date” means each date on which any Railcar, together with any Lease related thereto and all Related Assets (as defined, if applicable, in the applicable Asset Transfer Agreement), is transferred to the Issuer by the applicable Seller thereof and includes, without limitation, the Initial Closing Date and each other date (in respect of Additional Railcars) on which any such transfer occurs.
“Delivery Schedule” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Depreciation Change” has the meaning given to such term in the definition of Adjusted Value.
“Designated Severability Clause” means, with respect to a Mixed Rider, language to the effect that the Mixed Rider shall constitute one or more separate and severable leases, with each such lease being comprised of railcars owned by a single person or entity, and each such lease shall incorporate the terms of the related master lease agreement and shall be separate and severable from each other lease made pursuant to such rider and from any other railcars or riders relating to such master lease agreement.
“Determination Date” means, with respect to a Payment Date, the last day of the calendar month prior to the month in which such Payment Date occurs.
“Direct Participants” means securities brokers and dealers, banks, trust companies and clearing corporations, and may include certain other organizations which access the DTC system directly.
“Direction” has the meaning given to such term in Section 1.04(c).
“Dollars” or “$” means the lawful currency of the United States of America.
“DTC” means The Depository Trust Company, a limited purpose trust company organized under the New York Banking Law, its nominees and their successors.
“DTC Participants” means Euroclear, Clearstream or other Persons who have accounts with DTC.
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“Early Amortization Event” means, as of any Payment Date, the existence of any one or more of the following events or conditions, unless it has been cured (or unless it has been waived by the Indenture Trustee at the Direction of a Requisite Majority):
(a)    a Servicer Termination Event of the type described in Section 8.5(e)(ii) of the Servicing Agreement;
(b)    the number of Portfolio Railcars that are subject to a Lease is less than 80% of the total number of Portfolio Railcars; or
(c)    as of any Payment Date on or after the seventh (7th) Payment Date following the Closing Date, the Debt Service Coverage Ratio is less than 1.05; for the avoidance of doubt, an Early Amortization Event pursuant to this clause (c) shall terminate on the next upcoming Payment Date as of which the Debt Service Coverage Ratio at least equals 1.05, provided, that the Issuer shall have the right (the “Cure Right”), at any time until the date that is thirty (30) days after such Payment Date, on no more than two occasions in any twelve (12) consecutive calendar months (including and preceding the month in which such Payment Date occurs) to receive Capital Contributions in an amount no greater than that needed to cause the Debt Service Coverage Ratio to be at least equal to 1.05 but no greater than 1.075 immediately after giving effect to such contribution by adding such Capital Contribution (the “Cure Amount”) to the numerator in the calculation of the Debt Service Coverage Ratio. For the avoidance of doubt, no Early Amortization Event will occur or be deemed to have occurred, if after giving effect to the contribution of the Cure Amount as set forth above, the Debt Service Coverage Ratio is at least equal to 1.05).
“Eligibility Requirements” has the meaning given to such term in Section 2.03(b).
“Eligible Green Assets” means the Portfolio Railcars which meet the criteria set forth in the TILC Green Bond Program.
“Eligible Hedge Provider” means a bank or other entity that satisfies the standards of the Rating Agency rating the applicable Floating Rate Notes in order to maintain the then-current rating of such Floating Rate Notes.
“Eligible Institution” means a) any depository institution or trust company, with a capital and surplus of not less than $250,000,000, whose long-term unsecured debt rating from each Rating Agency of not less than A (or the equivalent) and whose deposits are insured by the Federal Deposit Insurance Corporation or (b) a federally or state chartered depository institution, with a capital and surplus of not less than $250,000,000, subject to regulations regarding fiduciary funds on deposit substantially similar to 12 C.F.R. § 9.10(b), that in each case has a long-term unsecured debt rating of not less than A (or the equivalent) or a short-term unsecured debt rating of A-1 (or the equivalent) from each Rating Agency.
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“Eligible Railcar” means any Railcar that, on its applicable Delivery Date, is ready and available to operate as of such date (or will be upon routine maintenance) in commercial service and otherwise perform the functions for which it was designed.
“Encumbrance” means any mortgage, pledge, lien, encumbrance, charge or security interest, including, without limitation, any conditional sale, any sale without recourse against the sellers, or any agreement to give any security interest over or with respect to any assets of any applicable Person.
“Equipment Note” means any one of the promissory notes (other than Subordinated Notes) executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Series Supplement.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default” means the existence of any of the events or conditions described in Section 4.01.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Date” means the date on which interests in each Regulation S Temporary Book-Entry Note will be exchangeable for interests in an Unrestricted Book-Entry Note, which shall be the later of (i) the fortieth (40th) day after the later of (a) the applicable Closing Date and (b) the completion of the distribution of the related Series of Securities and (ii) the date on which the requisite certifications are due to and provided to the Indenture Trustee.
“Excluded Expenses” means (a) salary, bonuses, company cars and benefits of the Servicer’s employees, (b) office, office equipment and office rental expenses of the Servicer, (c) telecommunications expenses of the Servicer, (d) taxes on the income, receipts, profits, gains, net worth or franchise of the Servicer and payroll, employment and social security taxes for employees of the Servicer, (e) any and all financing costs (including interest and fees) relating to any indebtedness of the Servicer, and (f) all other overhead expenses of the Servicer.
“Existing Lease” means a Lease in effect on a Closing Date in respect of any Railcar being conveyed to the Issuer on such date, together with any renewals thereof.
“Expense Account” has the meaning given to such term in Section 3.01(a).
“FATCA” means Sections 1471 through 1474 of the Code as of the date hereof (or any amended or successor versions of Sections 1471 through 1474 of the Code that is substantively comparable), any current or future regulations or official interpretations
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thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements (including any foreign legislation, rules, regulations, guidance notes or similar guidance adopted pursuant to or implementing such agreements) entered into in connection with such Sections.
“Final Maturity Date” means, with respect to a Series (or Class thereof) of Notes, the date identified as such in the related Series Supplement.
“Final Principal Payment Shortfall” has the meaning given to such term in Section 3.10(d)(v).
“Fixed Rate Security” means any Security having a Stated Rate that is a fixed percentage.
“Floating Rate Note” means any Note having a Stated Rate that varies with a specified index, as specified in the Series Supplement under which such Floating Rate Note is issued.
“Flow of Funds” means the provisions of the Master Indenture applicable to the allocation and distribution of the Available Collections Amount set forth in Sections 3.11(a), (b) or (c), as applicable.
“Form of Certificate” means with respect to a Class E Certificate, the form of such Security attached as an exhibit to the Certificate Purchase Agreement.
“Form of Full Service Lease” means the form of master railcar lease agreement attached as Exhibit D-1 and D-2 to the Master Indenture.
“Form of Net Lease” means the form of master railcar lease agreement attached as Exhibit E-1 and E-2 to the Master Indenture.
“Form of Note” means, with respect to a Note, the form of such Security attached as an exhibit to the Series Supplement under which such Note is issued.
“FRA” means the Federal Railroad Administration or any successor thereto.
“Full Service Leases” means Leases pursuant to which the Lessor thereunder is responsible for maintenance and repair of the Portfolio Railcars that are subject thereto.
“Future Lease” means, in respect of any Railcar, a Lease of such Railcar entered into by the Issuer at any time after the Delivery Date for such Railcar and that is not an Existing Lease.
“General Intangibles” (a) means all “general intangibles” as defined in Article 9 of the UCC and (b) includes, without limitation, all Assigned Agreements, all interest rate or currency protection or hedging arrangements, all tax refunds, claims for tax refunds and tax credits, all licenses, permits, approvals, consents, variances, certifications,
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concessions and authorizations, all Intellectual Property, all Payment Intangibles (in each case, regardless of whether characterized as general intangibles under the UCC), limited liability company or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee and the properties and rights associated therewith), franchises, and any letter of credit, guarantee, claim, security interest or other security held by or granted to the Issuer to secure payment by an account debtor of any of the Accounts Receivable including the Issuer’s rights in all security agreements, leases and other contracts securing or otherwise relating to any Account Receivable and all warranties, rights and claims against third parties including carriers and shippers and otherwise.
“Governmental Authority” shall mean any government, legislative body, regulatory authority, court, administrative agency or commission or other governmental agency or instrumentality (or any officer or representative thereof), domestic, foreign or international, of competent jurisdiction, including the European Union.
“Green Bond Report” has the meaning given to such term in Section 1(q) of the Administrative Services Agreement.
“Hedge Agreement” means an interest rate derivative agreement (including, without limitation, a cap, collar, floor, swap or other derivative transaction) between the Issuer and the Hedge Provider named therein.
“Hedge Collateral” has the meaning given to such term in Section 3.16(g).
“Hedge Collateral Account” has the meaning given to such term in Section 3.16(g).
“Hedge Partial Termination Value” means, with respect to a partial termination of a Hedge Agreement, a termination payment due either from the Issuer to the applicable Hedge Provider or from the applicable Hedge Provider to the Issuer in relation to such termination pursuant to the terms of such Hedge Agreement. Such termination payment may be subject to netting or offsetting claims, and the final amount so owed will be the Hedge Partial Termination Value.
“Hedge Provider” means a Person that is a party to a Hedge Agreement with the Issuer.
“Hedge Termination Value” means, with respect to a Hedge Agreement, a termination payment due either from the Issuer to the applicable Hedge Provider or from the applicable Hedge Provider to the Issuer in relation to such termination pursuant to the terms of such Hedge Agreement. Such termination payment may be subject to offsetting claims, and the final amount so owed by the Issuer or to the Issuer (if any) will be the Hedge Termination Value.
“Hedging Requirement” has the meaning given to such term in Section 3.16(b).
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“Holder” means (i) with respect to any Book-Entry Note, the beneficial owner of such Note, (ii) with respect to any Definitive Note, any Person in whose name such Note is registered from time to time in the Register for such Notes and (iii) with respect to any Class E Certificates, any Person in whose name such Class E Certificate is registered from time to time in the Register for such Class E Certificates maintained by the Certificate Agent.
“Holder Tax Identification Information” means properly completed and signed tax certifications (generally, in the case of U.S. federal income tax, IRS Form W-9 (or applicable successor form) in the case of a person that is a “United States Person” within the meaning of Section 7701(a)(30) of the Code or the appropriate IRS Form W-8 (or applicable successor form) in the case of a person that is not a “United States Person” within the meaning of Section 7701(a)(30) of the Code) and other information requested from time to time by the Issuer, the Indenture Trustee or any Paying Agent sufficient (i) to determine the applicability of, or to determine the amount of, U.S. withholding tax under the Code (including back-up withholding and withholding imposed pursuant to FATCA) or other Applicable Law and (ii) for the Issuer, the Indenture Trustee and each Paying Agent to satisfy their information reporting obligations under the Code (including under FATCA) or other Applicable Law.
“Indebtedness” means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of purchasing such property or service or taking delivery and title thereto or the completion of such services, and payment deferrals arranged primarily as a method of raising funds to acquire such property or service, (v) all obligations of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed) that is required to be classified and accounted for as a capital lease obligation under U.S. GAAP, (vi) all Indebtedness (as defined in clauses (i) through (v) of this paragraph) of other Persons secured by a lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, (vii) all indebtedness of such Person under Liquidity Facilities, (viii) net payments due and payable by such Person under Hedge Agreements, and (ix) all Indebtedness (as defined in clauses (i) through (viii) of this paragraph) of other Persons guaranteed by such Person.
“Indemnified Expenses” has the meaning given to such term in Section 5 of the Administrative Services Agreement.
“Indenture Account” means each of the Collections Account, the Expense Account, the Optional Reinvestment Account, the Certificate Account, each Series Account, any Class Account, the Liquidity Reserve Account, any Liquidity Facility
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Collateral Account, any Redemption/Defeasance Account, any Prefunding Account and any sub-accounts and ledger and sub-ledger accounts maintained with respect to any of the foregoing in accordance with this Master Indenture (as well as any other account, if any, established with the Indenture Trustee in accordance with Section 3.01(a) after the Initial Closing Date).
“Indenture Investment” means any obligation issued or guaranteed by the United States of America or any of its agencies for the payment of which the full faith and credit of the United States of America is pledged and with a final maturity on or before the date which is the earlier of (a) ninety days from the date of purchase thereof and (b) the first Payment Date occurring after the date of purchase thereof.
“Indenture Supplement” means a supplement to this Master Indenture, other than a Series Supplement.
“Indenture Trustee” has the meaning given to such term in the preamble hereof, and any successor indenture trustee appointed in accordance with the terms hereof.
“Indenture Trustee Fees” means the compensation and expenses (including attorney’s fees and expenses and indemnification payments) payable to the Indenture Trustee for its services under this Master Indenture and the other Relative Documents to which it is a party (if any).
“Industry Concentration Limitation” means that, as of any date of determination, the Adjusted Value of Portfolio Railcars leased to Lessees for primary use in the industries identified below, are in excess of the percentages set forth below for each such industry (expressed as a percentage of the aggregate Adjusted Value of all Portfolio Railcars on such date):
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Industry
Concentration Limit
(% of Adjusted Value of Portfolio Railcars)
Aggregates 15%
Automotive 15%
Biofuels 20%
Cement 15%
Chlor Alkali 15%
Construction Material 15%
Crude Oil 15%*
Coal 7.5%
DDG/Feed 15%
Fertilizer 15%
Food and Other Agriculture 15%
Frac Sand 7.5%
Grain 15%
Grain Mill Products 20%
Lumber 15%
Metal Products 15%
NGL 15%
Other 15%
Other Chemical 15%
Paper 15%
Petrochemicals 15%
Plastics 15%
Refined Products 20%
Steel/Iron 15%

*Non‐DOT 117 tank cars in crude oil service will be limited to 7.5% of the total Adjusted Value of Portfolio Railcars
The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Industry Concentration Limitation (i.e., to increase either or both of the percentages to be greater than the applicable percentage or percentages that are then in effect pursuant to this definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Inflation Factor” means, with respect to any calendar year, the quotient (expressed as a decimal) obtained by dividing (i) the PPI published in respect of the most recently ended calendar year (the “New Year”), by (ii) the PPI published in respect of the calendar year immediately preceding the New Year, and subtracting 1.00 from the
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resulting quotient. “PPI” for purposes hereof, means, with respect to any calendar year or any period during any calendar year, the “Producer Price Index” applicable to the capital equipment sector as published by the Bureau of Labor Statistics for the United States Department of Labor. If the PPI shall be converted to a different standard reference base or otherwise revised after the date hereof, PPI shall thereafter be calculated with use of such new or revised statistical measure published by the Bureau of Labor Statistics or, if not so published, as may be published by any other reputable publisher of such price index reasonably selected by the Administrator. The Inflation Factor may be a negative number.
“Initial Appraised Value” means, with respect to a Railcar, the appraised value of such Railcar as determined in the Appraisal delivered in connection with the Conveyance thereof to the Issuer.
“Initial Closing Date” means June 15, 2021.
“Initial Holder” means, with respect to the Class E Certificates, Triumph Rail Holdings, LLC.
“Initial Liquidity Facility” means the Revolving Credit Agreement entered into between the Issuer and the Initial Liquidity Facility Provider on the Initial Closing Date.
“Initial Liquidity Facility Provider” means the “Liquidity Facility Provider” under the Series Supplement for the Initial Notes.
“Initial Notes” means the Notes designated “Series 2021-2” issued on the Initial Closing Date.
“Initial Purchaser”, with respect to a Series of Equipment Notes, has the meaning given to such term in the related Series Supplement.
“Insolvency Appointee” has the meaning given to such term in Section 5.04(h).
“Inspection Representative” has the meaning given to such term in Section 5.04(y)(i).
“Inspections” has the meaning given to such term in Section 5.04(y)(i).
“Institutional Accredited Investor” means a Person that is an “accredited investor” as that term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D.
“Instruments” means all “instruments” as defined in Article 9 of the UCC.
“Insurance Agreement” means the Insurance Agreement, dated as of the Initial Closing Date, between the Insurance Manager and the Issuer, or any replacement insurance agreement with a replacement Insurance Manager.
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“Insurance Manager” means TILC, in its capacity as insurance manager under the Insurance Agreement, including its successors in interest and permitted assigns, until another Person shall have become the insurance manager under such agreement, after which “Insurance Manager” shall mean such other Person.
“Insurance Manager Default” has the meaning given to such term in Section 6.2 of the Insurance Agreement.
“Intellectual Property” means all past, present and future: trade secrets and other proprietary information; trademarks, service marks, business names, Internet domain names, designs, logos, trade dress, slogans, indicia and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including copyrights for computer programs and software) and copyright registrations or applications for registrations which have heretofore been or may hereafter be applied for or issued throughout the world and all tangible property embodying the copyrights; unpatented inventions (whether or not patentable); patent applications and patents; industrial designs, industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, source codes, object codes and other physical manifestations, embodiments or incorporations of any of the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; and all common law and other rights throughout the world in and to any or all of the foregoing.
“Interchange Rules” means the interchange rules or supplements thereto of the AAR, as the same may be in effect from time to time.
“Interest Accrual Period” means, except as may be otherwise provided in the related Series Supplement for a Series of Securities: (a) with respect to Fixed Rate Securities, the period beginning on the 17th day of a calendar month and ending on (but excluding) the 17th day of the next calendar month, and (b) with respect to Floating Rate Notes, the period beginning on each Payment Date and ending on (but excluding) the next succeeding Payment Date, except that the initial Interest Accrual Period for a Series (x) with respect to Fixed Rate Securities, shall begin on the Closing Date for such Series and end on (but exclude) the 17th day of the next calendar month, and (y) with respect to Floating Rate Notes, shall begin on the Closing Date for such Series and end on (but exclude) the first Payment Date occurring after such Closing Date.
“Investment Letter” means a letter substantially in the form of Exhibit B attached hereto.
“Investment Property” means all “investment property” as defined in Article 9 of the UCC.
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“Involuntary Railcar Disposition” has the meaning given to such term in Section 5.03(a)(ii).
“Issuance Expenses” means the aggregate amount of all subscription discounts, brokerage commissions, placement fees, resale fees, structuring fees, out of pocket transaction expenses and other similar fees, commissions and expenses relating to the issuance of a Series of the Securities.
“Issuer” has the meaning given to such term in the preamble.
“Issuer Documents” means this Master Indenture, each Series Supplement, the Servicing Agreement, the Account Administration Agreement, the Administrative Services Agreement, the Insurance Agreement, the Asset Transfer Agreements, any Bill of Sale, any Assignment and Assumption, the Hedge Agreements, the Liquidity Facility Documents, the Marks Company Trust Agreement, any Marks Company Trust Supplement, the Marks Servicing Agreement and any SUBI Certificate related to the Portfolio Railcars.
“Issuer Expense” means, for any Payment Date, any of the following costs directly incurred by the Issuer or incurred by any Service Provider in its performance of its obligations under the applicable Service Provider Agreement that are, in each case, reasonable in amount and are fairly attributable to the Issuer and its permitted activities during the related Collection Period: (i) accounting and audit expenses, and tax preparation, filing and audit expenses; (ii) premiums for liability, casualty, fidelity, directors and officers and other insurance; (iii) directors’ fees and expenses, including fees and expenses of the special member of the Issuer; (iv) other professional fees; (v) taxes (including personal or other property taxes and all sales, value added, use and similar taxes) other than taxes that are incurred by such Service Provider in respect of its own income or assets, and other than taxes that constitute Ordinary Course Expenses; (vi) taxes imposed in respect of any and all issuances of equity interests, stock exchange listing fees, registrar and transfer expenses and trustee’s fees with respect to any outstanding securities of the Issuer; and (vii) surveillance fees assessed by the Rating Agencies, including any such fees incurred by the Issuer in connection with its compliance with its covenant set forth in Section 5.02(o).
“Issuer Group Member” means any of the Issuer, Trinity, TILC or any Affiliate of any of them.
“KBRA” means Kroll Bond Rating Agency, LLC.
“Later Sold Note” has the meaning given to such term in Section 2.19.
“Law” means (a) any constitution, treaty, statute, law, regulation, order, rule or directive of any Governmental Authority, and (b) any judicial or administrative interpretation or application of, or decision under, any of the foregoing.
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“Lease” means, with respect to a Railcar, a lease, car contract or other agreement granting permission for the use of such Railcar, constituting an operating lease thereon.
“Lease Payments” means all lease rental payments and other amounts payable by or on behalf of a Lessee under a Lease related to a Portfolio Railcar, including payments credited due to application of security deposits and amounts recovered under other supporting obligations, if any, in respect of such Lease.
“Lessee” means each Person who is the lessee under a Lease of a Railcar.
“Lessee Contact” has the meaning given to such term in Section 2.1(a) of the Servicing Agreement.
“Lessor” means, with respect to any Lease, the lessor under such Lease (being, in respect of Leases of Portfolio Railcars, the Issuer as assignee lessor under the related Assignment and Assumption).
“LIBOR”, with respect to a Series, has the meaning given to such term in the related Series Supplement, if applicable.
“Liquidity Facility” means the Initial Liquidity Facility and/or Additional Liquidity Facility, as the context may require. A Liquidity Facility may be in the form of a letter of credit, liquidity loan agreement, revolving credit agreement, collateralized or uncollateralized guarantee, financial guaranty policy, guaranteed investment contract, total return swap, or some other form of standby liquidity.
“Liquidity Facility Available Amount” with respect to a Liquidity Facility, means the amount available to be drawn under such Liquidity Facility.
“Liquidity Facility Collateral Account” has the meaning given to such term in Section 3.01(a).
“Liquidity Facility Documents” has the meaning given to such term in Section 3.15.
“Liquidity Facility Provider” means the Initial Liquidity Facility Provider and/or any Additional Liquidity Facility Provider, as the context may require.
“Liquidity Reserve Account” has the meaning given to such term in Section 3.01(a).
“Liquidity Reserve Target Amount” means, (A) as of the Initial Closing Date, zero and (B) thereafter, on each Payment Date, an amount equal to the product of (x) nine times (y) the sum of (i) the Stated Interest Amount due on all Outstanding Class A Equipment Notes and Class B Equipment Notes on such Payment Date (for purposes of this calculation, interest shall be calculated on the basis of a 360-day year consisting of
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twelve 30-day months), plus (or minus) (ii) the net payments owed by the Issuer (or owed to the Issuer) under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) in respect of the Interest Accrual Period ending on such Payment Date (for purposes of this calculation, such payments shall be calculated on the basis of a 360-day year consisting of twelve 30-day months for both amounts payable and receivable).
“LLC Agreement” means that certain Third Amended and Restated Limited Liability Company Agreement of the Issuer, dated on or about the Initial Closing Date.
“Mark” means the identification mark of a railcar registered with the AAR, consisting of letters registered in the name of the owner of the railcar mark and the car number.
“Marks Company” means Trinity Marks Company, a Delaware statutory trust.
“Marks Company Trust Agreement” means the Amended and Restated Marks Company Trust Agreement, dated as of May 17, 2001, between TILC and WTC.
“Marks Company Trust Supplement” means (a) with respect to the Initial Notes, the Marks Company Trust Supplement 2021-2, and (b) with respect to any Additional Series, the related supplement to the Marks Company Trust Agreement, substantially in the form of the Marks Company Trust Supplement.
“Marks Company Trust Supplement 2021-2” means the Supplement 2021-2 to the Marks Company Trust Agreement, dated as of the Initial Closing Date, between TILC and WTC.
“Marks Company Trustee” has the meaning given to such term in the Marks Company Trust Agreement.
“Marks Servicing Agreement” means the Management and Servicing Agreement, dated as of May 17, 2001, between TILC and the Marks Company.
“Master Indenture” has the meaning given to such term in the preamble hereto.
“Maximum Hedging Amount” has the meaning given to such term in Section 3.16(b).
“Member” means the sole equity member of the Issuer, i.e. Triumph Rail Holdings, LLC, or any successor or assignee thereto, in such capacity.
“Merger Transaction” has the meaning given to such term in Section 5.02(g).
“Mexican Lessee” is defined in the definition of Permitted Lessee.
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“Mexico Concentration Restriction” means the condition described in the proviso to the definition of Permitted Lessee. The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Mexico Concentration Restriction (i.e., to increase the percentage set forth in the definition of Permitted Lessee to be greater than the applicable percentage that is then in effect pursuant to such definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Minimum Hedging Amount” has the meaning given to such term in Section 3.16(b).
“Mixed Rider” means a Rider that covers not only Railcars owned by the Issuer but also railcars owned by one or more other owners.
“Modification Agreement” means any agreement between the Issuer (or the Servicer acting on its behalf) and a Supplier for the purchase and/or installation of a Required Modification or an Optional Modification.
“Money” means “money” as defined in the UCC.
“Monthly Report” has the meaning given to such term in Section 2.13(a).
“Moody’s” means Moody’s Investors Service, Inc. or, if such corporation or its successor shall for any reason no longer perform the functions of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally recognized rating agency designated by the Issuer.
“National Reload Pool” means the autorack pool operated by TTX Company for the shared use of bi-level and tri-level autorack Railcars that have been supplied for such pool by participating Class 1 railroads.
“Net Disposition Proceeds” means, with respect to any Railcar Disposition, (a) in respect of a Railcar Disposition consisting of a sale, the aggregate amount of cash received by or on behalf of the seller in connection with such transaction after deducting therefrom (without duplication) (i) reasonable and customary brokerage commissions and other similar fees and commissions, and (ii) the amount of taxes payable in connection with or as a result of such transaction, in each case to the extent, but only to the extent, that amounts so deducted are, at the time of receipt of such cash, actually paid to a Person that is not an Affiliate of the seller and are properly attributable to such transaction or to the asset that is the subject thereof, and (b) in respect of a Railcar Disposition that is not a sale, payments received in respect of any applicable casualty or condemnation, including insurance proceeds, condemnation awards and payments received from Lessees or other third parties.
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“Net Leases” means Leases pursuant to which a Lessee thereunder is responsible for maintenance and repair of the Portfolio Railcars leased thereunder.
“Net Proceeds” means, with respect to the issuance of the Securities, the aggregate amount of cash received by the Issuer in connection with such issuance after deducting therefrom (without duplication) all Issuance Expenses; provided that such amount shall not be less than zero.
“Net Stated Interest Shortfall” has the meaning given to such term in Section 3.04(c).
“Non-Severable Mixed Rider” means a Mixed Rider that does not contain a Designated Severability Clause.
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
“Note Purchase Agreement”, with respect to a Series of Equipment Notes, has the meaning given to such term in the related Series Supplement.
“Notes” means the Equipment Notes and the Subordinated Notes.
“Notices” has the meaning given to such term in Section 13.04.
“NRSRO” means any nationally recognized statistical rating organization.
“Officer’s Certificate” means a certificate signed (i) in the case of a corporation, by the President, any Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of such corporation, (ii) in the case of a partnership, by the Chairman of the Board, the President or any Vice President, the Treasurer or an Assistant Treasurer of a corporate general partner or limited liability company general partner (to the extent such limited liability company has officers), (iii) in the case of a commercial bank or trust company, by the Chairman or Vice Chairman of the Executive Committee or the Treasurer, any Trust Officer, any Vice President, any Executive or Senior or Second or Assistant Vice President, or any other officer or assistant officer customarily performing the functions similar to those performed by the persons who at the time shall be such officers, or to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and (iv) in the case of a limited liability company, any manager or member (other than a special member) thereof, and any President, Managing Director or Vice President of (A) such limited liability company, (B) such manager or member, or (C) a manager of such manager or member.
“Operating Expenses” means (i) Issuer Expenses, (ii) Ordinary Course Expenses and (iii) the costs of Required Modifications.
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“Operative Agreements” means the Certificate Purchase Agreement, Asset Transfer Agreements, Bills of Sale, Assignment and Assumptions, this Master Indenture, each Series Supplement, the Notes, each Officer’s Certificate of the Issuer, the Servicer, any Seller, the Administrator or TILC in any other capacity (including as settlor, initial beneficiary and SUBI trustee under any Marks Company Trust Supplement) delivered pursuant to any Operative Agreement, the Servicing Agreement, the Administrative Services Agreement, the Insurance Agreement, the Service Provider Agreements, the Account Administration Agreement, the Marks Company Trust Agreement, each Marks Company Trust Supplement, the Marks Servicing Agreement, the Hedge Agreements and the Liquidity Facility Documents.
“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of the Servicer or the Administrator or counsel to the Issuer, that meets the requirements of Section 1.03.
“Optional Modification” means a modification or improvement of a Railcar, the cost of which is capitalized in accordance with U.S. GAAP, that (a) is not a Required Modification and (b) complies with the criteria set forth in Section 5.04(z)(ii).
“Optional Redemption” means, with respect to any Series of Notes or any Class within a Series of Securities, a voluntary prepayment by the Issuer of all or a portion of the Outstanding Principal Balance of such Series or Class in accordance with the terms of this Master Indenture and the applicable Series Supplement or the Certificate Purchase Agreement; and, with respect to all Outstanding Notes, a voluntary prepayment by the Issuer of the Outstanding Principal Balance of the Notes in accordance with the terms of this Master Indenture and each applicable Series Supplement.
“Optional Reinvestment Account” has the meaning given to such term in Section 3.01(a).
“Ordinary Course Expenses” means, with respect to any Payment Date, all of the following expenses and costs, incurred by, or on behalf of, the Issuer (including by the Servicer on behalf of the Issuer) in connection with the ownership, use, leasing and/or operation of the Portfolio Railcars during the related Collection Period (and without duplication): (i) costs for routine maintenance and repairs (but not Optional Modifications) needed to return a Railcar to serviceable condition for use in interchange; (ii) the cost of repositioning a Railcar in connection with the origination or termination of a Lease; (iii) legal fees and court costs incurred in connection with enforcing rights under a Lease of a Railcar and/or repossessing such Railcar (but excluding legal fees incurred by the Servicer in the negotiation and documentation of Future Leases or of amendments or renewals of Leases and Future Leases); (iv) the allocable cost of obtaining and maintaining contingent and off-lease insurance with respect to the Portfolio Railcars; (v) taxes, levies, duties, charges, assessments, fees, penalties, deductions or withholdings assessed, charged or imposed upon or against the use and operation of the Portfolio Railcars; (vi) the cost of storing an off-lease Railcar;
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(vii) expenses and costs (including legal fees) of pursuing claims against manufacturers or sellers of a Railcar; (viii) non-recoverable sales and value-added taxes with respect to a Railcar; (ix) governmental filing fees necessary to perfect, or continue the perfection of, the security interest of the Indenture Trustee in a Railcar and/or a Lease; (x) the costs of Optional Modifications (but not in excess, in any calendar month, of the result of (A) one hundred thousand dollars ($100,000) multiplied by (B) the number of Outstanding Series on the first day of such calendar month); and (xi) all other expenses and costs, incurred by, or on behalf of, the Issuer (including by the Servicer on behalf of the Issuer) in connection with the ownership, use, leasing and/or operation of the Portfolio Railcars during the related Collection Period, other than Issuer Expenses, the costs of Required Modifications, and Excluded Expenses.
“Outstanding” means with respect to the Securities of any Series or any Class thereof at any time, all Securities of such Series or such Class, as the case may be, previously authenticated and delivered by the Indenture Trustee except (i) any such Securities cancelled by, or delivered for cancellation to, the Indenture Trustee; (ii) any such Securities, or portions thereof, for which the payment of principal of and accrued and unpaid interest on which moneys have been deposited in the Series Account for such Series or the Certificate Account, as applicable, or distributed to Holders by the Indenture Trustee and any such Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount have been deposited in the Redemption/Defeasance Account for such Securities; and (iii) any such Securities in exchange or substitution for which other Securities, as the case may be, have been authenticated and delivered, or which have been paid pursuant to the terms of this Master Indenture (unless proof satisfactory to the Indenture Trustee is presented that any of such Securities is held by a Person in whose hands such Security is a legal, valid and binding obligation of the Issuer). Section 1.04(c) sets forth certain limitations on whether any Securities held by the Issuer or any other Issuer Group Members will be considered to be Outstanding for purposes of Directions.
“Outstanding Note” means a Note that is Outstanding.
“Outstanding Obligations” means, as of any date of determination, an amount equal to the sum of (i) the Outstanding Principal Balance of, and all accrued and unpaid interest (including without limitation, Additional Interest) payable on the Notes and (ii) all other amounts owing from time to time to Holders, or to any other Person under the Operative Agreements.
“Outstanding Principal Balance” means, with respect to any Outstanding Notes the total principal balance of such Outstanding Notes unpaid and outstanding at any time.
“Outstanding Securities” means any Security that is Outstanding.
“Outstanding Stated Amount” means, with respect to the Class E Certificates, the outstanding stated amount thereof as of the Closing Date, as such amount may be
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increased from time to time in the manner set forth in the Certificate Purchase Agreement.
“Part” means any and all parts, attachments, accessions, appurtenances, furnishings, components, appliances, accessories, instruments and other equipment installed in, or attached to (or constituting a spare for any such item installed in or attached to) any Railcar.
“Paying Agent” has the meaning given to such term in Section 2.03(a). The term “Paying Agent” includes any additional Paying Agent.
“Payment Date” means the 17th calendar day of each month, commencing on July 17, 2021; provided that if any Payment Date would otherwise fall on a day that is not a Business Day, such Payment Date shall be the first following day which is a Business Day.
“Payment Date Schedule” means the schedule prepared by the Administrator pursuant to Section 3.10(e).
“Payment Intangible” means all “payment intangibles” as defined in Article 9 of the UCC.
“Permitted Discretionary Sale” has the meaning given to such term in Section 5.03(a)(iii).
“Permitted Encumbrance” means: (i) the ownership interests of the Issuer; (ii) the interest of the Lessee as provided in any Lease; (iii) any Encumbrance for taxes, assessments, levies, fees and other governmental and similar charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings so long as there exists no material risk of sale, forfeiture, loss, or loss of or interference with use or possession of the affected asset, and such contest would not result in the imposition of any criminal liability on the Issuer or any assignee thereof; (iv) in respect of any Railcar, any Encumbrance of a repairer, mechanic, supplier, materialman, laborer and the like arising in the ordinary course of business by operation of law or similar Encumbrance, provided that the proceedings relating to such Encumbrance or the continued existence of such Encumbrance does not give rise to any reasonable likelihood of the sale, forfeiture or other loss of the affected asset, and such contest would not result in the imposition of any criminal liability on the Issuer or any assignee thereof; (v) Encumbrances granted to the Indenture Trustee under and pursuant to this Master Indenture; (vi) any Encumbrances created by or through or arising from debt or liabilities or any act or omission of any Lessee in each case either in contravention of the relevant Lease (whether or not such Lease has been terminated) or without the consent of the relevant Lessor (provided that if the Issuer becomes aware of any such Encumbrance, it shall use commercially reasonable efforts to have any such Encumbrance lifted, removed and otherwise discharged); (vii) salvage rights of insurers under insurance policies covering the affected asset; (viii) any sublease permitted under
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any Lease; (ix) Encumbrances which are released or extinguished upon the transfer of the related asset to the Issuer by the applicable transferee thereof; and (x) Encumbrances on railcars and leases that result from a Rider being a Mixed Rider.
“Permitted Excess Concentration” means the aggregate Adjusted Value of the Issuer’s Railcars leased to an individual Lessee exceeds a percentage limitation specified in the definition of Customer Concentration Limitation as a result of the merger or consolidation of one or more Lessees. A Permitted Excess Concentration shall not be a violation of the Customer Concentration Limitation or the Concentration Limits generally; however, no additional Railcars may be leased to such Lessee (not counting then-currently leased Railcars that are re-leased to the then-current Lessee), and additional Railcars leased to such Lessee may not be purchased, by the Issuer unless, upon such lease or purchase, the Adjusted Value of the Issuer’s Railcars leased to such individual Lessee will meet the applicable Customer Concentration Limitation.
“Permitted Holder” has the meaning given to such term in Section 5.02(i).
“Permitted Investments” means one or more of the following obligations which (i) are acquired at a purchase price of not greater than par, (ii) have a fixed principal amount due at maturity, if applicable, and (iii) unless full payment of principal is paid in cash upon the exercise of the option, do not include any embedded options (i.e., not callable, putable or convertible): (a) marketable direct obligations issued by, or fully and unconditionally guaranteed by, the United States Government or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition, (b) certificates of deposit, time deposits, demand deposits, eurocurrency time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any United States commercial bank having a long-term unsecured debt rating of at least “AA-” by S&P and “A1” by Moody’s or equivalent ratings by another nationally recognized credit rating agency in substitution of Moody’s if Moody’s is not in the business of rating long-term senior unsecured debt of commercial banks, (c) commercial paper of an issuer rated at the time of acquisition at least A-1+ by S&P and P1 by Moody’s or, in substitution of Moody’s if Moody’s ceases publishing ratings of commercial paper issuers generally, carrying an equivalent rating by an internationally recognized rating agency, and maturing within one year from the date of acquisition, (d) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States Government, (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at the time of acquisition at least A-l+ by S&P and P1 by Moody’s, or in substitution of Moody’s if Moody’s ceases publishing ratings of such a state,
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commonwealth, territory, political subdivision, taxing authority or foreign government, carrying an equivalent rating by an internationally recognized rating agency, (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition or (g) shares of money market mutual or similar funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 thereunder and that, at the time of such investment, are rated “Aaa” by Moody’s and “AAA” by S&P or invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. The ratings by S&P described in this definition must be an unqualified rating (i.e., one with no qualifying suffix), with the exception of ratings with regulatory indicators and unsolicited ratings.
“Permitted Lease” means (a) each Existing Lease (including any renewal or extension thereof to the extent such renewal or extension complies with clauses (i), (iii), (iv) and (v) below) and (b) any agreement (other than an Existing Lease) constituting a Lease that meets all of the following requirements:
(i)    the Lessee thereunder is a Permitted Lessee;
(ii)    if such agreement permits the Lessee thereunder to sublease any of the Portfolio Railcars subject to such Lease, then such Lease shall require that any such sublease be conditioned on (A) the Lessee’s obtaining the Lessor’s prior consent to such sublease, (B) the Lessee agreeing that any such sublease will have provisions making it terminable (as to the sublessee) at the request of the Lessor or Lessee, as applicable, and prohibiting any further subleasing by the sublessee and will not contain any purchase option in favor of the sublessee, (C) the Lease providing that no such sublease shall relieve the Lessee from liability thereunder and (D) the applicable sublessee satisfying the requirements for a “Permitted Lessee” set forth below;
(iii)    such agreement was entered into on an arm’s length basis with fair market terms on the date of its execution, and does not require any prepayment of rental payments throughout the term of such agreement;
(iv)    such agreement does not contain any purchase option in favor of the Lessee thereunder, other than a purchase option provision complying with the definition of a Permitted Purchase Option;
(v)    such agreement (or any related consent, acknowledgment of assignment, side letter or similar written instrument executed by such Lessee) permits the assignment, pledge, mortgage or other similar disposition of the Lease of the related Railcar without notice to or consent by the Lessee (or, in the case of a written instrument described in the foregoing parenthetical, any further notice to or consent by the Lessee), it being understood that the inclusion within such permission or written instrument of language to the effect that such Lessee consent is conditioned on the assignees’ agreement that it takes its interest in the Railcar and/or related Lease subject to the
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rights of the Lessee in such Railcar under the Lease, including the right of quiet enjoyment, shall not in and of itself be deemed to constitute the Lease as other than a Permitted Lease; and
(vi)    such agreement contains a provision substantially to the effect that the lease rentals payable under such agreement are not subject to offset, deduction or counterclaim (except as expressly contemplated in any rental abatement provisions contained in a Full Service Lease); provided that this clause (vi) shall not apply if such agreement is subject to the terms of, or entered into pursuant to, an existing master lease agreement dated on or prior to a Closing Date which does not contain such a provision.
“Permitted Lessee” means any of the following:
(i)    a railroad company or companies (that is not a Credit Bankrupt, Trinity or any Affiliate of Trinity) organized under the laws of the United States of America or any state thereof or the District of Columbia, Canada or any province thereof, or Mexico or any state thereof, upon lines of railroad owned or operated by such railroad company or companies or over which such railroad company or companies have trackage rights or rights for operation of their trains, and upon connecting with other carriers in the usual interchange of traffic;
(ii)    a company with which the Servicer would do business in the ordinary course of its business with respect to railcars which it owns or manages for its own account (other than railroad companies, Trinity, Affiliates of Trinity or Credit Bankrupts) for use in their business; and whose credit profile does not vary materially from the credit profile of lessees of other railcars owned, leased or managed by the Servicer for its own account; or
(iii)    wholly-owned Subsidiaries of Trinity organized under the laws of (x) Canada or any political subdivision thereof or (y) Mexico or any political subdivision thereof, in each case so long as such Leases are on an arm’s length basis;
provided, however, that a Person organized under the laws of Mexico or any state thereof (a “Mexican Lessee”) shall not constitute a Permitted Lessee unless after giving effect to the contemplated lease to such Mexican Lessee, the percentage of Portfolio Railcars in the aggregate (as measured by Adjusted Value) leased (or subleased by a Lessee organized under the laws of the United States of America or any state thereof or the District of Columbia, Canada or any province thereof to a sublessee organized under the laws of Mexico or any state thereof, as applicable) to all Mexican Lessees does not exceed 20% of the Adjusted Value of the Portfolio Railcars in the aggregate.
“Permitted Purchase Option” has the meaning given such term in Section 5.01(z).
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“Permitted Railcar Acquisition” has the meaning given to such term in Section 5.03(c).
“Permitted Railcar Disposition” has the meaning given to such term in Section 5.03(a).
“Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any political subdivision thereof or any other legal entity, including public bodies.
“Plan” has the meaning given to such term in Section 2.11(h)(i).
“Portfolio” means, at any time, all Portfolio Railcars and the Leases related to such Railcars.
“Portfolio Lease” means, as of any date of determination, any Lease related to any Portfolio Railcar.
“Portfolio Railcars” means, as of any date of determination, all Railcars then owned by the Issuer that are subject to the Security Interest granted pursuant to this Master Indenture.
“Prefunding Account”, with respect to a Series, if applicable, has the meaning given to such term in the related Series Supplement.
“Principal Terms” means, with respect to any Series, all of the following information: (i) the name or designation of such Series and the Classes of Securities to constitute such Series; (ii) the initial principal balance of the Securities to be issued for such Series (or method for calculating such balance); (iii) the interest rate to be paid with respect to each Class of Securities for such Series; (iv) the Payment Date and the date or dates from which interest shall accrue and on which principal is scheduled to be paid; (v) the designation of any Series Accounts and Class Accounts, if any, for such Series and the terms governing the operation of any such Series Accounts and Class Accounts, if any; (vi) the Final Maturity Date; (vii) the Control Party; (viii) the Scheduled Principal Payment Amounts for each Class of Securities within such Series, (ix) in the case of an Additional Series, the rights to payment of interest and principal, which rights shall not be inconsistent with the Flow of Funds and this Master Indenture; (x) in the case of an Additional Series, the terms, if any, for the optional or early redemption of such Additional Series, (xi) in the case of an Additional Series, the form, authorization, execution and delivery, and the manner of redemption and repayment of such Additional Series, which terms shall be substantially similar to those applicable to the Initial Notes and in any event not inconsistent with the terms of this Master Indenture; (xii) in the case of an Additional Series, the legends applicable to such Additional Series, if any, which are required in addition to those set forth in this Master Indenture; (xiii) in the case
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of an Additional Series, whether the Securities of such Series are eligible for purchase by ERISA plans; and (xiv) any other terms of such Series.
“Private Placement Legend” means, (a) with respect to any Note, the legend initially set forth on the Notes in the form set forth in Section 2.02 and (b) with respect to any Class E Certificate, the legend initially set forth on the Class E Certificates in the form set forth in the Certificate Purchase Agreement.
“Pro Forma Lease” has the meaning given to such term in Section 5.03(e)(ii).
“Proceeding” means any suit in equity, action at law, or other judicial or administrative proceeding.
“Proceeds” means (a) all “proceeds” as defined in Article 9 of the UCC, (b) dividends, payments or distributions made with respect to any Investment Property and (c) whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected, converted or otherwise disposed of, whether such disposition is voluntary or involuntary.
“Prospective Operating Expenses” means, as of any date of determination, the Administrator’s (after consulting with the Servicer) good faith estimate of significant anticipated Operating Expenses expected to be incurred over the next twelve Collection Periods that could impact the Issuer’s ability to pay interest and Scheduled Principal Payment Amounts.
“Provincial Personal Property Security Act” means, in respect of each province or territory in Canada (other than Quebec), the Personal Property Security Act as from time to time in effect in such province or territory and, in respect of Quebec, the Civil Code of Quebec as from time to time in effect in such province.
“Prudent Industry Practice” means at a particular time and to the extent the same are generally known by those in the industry, the standard of operating and maintenance practices, methods and acts, including, but not limited to those required by the Field Manual of the AAR, FRA rules and regulations and Interchange Rules, which, in the light of the relevant facts is generally engaged in or approved by a significant portion of the owners, managers and operators of railcars in the United States that are similar to the Portfolio Railcars, could have been expected to accomplish the desired result consistent with good business practices, reliability, safety and expedition. Prudent Industry Practice is not intended to require optimum practice, method or acts, but rather a spectrum of possible practices, methods or acts that are generally engaged in by other owners, managers and operators of railcars in the United States which are similar to the Portfolio Railcars.
“Purchase Option Disposition” has the meaning given to such term in Section 5.03(a)(i).
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“Purchase Price” means (a) in the case of a Permitted Railcar Acquisition, the amount to be paid to the seller of a Railcar pursuant to the related Asset Transfer Agreement, and (b) in the case of a Required Modification or an Optional Modification, the cost of such Required Modification or Optional Modification, as provided in the Modification Agreement (if any) with the Supplier of such Required Modification or Optional Modification.
“Purchaser” means an Initial Purchaser.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Institutional Buyer” means a “qualified institutional buyer” as defined in Rule 144A promulgated under the Securities Act.
“Qualifying Replacement Railcars” means, in relation to a Replacement Exchange, Railcars that (a) are of at least a substantially comparable remaining economic useful life to the average remaining useful economic life of the Reference Sold Railcars, and (b) are (i) if subject to a Lease, such Lease is a Comparable Lease or (ii) if not subject to a Lease, the Administrator, on behalf of the Issuer, certifies to the Indenture Trustee that it has a reasonable, good faith expectation that such non-leased Railcars will generate at least the same amount of monthly lease revenue (once placed under Lease) as Railcars subject to a Comparable Lease.
“Railcar” means an item of railroad rolling stock, together with (i) any and all replacements or substitutions thereof, (ii) any and all tangible components thereof and (iii) any and all related appliances, Parts, accessories, appurtenances, accessions, additions, improvements to and replacements from time to time incorporated or installed in any item thereof.
“Railcar Advance Rate” means, as of any Payment Date and as determined for the Equipment Notes, and giving effect to all Flow of Funds allocations and other transactions occurring on such Payment Date, the percentage equivalent of a fraction, the numerator of which is the aggregate Outstanding Principal Balance of the Equipment Notes as of such Payment Date, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such Payment Date.
“Railcar Disposition” means any sale, transfer or other disposition of any Railcar (or an interest therein), including by reason of such Railcar suffering a Total Loss or a Scrap Value Disposition.
“Railroad Authority” means the STB, the AAR, and/or any other Governmental Authority which, from time to time, has control or supervision of railways or has jurisdiction over the railworthiness, operation and/or maintenance of a Railcar operating in interchange.
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“Railroad Mileage Credits” means the mileage credit payments made by railroads under their applicable tariffs to the registered owner of identifying marks on the railcars.
“Rapid Amortization Class” means a Class affected by a Rapid Amortization Event, i.e., a Rapid Amortization Event has occurred with respect to the Series of which such Class is a part and such Rapid Amortization Event applies to such Class.
“Rapid Amortization Date”, with respect to a Series, is defined in the related Series Supplement, if applicable.
“Rapid Amortization Event”, with respect to a Series, is defined in the related Series Supplement, if applicable.
“Rapid Amortization Notes” means the Notes of a Rapid Amortization Class or Rapid Amortization Series, as applicable.
“Rapid Amortization Series” means a Series affected by a Rapid Amortization Event, i.e., a Rapid Amortization Event has occurred with respect to such Series.
“Rating Agency” means, with respect to a Series of Notes, each nationally recognized statistical rating organization hired by the Issuer to issue a rating with respect to such Series of Notes or Class thereof as specified in the applicable Series Supplement; provided that such organization shall be deemed to be a Rating Agency only with respect to such Series or Class of Notes, as specified in the related Series Supplement, only so long as such Series or Class of Notes is Outstanding, and only so long as such organization maintains a rating on such Series or Class of Notes.
“Rating Agency Confirmation” means, with respect to any request, action, event or circumstance, and each Rating Agency then maintaining a rating on any Series of Notes (or Class thereof) then Outstanding, (a) written confirmation by such Rating Agency that fulfillment of such request or the taking of the requested action, or the occurrence of such event or circumstance will not itself cause the Rating Agency to downgrade or withdraw its then-current rating assigned to any such Series or Class, or (b) written notice to such Rating Agency of such request, action, event or circumstance, shall have been given by the Issuer at least ten (10) days prior to the request, action, event or circumstance (or, if Rating Agency Confirmation is required by the applicable transaction documents following the occurrence of an event or circumstance such written notice shall have been given by the Issuer immediately following the occurrence of such event or circumstance) and, (i) prior to the expiration of such ten (10) day period, such Rating Agency shall not have issued any written notice that the fulfillment of such request or the taking of the requested action, or occurrence of such event or circumstance will itself cause such Rating Agency to downgrade or withdraw its then current rating assigned to any of the Notes or (ii) such Rating Agency has communicated that it will not review such request, action, event or circumstances for purposes of evaluating whether to confirm its then current rating assigned to any of the
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Notes; provided, that if a Rating Agency has made a public statement to the effect that it will no longer review requests, actions, events or circumstances of the type requiring receipt of a Rating Agency Confirmation for purposes of evaluating whether to confirm the then-current rating of obligations rated by such Rating Agency, then such public statement shall be deemed to be a Rating Agency Confirmation with respect to such Rating Agency for any such request, action, event or circumstance.
“Received Currency” has the meaning given to such term in Section 13.06(a).
“Record Date” means with respect to each Payment Date, the close of business on the fifth Business Day immediately preceding such Payment Date and, with respect to the date on which any Direction is to be given by Holders, the close of business on the last Business Day prior to the solicitation of such Direction.
“Redemption Date” means the date on which Securities of any Series or Class are redeemed pursuant to an Optional Redemption.
“Redemption/Defeasance Account” means an account established by the Indenture Trustee pursuant to Section 3.08.
“Redemption Fraction” has the meaning given to such term in Section 3.14(c).
“Redemption Notice” means, a notice sent by the Indenture Trustee to the Holders in respect of the Securities to be redeemed, as described in Section 3.13(d).
“Redemption Premium” means, with respect to the principal amount of any Series (or Class) of Notes to be prepaid on any prepayment date, an amount, if any, specified in the applicable Series Supplement.
“Redemption Price” means, with respect to any Series of Securities or Class thereof that will be the subject of an Optional Redemption, an amount (determined as of the Determination Date (or, in respect of the applicable Hedge Termination Value, the date of termination of any applicable Hedge Agreement) for the Redemption Date for such Optional Redemption) equal to, in the case of any Series or Class of Notes and unless otherwise specified in the related Series Supplement, the Outstanding Principal Balance of the Series or Class of Notes being repaid together with all accrued and unpaid interest thereon and, if specified in the related Series Supplement, (a) the Redemption Premium thereon and (b) the Hedge Termination Value, if any, owed by the Issuer to Hedge Providers in connection therewith. For purposes of reporting any Hedge Termination Value applicable to an Optional Redemption, the Redemption Notice shall include an estimated amount of any such Hedge Termination Value as of the date of such Redemption Notice, and a supplement to the Redemption Notice will be delivered prior to the Redemption Date with such final Hedge Termination Value ascertained as of the date of termination of any applicable Hedge Agreement.
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“Reference Sold Railcars” means, with respect to Qualifying Replacement Railcars, the Sold Railcars to which the relevant Net Disposition Proceeds relate.
“Register” has the meaning given to such term in Section 2.03(a).
“Regulation D” means Regulation D under the Securities Act.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Book-Entry Notes” means the Unrestricted Book-Entry Notes and the Regulation S Temporary Book-Entry Notes.
“Regulation S Temporary Book-Entry Note” means Equipment Notes initially sold outside the United States in reliance on Regulation S, represented by a single temporary global note in fully registered form, without interest coupons, the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for a Regulation S Temporary Book-Entry Note inscribed thereon.
“Reimbursable Services” has the meaning given to such term in Section 5.4 of the Servicing Agreement.
“Related Document Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Related Documents” has the meaning given to such term in Section 5.04(y)(i).
“Relative Documents” means the Service Provider Agreements, the Asset Transfer Agreements, this Master Indenture, the Series Supplements and the Securities together with all certificates, documents and instruments delivered pursuant to any of the foregoing.
“Relevant Information” means the information provided by the Service Providers to the Administrator that is required to enable the Administrator make the calculations contemplated by Section 3.10(a) through (e).
“Replacement Exchange” means the acquisition by the Issuer of one or more Qualifying Replacement Railcars with all or a portion of the Net Disposition Proceeds from a Permitted Discretionary Sale, a Purchase Option Disposition or an Involuntary Railcar Disposition, in each case within the Replacement Period applicable to such Railcar Disposition, as provided in Section 5.03.
“Replacement Period” means, with respect to the Issuer’s use of all or any portion of Net Disposition Proceeds as permitted in accordance with this Master Indenture, the period beginning on the date of the applicable Railcar Disposition and ending on the earlier of (i) either (A) the 180th day after the date of the Issuer’s receipt of all Net Disposition Proceeds from such Railcar Disposition, or (B) if all Railcar
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Dispositions occurring during a single Collection Period in the aggregate relate to more than fifty percent (50%) of the Adjusted Value of all Portfolio Railcars in existence at beginning of such Collection Period, the 90th day after the date of the Issuer’s receipt of all Net Disposition Proceeds from such Railcar Disposition, and (ii) the occurrence of an Event of Default.
“Required Expense Amount” means, with respect to a Payment Date, an amount equal to the sum of (i) the Operating Expenses payable on such Payment Date, consisting of all Operating Expenses actually incurred by the Service Providers and not previously reimbursed and the amounts shown on all invoices received from the Service Providers for the reimbursement or payment of Operating Expenses due or to become due on or before such Payment Date and not previously paid or reimbursed, (ii) a reserve amount to be deposited for Operating Expenses that are due and payable during the period beginning on such Payment Date and ending on (but excluding) the next Payment Date and (iii) a reserve amount to be deposited for Prospective Operating Expenses.
“Required Expense Deposit” has the meaning given to such term in Section 3.10(a)(ii).
“Required Expense Reserve” means the sum of the amounts described in clauses (ii) and (iii) in the definition of “Required Expense Amount.”
“Required Modification” means any alteration or modification of a Portfolio Railcar required by the AAR, the FRA, the United States Department of Transportation or any other United States or state governmental agency or any other applicable law (including without limitation, the laws of Mexico, Canada or any of their respective states and territories (as applicable)) and required by such entity as a condition of continued use or operation of such Railcar in interchange.
“Requisite Majority” means Holders that, individually or in the aggregate, own more than fifty percent (50%) of the then Outstanding Principal Balance or, as the case may be, the Outstanding Stated Amount of the Senior Class (other than Securities owned by the Issuer Group Members).
“Responsible Officer” means, with respect to the subject matter of any covenant, agreement or obligation of any party contained in any Operative Agreement, the President, or any Vice President, Assistant Vice President, Treasurer, Assistant Treasurer or other officer, who in the normal performance of his or her operational responsibility would have knowledge of such matter and the requirements with respect thereto; and with respect to the Indenture Trustee, any Vice President, Assistant Vice President, Assistant Treasurer, Assistant Secretary, Corporate Trust Officer or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers, in each case, having direct responsibility for the administration of this Indenture; and when used in connection with the Issuer, shall include (i) any such officer of the Servicer or the Administrator acting on
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behalf of the Issuer under the applicable Service Provider Agreement, as the case may be, (ii) any such officer of the Member, or (iii) any such officer of a manager of the Member.
“Rider” means a schedule or rider to a master lease agreement between the lessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Rating Services, a S&P Global Ratings business, or any successor to such entity’s business of rating securities, or, if such entity or its successor shall for any reason no longer perform the functions of a securities rating agency, “S&P” shall be deemed to refer to any other nationally recognized rating agency designated by the Issuer.
“Schedule” means a schedule or rider to a master lease agreement between the lessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“Scheduled Principal Payment Amount” means, for the Notes of any Series or Class, as applicable, on any Payment Date, the excess, if any, of (x) the then Outstanding Principal Balance of such Series or Class of Notes, as applicable, over (y) the Scheduled Targeted Principal Balance of such Series or Class, as applicable, for such Payment Date.
“Scheduled Targeted Principal Balance” means, for each Class of Notes within a Series and for any Payment Date, the amount identified as such for that Class in the related Series Supplement, as it may be adjusted from time to time in accordance with Section 3.14.
“Scrap Value Disposition” has the meaning given to such term in Section 5.03(a)(iv).
“Section 385 Controlled Partnership” has the meaning set forth in Treasury Regulation Section 1.385-1(c)(1) for a “controlled partnership”.
“Section 385 Expanded Group” has the meaning set forth in Treasury Regulation Section 1.385-1(c)(4) for an “expanded group”.
“Secured Obligations” has the meaning given such term in the Granting Clause.
“Secured Parties” means the holders of and/or obligees in respect of the Secured Obligations, including without limitation the Holders, the Liquidity Facility Providers (other than any Liquidity Facility Provider whose related Liquidity Facility Documents are identified in a Series Supplement as being excluded from the Secured
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Obligations), the Servicer, the Administrator, the Insurance Manager, and the Hedge Providers.
“Securities” means the Notes and the Class E Certificates.
“Securities Accounts” means all “securities accounts” as defined in Article 9 of the UCC.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Registrar” has the meaning given to such term in Section 2.03(a).
“Security Entitlements” means all “security entitlements” as defined in Article 9 of the UCC.
“Security Interests” means the security interests and other Encumbrances granted or expressed to be granted in the Collateral pursuant to this Master Indenture.
“Seller” has the meaning given to such term in the applicable Asset Transfer Agreement.
“Senior Claim” has the meaning given to such term in Section 11.01(a).
“Senior Claimant” has the meaning given to such term in Section 11.01(a).
“Senior Class” means (a) initially, all Outstanding Class A Equipment Notes, (b) on and after the payment in full of all Outstanding Obligations with respect to the Class A Equipment Notes, all Outstanding Class B Equipment Notes, (c) on and after the payment in full of all Outstanding Obligations with respect to the Class A Equipment Notes and Class B Equipment Notes, all Outstanding Class C Equipment Notes, (d) on and after the payment in full of all Outstanding Obligations with respect to the Equipment Notes, all Outstanding Subordinated Notes and (e) on and after the payment in full of all Outstanding Obligations with respect to the Notes, all Outstanding Class E Certificates.
“Senior Hedge Payments” means all payments owed by the Issuer under a Hedge Agreement (including any Hedge Termination Value owed by the Issuer to the extent not satisfied from funds received by a Hedge Provider from any replacement Hedge Provider) except for Subordinated Hedge Payments.
“Senior Note” has the meaning given to such term in Section 2.17(d).
“Series” means any series of Securities established pursuant to a Series Supplement or, in the case of the Class E Certificates, purchased pursuant to the Certificate Purchase Agreement.
“Series 2021-2 Notes” means the Initial Notes.
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“Series Account” has the meaning given to such term in Section 3.01(a).
“Series Issuance Date” means, with respect to any Series of Additional Notes, the date on which the Securities of such Series are issued in accordance with the provisions of Section 9.06 and the related Series Supplement.
“Series Supplement” means any supplement to this Master Indenture, other than an Indenture Supplement, which sets forth the Principal Terms and other terms and conditions of a Series of Securities issued under this Master Indenture and such Series Supplement.
“Service Provider” means each of or all of (as the context may require) the Servicer, the Insurance Manager, the Indenture Trustee (including in its capacities as Paying Agent and Securities Registrar), the Administrator and the Liquidity Facility Providers.
“Service Provider Agreements” means, when used with respect to any Service Provider, the Servicing Agreement, the Insurance Agreement, the Administrative Services Agreement, this Master Indenture, or, in the case of a Liquidity Facility Provider, the applicable agreements providing for payment or reimbursement of fees and expenses of such Liquidity Facility Provider, in each case as applicable to such Service Provider which is party thereto, or any of the foregoing individually as the context requires.
“Service Provider Fees” means (a) all fees, expenses and indemnities due or reimbursable to the Indenture Trustee (including in its capacities as Paying Agent and Securities Registrar), the Servicer, the Insurance Manager and the Administrator in accordance with the applicable agreements with such Service Providers (including the Relative Documents), including the Indenture Trustee Fees due to the Indenture Trustee hereunder and the Servicing Fee due to the Servicer under the Servicing Agreement, but excluding any such amounts that constitute Operating Expenses, and (b) all fees and expenses (but not reimbursement or indemnification obligations) payable to the Liquidity Facility Providers in connection with the Liquidity Facilities.
“Servicer” means TILC, in its capacity as Servicer under the Servicing Agreement, including its successors in interest, until another Person shall have become the “Servicer” under such agreement, after which “Servicer” shall mean such other Person.
“Servicer Advance” has the meaning given to such term in the Servicing Agreement.
“Servicer Default” has the meaning given to such term in Section 8.2 of the Servicing Agreement.
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“Servicer Optional Modification Cap” has the meaning given to such term in Section 3.11(a)(8).
“Servicer Optional Modification Expense” has the meaning given to such term in Section 3.11(a)(8).
“Servicer Termination Event” means the occurrence of any event specified in the Servicing Agreement (and with respect to events that include a cure or grace period or notice requirement, following the elapsing of such period without cure or the delivery of such notice, as applicable) which gives the Issuer thereunder or its assignees the right to effect a replacement of the current Servicer thereunder with a successor or replacement Servicer.
“Servicer’s Fleet” means the TILC Fleet as of the Closing Date or as of any date thereafter and does not include Portfolio Railcars and, if a Successor Servicer shall have been appointed pursuant to the Servicing Agreement, “Servicer’s Fleet” means all railcars owned, leased or managed by such Servicer or its Affiliates, in either case, other than Portfolio Railcars.
“Servicing Agreement” means the Railroad Car Management, Operation, Maintenance, Servicing and Remarketing Agreement dated as of the Initial Closing Date between the Issuer and TILC, as initial Servicer thereunder.
“Servicing Fee” means, for any Payment Date, the compensation payable to the Servicer on such Payment Date in accordance with the terms of, and designated as such in, the Servicing Agreement.
“Similar Law” has the meaning given to such term in Section 2.11(h)(i).
“Sold Railcars” has the meaning given to such term in Section 5.03(a)(iii)(B).
“Stated Interest” means, with respect to any Note, interest payable on such Note at the Stated Rate for such Note.
“Stated Interest Amount” means, with respect to any Series of Notes (or Class thereof), that amount of Stated Interest due and payable on such Series of Notes (or Class thereof) on a Payment Date, including any Stated Interest due and payable on a prior Payment Date that was not paid on such Payment Date, as described in the last sentence of Section 3.04(c).
“Stated Interest Shortfall” has the meaning given to such term in Section 3.10(d)(i).
“Stated Rate” means, as specified in the related Series Supplement, the rate of interest payable on a specific Note of the related Series or Class.
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“STB” means the Surface Transportation Board of the United States Department of Transportation or any successor thereto.
“Stock” means all shares of capital stock, all beneficial interests in trusts, all partnership interests (general or limited) in a partnership, all membership interests in limited liability companies, all ordinary shares and preferred shares and any options, warrants and other rights to acquire such shares or interests, as applicable.
“SUBI Certificate” means, with respect to Railcars that are conveyed to the Issuer from time to time so as to become Portfolio Railcars and that bear Trinity Marks, a SUBI Certificate evidencing a SUBI interest in such Trinity Marks under the Marks Company Trust Agreement.
“Subject Note” has the meaning given to such term in Section 2.17(a).
“Subject Securities” has the meaning given to such term in Section 2.17(a).
“Subordinated Hedge Payment” means (i) a payment on account of a Hedge Termination Value owed by the Issuer as a result of an early termination of a Hedge Agreement following an event of default or termination event in relation to which the Hedge Provider is the defaulting party or the sole affected party (except in the case of a termination event related to illegality or a termination event related to a tax event) and (ii) any Hedge Partial Termination Value payable by the Issuer as to which Rating Agency Confirmation has not been received.
“Subordinated Note” means any one of the promissory notes (representing any of the Class R Notes) executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Series Supplement.
“Subordinated Note Amortization Date” means the earlier of (i) the Rapid Amortization Date and (ii) the first Payment Date upon which all amounts owing in respect of the Class A Equipment Notes, the Class B Equipment Notes and the Class C Equipment Notes (and all other obligations senior thereto in accordance with the Flow of Funds) have been paid in full in accordance with the Flow of Funds.
“Subordinated Note Purchase Agreement” with respect to a Series of Subordinated Notes, has the meaning given to such term in the related Series Supplement.
“Subordinated Railcar Advance Rate” means, as of any Payment Date and as determined for the Subordinated Notes, and giving effect to all Flow of Funds allocations and other transactions occurring on such Payment Date, the percentage equivalent of a fraction, the numerator of which is the aggregate Outstanding Principal Balance of the Subordinated Notes as of such Payment Date, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such Payment Date.
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“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.
“Successor Administrator” has the meaning given to such term in Section 4(d) of the Administrative Services Agreement.
“Successor Insurance Manager” has the meaning given to such term in Section 6.3(b) of the Insurance Agreement.
“Successor Servicer” has the meaning given to such term in Section 8.6 of the Servicing Agreement.
“Supplier” means the Person that supplies or installs a Required Modification or Optional Modification and to whom payment for the Purchase Price of such Required Modification or Optional Modification is to be made.
“Supporting Obligation” means all “supporting obligations” as defined in Article 9 of the UCC.
“Tax” and “Taxes” mean any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, loss, damage, liability, expense, additions to tax and additional amounts or costs incurred or imposed with respect thereto) imposed or otherwise assessed by the United States or by any state, local or foreign government (or any subdivision or agency thereof) or other taxing authority, including, without limitation: taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth and similar charges; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, taxes on goods and services, gains taxes, license, registration and documentation fees, customs duties, tariffs, and similar charges.
“Third Party Event” has the meaning given to such term in Section 5.04.
“TILC” means Trinity Industries Leasing Company, a Delaware corporation.
“TILC Agreements” means the Operative Agreements to which TILC is or will be a party.
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“TILC Fleet” means all Railcars owned, leased or managed by TILC as of any date of determination but excluding the Portfolio Railcars.
“TILC Green Bond Program” means the Trinity Industries Leasing Company Green Financing Framework dated January 2021, as may be amended, modified or replaced from time to time.
“Total Loss” means, with respect to any Railcar (a) if the same is subject to a Lease, an Event of Loss (as defined in such Lease) or the like (however so defined); or (b) if the same is not subject to a Lease, (i) its actual, constructive, compromised, arranged or agreed total loss, (ii) its destruction, damage beyond economic repair or being rendered unfit for commercial use for any reason whatsoever, (iii) its requisition for title, confiscation, restraint, detention, forfeiture or any compulsory acquisition or seizure or requisition for hire (other than a requisition for hire for a temporary period not exceeding 180 days) by or under the order of any government (whether civil, military or de facto) or public or local authority or (iv) its hijacking, theft or disappearance, resulting in loss of possession by the owner or operator thereof for a period of ninety (90) consecutive days or longer. A Total Loss with respect to any Railcar shall be deemed to occur on the date on which such Total Loss is deemed pursuant to the relevant Lease to have occurred or, if such Lease does not so deem or the relevant Railcar is not subject to a Lease, (A) in the case of an actual total loss or destruction, damage beyond economic repair or being rendered permanently unfit, the date on which such loss, destruction, damage or rendering occurs (or, if the date of loss or destruction is not known, the date on which the relevant Railcar was last heard of); (B) in the case of a constructive, compromised, arranged or agreed total loss, the earlier of (1) the date 30 days after the date on which notice claiming such total loss is issued to the insurers or brokers and (2) the date on which such loss is agreed or compromised by the insurers; (C) in the case of requisition for title, confiscation, restraint, detention, forfeiture, compulsory acquisition or seizure, the date on which the same takes effect; (D) in the case of a requisition for hire, the expiration of a period of 180 days from the date on which such requisition commenced (or, if earlier, the date upon which insurers make payment on the basis of a Total Loss); or (E) in the case of clause (iv) above, the final day of the period of 90 consecutive days referred to therein.
“Transaction Parties” means the Issuer, TILC, the Indenture Trustee, the Initial Purchasers or any of their respective Affiliates.
“Transferee” has the meaning given to such term in Section 2.17(a).
“Transferred Security” has the meaning given to such term in Section 2.17(a).
“Treasury Regulations” means the income tax regulations promulgated under the Code.
“Trinity” means Trinity Industries, Inc., a Delaware corporation.
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“Trinity Marks” means the Marks owned by the Marks Company.
“TRIP Leasing” means TRIP Rail Leasing LLC, a Delaware limited liability company.
“TRIP Leasing Agreements” means the Operative Agreements to which TRIP Leasing is or will be a party.
“UCC” means the Uniform Commercial Code as enacted in the State of New York, or when the context implies, the Uniform Commercial Code as in effect from time to time in any other applicable jurisdiction.
“UCC Securities” means any obligations of an issuer or any shares, participations or other interests in an issuer or in property or an enterprise of an issuer that (i) are represented by a certificate representing a security in bearer or registered form, or the transfer of which may be registered upon books maintained for that purpose by or on behalf of the issuer, (ii) are one of a class or series or by its terms is divisible into a class or series of shares, participations, interests or obligations and (iii)(A) are, or are of a type, dealt with or traded on securities exchanges or securities markets or (B) are a medium for investment and by their terms expressly provide that they are a security governed by Article 8 of the UCC.
“Unit Inspection” has the meaning given to such term in Section 5.04(y)(i).
“United States Person” and “U.S. Person” have the meanings given to such terms in Regulation S under the Securities Act.
“Unrestricted Book-Entry Note” shall have the meaning given to such term in Section 2.01(c)(iv), the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for an Unrestricted Book-Entry Note inscribed thereon.
“U.S. Bank” means U.S. Bank National Association, a national banking association.
“U.S. GAAP” means generally accepted accounting principles in the United States, as in effect from time to time.
“U.S. Government Obligations” has the meaning given to such term in Section 12.02(a).
“U.S.-Restricted Security” has the meaning given to such term in Section 2.17(b).
“WTC” means Wilmington Trust Company, a Delaware trust company.
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Exhibit 10.3.2
EXECUTION VERSION









SERIES 2021-2
SUPPLEMENT

TRIUMPH RAIL LLC,
as Issuer,

and

U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee

dated as of June 15, 2021

______________________________

SERIES 2021-2 NOTES
______________________________




TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
Section 1.01 Definitions 1
ARTICLE II THE SERIES 2021-2 NOTES 4
Section 2.01 Designation of Series; Series 2021-2 Notes 4
Section 2.02 Grant of Security Interest in 2021-2 Series Account 4
Section 2.03 Authentication and Delivery 4
Section 2.04 Interest Payments on the Series 2021-2 Notes 5
Section 2.05 Principal Payments on the Series 2021-2 Notes 5
Section 2.06 Prepayment of Principal on the Series 2021-2 Notes 6
Section 2.07 Manner of Payment 8
Section 2.08 Restrictions on Transfer 8
Section 2.09 Final Maturity Date 8
Section 2.10 Liquidity Facility Provider 8
ARTICLE III 2021-2 SERIES ACCOUNT 8
Section 3.01 2021-2 Series Account 8
Section 3.02 Distributions from 2021-2 Series Account 9
Section 3.03 Liquidity Reserve Target Amount 9
ARTICLE IV CONDITIONS TO ISSUANCE 9
Section 4.01 Conditions to Issuance 9
ARTICLE V REPRESENTATIONS AND WARRANTIES 9
Section 5.01 Master Indenture Representations and Warranties 9
ARTICLE VI MISCELLANEOUS PROVISIONS 9
Section 6.01 Ratification of Master Indenture 9
Section 6.02 Counterparts 9
Section 6.03 Governing Law 9
Section 6.04 Notices to the Rating Agency 10
Section 6.05 Notices to Liquidity Facility Provider 10
Section 6.06 Amendments and Modifications 10

EXHIBITS

EXHIBIT A Form of Class A Note
EXHIBIT B Form of Class B Note

SCHEDULES

SCHEDULE 1 Description of Initial Railcars
SCHEDULE 2 Description of Initial Leases
i

SERIES 2021-2 SUPPLEMENT, dated as of June 15, 2021 (this “Series 2021-2 Supplement”), issued pursuant to, and incorporating the terms of, the Master Indenture, dated as of the date hereof (as amended, modified or supplemented from time to time, the “Master Indenture”, and, together with this Series 2021-2 Supplement, the “Series 2021-2 Indenture”) between TRIUMPH RAIL LLC (formerly known as TRIP Rail Master Funding LLC), a Delaware limited liability company (the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Indenture Trustee (the “Indenture Trustee”).
WITNESSETH THAT:
WHEREAS, the Issuer and the Indenture Trustee wish to set forth the Principal Terms of a Series of Equipment Notes with two Classes (the Class A Notes and the Class B Notes) within such Series to be issued pursuant to this Series 2021-2 Supplement;
WHEREAS, the Issuer will separately be issuing the Class E Certificates pursuant to the terms of the Master Indenture and the Certificate Purchase Agreement; and
NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. (a) Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Master Indenture. Whenever used in this Series 2021-2 Supplement, the following words and phrases shall have the following meanings, and the definitions of such terms are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.
“144A Book-Entry Notes” means Series 2021-2 Notes substantially in the form attached as Exhibit A or Exhibit B hereto, with the applicable legend for 144A Book-Entry Notes required by Section 2.02 of the Master Indenture inscribed on the face thereof.
“2021-2 Series Account” means the Series Account for the Series 2021-2 Notes, established in accordance with Section 3.01 hereof and Sections 3.01 and 3.07 of the Master Indenture. The account number of the 2021-2 Series Account is 226462005.
“Average Life Date” is defined in Section 2.06(c).
“Certificate Purchase Agreement” means the Certificate Purchase and Agency Agreement dated as of the date hereof among the Issuer, Triumph Rail Holdings, LLC, as certificate purchaser and TRIP Rail Holdings LLC, as certificate agent.
“Class A Interest Rate” means two and fifteen hundredth percent (2.15%) per annum.
“Class A Note” means an Equipment Note substantially in the form of Exhibit A.
“Class A Optional Redemption” is defined in Section 2.06(a).
“Class A Optional Redemption Date” is defined in Section 2.06(a).
“Class A Redemption Premium” is defined in Section 2.06(a).
“Class A Stated Interest Amount” means, for any Payment Date, an amount equal to the “Stated Interest Amount” (as defined in the Master Indenture) calculated with respect to the
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Class A Notes. The Class A Stated Interest Amount constitutes the Stated Interest Amount for the Class A Notes.
“Class B Interest Rate” means three and eight hundredths percent (3.08%) per annum.
“Class B Note” means an Equipment Note substantially in the form of Exhibit B.
“Class B Optional Redemption” is defined in Section 2.06(b).
“Class B Optional Redemption Date” is defined in Section 2.06(b).
“Class B Redemption Premium” is defined in Section 2.06(b).
“Class B Stated Interest Amount” means, for any Payment Date, an amount equal to the “Stated Interest Amount” (as defined in the Master Indenture) calculated with respect to the Class B Notes. The Class B Stated Interest Amount constitutes the Stated Interest Amount for the Class B Notes.
“Closing Date” for the Series 2021-2 Notes means June 15, 2021.
“Control Party” for the Series 2021-2 Notes means the Majority Holders.
“H.15(519)” is defined in Section 2.06(c).
“Initial Purchasers” means each “Initial Purchaser” within the meaning of and as defined in the Note Purchase Agreement.
“Liquidity Facility Provider” means Landesbank Hessen-Thüringen Girozentrale, a legal entity under German public law.
“Majority Holders” means with respect to the Series 2021-2 Notes, as of any date of determination, Holders of Series 2021-2 Notes that, individually or in the aggregate, evidence more than fifty percent (50%) of the then aggregate Outstanding Principal Balance of the Series 2021-2 Notes.
“Marginal Interest” is defined in Section 2.04(b).
“Note Purchase Agreement” means the Note Purchase Agreement, dated May 25, 2021, among, inter alios, the Issuer and the Initial Purchasers signatory thereto.
“Offering Circular” means the Issuer’s final offering circular dated May 25, 2021, relating to the offering of the Series 2021-2 Notes.
“Optional Redemption” means a voluntary prepayment by the Issuer of all of the Outstanding Principal Balance of the Series 2021-2 Notes (or a Class thereof) in accordance with the terms of this Series 2021-2 Supplement.
“Rapid Amortization Additional Interest Rate” means four percent (4%) per annum.
“Rapid Amortization Date” means the date, if any, on which the Rapid Amortization Event occurs with respect to the Series 2021-2 Notes.
“Rapid Amortization Event” means, with respect to the Series 2021-2 Notes, that the aggregate Outstanding Principal Balance of the Series 2021-2 Notes (after all payments on the Series 2021-2 Notes on the applicable Payment Date) exceeds zero on the Payment Date falling in June 2027.
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“Rating Agency” means, in connection with the Series 2021-2 Notes, S&P and KBRA.
“Redemption Premium” means the Class A Redemption Premium or the Class B Redemption Premium, as applicable, which amount shall be the Redemption Premiums for each respective Class of Series 2021-2 Notes.
“Regulation S Temporary Book-Entry Notes” means Series 2021-2 Notes in the form attached as Exhibit A or Exhibit B, as the case may be, with the applicable legend for Regulation S Temporary Book-Entry Notes required by Section 2.02 of the Master Indenture inscribed on the face thereof.
“Remaining Weighted Average Life” is defined in Section 2.06(c).
“Scheduled Targeted Principal Balance” means (a) with respect to the Class A Notes and each Payment Date, the amount set forth opposite such Payment Date on Appendix B-1 to the Offering Circular under the column titled “Principal Balance ($)”; and (b) with respect to the Class B Notes and each Payment Date, the amount set forth opposite such Payment Date on Appendix B-2 to the Offering Circular under the column titled “Principal Balance ($)”; provided, that the Scheduled Targeted Principal Balance for each Class of the Series 2021-2 Notes is subject to adjustment from time to time pursuant to Section 3.14 of the Master Indenture.
“Series 2021-2 Final Maturity Date” means the Payment Date occurring in June 2051, which shall constitute the Final Maturity Date with respect to the Series 2021-2 Notes.
“Series 2021-2 Holders” means the Holders of the Series 2021-2 Notes, or any Class of such Notes, as the context may require.
“Series 2021-2 Issuance Expenses” means the Issuance Expenses relating to the issuance of the Series 2021-2 Notes.
“Series 2021-2 Notes” means Notes, designated as the Class A Notes and Class B Notes, in each case, to be issued on the Closing Date and having the terms and conditions specified in this Series 2021-2 Supplement, substantially in the respective form of Exhibit A and Exhibit B hereto, and including any and all replacements, extensions, substitutions or renewals of such Notes.
“Series 2021-2 Optional Redemption Date” is defined in Section 2.06(d).
“Series Account” means, with respect to the Series 2021-2 Notes, the 2021-2 Series Account.
“Stated Interest Amount” means, with respect to the Series 2021-2 Notes and any Payment Date, an amount equal to the Class A Stated Interest Amount and the Class B Stated Interest Amount.
“Stated Rate” means (i) with respect to the Class A Notes, the Class A Interest Rate and (ii) with respect to the Class B Notes, the Class B Interest Rate.
“Treasury Rate” is defined in Section 2.06(c).
“Unrestricted Book-Entry Notes” means Series 2021-2 Notes substantially in the form of Exhibit A or Exhibit B, with the applicable legend required by Section 2.02 of the Master Indenture for Unrestricted Book-Entry Notes inscribed on the face thereof.

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ARTICLE II
THE SERIES 2021-2 NOTES
Section 2.01 Designation of Series; Series 2021-2 Notes.
(a)There is hereby created a Series of Notes under the Series 2021-2 Indenture to be known as the “Series 2021-2 Notes” or, with respect to any Equipment Notes, the “Green Secured Railcar Equipment Notes, Series 2021-2”.
(b)There is hereby created within the Series 2021-2 Notes two separate Classes, designated as the “Class A Notes” and the “Class B Notes”. The Series 2021-2 Notes will be issued in the initial principal balance as set forth below:
(i) the Class A Notes will be issued in the initial principal balance of Five Hundred Thirty-Five Million Thirty-Eight Thousand Dollars ($535,038,000); and
(ii) the Class B Notes will be issued in the initial principal balance of Twenty-Five Million Three Hundred Ninety-Two Thousand Dollars ($25,392,000).
(c)The Class A Notes are classified as “Initial Notes”, “Series 2021-2 Notes”, “Class A Equipment Notes” and “Fixed Rate Notes”, as each such term is used in the Master Indenture. The Class B Notes are classified as “Initial Notes”, “Series 2021-2 Notes”, “Class B Equipment Notes” and “Fixed Rate Notes”, as each such term is used in the Master Indenture. The Series 2021-2 Notes will be rated on the Closing Date by S&P and KBRA, and the Series 2021-2 Notes will be paid in accordance with the Flow of Funds.
(d)The first Payment Date with respect to the Series 2021-2 Notes shall be the Payment Date in July 2021.
(e)Payments of principal on the Series 2021-2 Notes shall be payable from funds on deposit in the 2021-2 Series Account or otherwise at the times and in the amounts set forth in Article III of the Master Indenture and Sections 2.05, 2.06 and 3.02 of this Series 2021-2 Supplement.
(f)The Issuer shall pay Series 2021-2 Issuance Expenses out of the proceeds of the Series 2021-2 Notes on the Closing Date, the proceeds of the issuance of the Class E Certificates on the Closing Date and/or from Capital Contributions made to the Issuer on or prior to the Closing Date.
Section 2.02 Grant of Security Interest in 2021-2 Series Account. The Issuer hereby pledges, transfers, assigns, and otherwise conveys to the Indenture Trustee for the benefit and security of the Series 2021-2 Holders, and grants to the Indenture Trustee for the benefit and security of the Series 2021-2 Holders a security interest in and Encumbrance on, all of the Issuer’s right, title and interest, whether now existing or hereafter created or acquired and wherever located, in, to and under the assets and property described below: (a) the 2021-2 Series Account, and all funds from time to time on deposit therein; and (b) all Proceeds, accessions, profits, products, income benefits, substitutions and replacements, whether voluntary or involuntary, of and to any of the property of the Issuer described in the preceding clause (a).
Section 2.03 Authentication and Delivery.
(a)On the Closing Date, the Issuer shall sign, and shall direct the Indenture Trustee in writing pursuant to Section 2.01(b) of the Master Indenture to duly authenticate, and
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the Indenture Trustee, upon receiving such direction, (i) shall authenticate, subject to compliance with the conditions precedent set forth in Section 4.01 hereof, the Series 2021-2 Notes in accordance with such written directions, and (ii) subject to compliance with the conditions precedent set forth in Section 4.01 hereof, shall deliver such Series 2021-2 Notes to the Initial Purchasers in accordance with such written directions.
(b)The Series 2021-2 Notes are not being registered with the U.S. Securities and Exchange Commission and, after their sale to the Initial Purchasers in accordance with the Note Purchase Agreement may not be sold, transferred or otherwise disposed of except in compliance with the provisions of the Master Indenture and as set forth in the applicable Series 2021-2 Notes.
(c)In accordance with Section 2.01(c) of the Master Indenture, any Class A Equipment Notes or Class B Equipment Notes of the Series 2021-2 Notes resold in reliance on Rule 144A shall be represented by a 144A Book-Entry Note. Any Class A Equipment Notes or Class B Equipment Notes of the Series 2021-2 Notes sold in reliance on Regulation S shall initially be represented by a Regulation S Temporary Book-Entry Note and shall be exchangeable for interests in the related Unrestricted Book-Entry Note.
(d)The Series 2021-2 Notes shall be executed by manual or facsimile signature on behalf of the Issuer by a Responsible Officer and shall be substantially in the form of Exhibit A and Exhibit B, as the case may be, with the appropriate legend required by Section 2.02 of the Master Indenture inscribed on the face thereof.
Section 2.04 Interest Payments on the Series 2021-2 Notes.
(a)Interest on Series 2021-2 Notes. Interest on the Outstanding Principal Balance of each Series 2021-2 Note shall accrue during each Interest Accrual Period (i) at the Class A Interest Rate, in the case of the Class A Notes, and (ii) at the Class B Interest Rate, in the case of the Class B Notes, and, in each case, will be calculated on the basis of a 360-day year consisting of twelve 30-day months and be due and payable in arrears on each Payment Date. Notwithstanding anything to the contrary in the Master Indenture or this Series 2021-2 Supplement, the initial Interest Accrual Period for the Series 2021-2 Notes shall begin on the Closing Date and end on (but exclude) July 19, 2021.
(b)Additional Interest. If any interest payment on any Class of the Series 2021-2 Notes is not timely paid in full when due, such overdue interest will bear interest at the applicable Stated Rate, payable as Additional Interest to the extent permitted by applicable law at the times and subject to the priorities set forth in the Flow of Funds. If a Rapid Amortization Event occurs with respect to a Class of Series 2021-2 Notes, the Issuer will also be required to pay the Holders of such Class of Series 2021-2 Notes, as part of, Additional Interest, interest on each Payment Date occurring on and after the Rapid Amortization Date in an amount equal to the Rapid Amortization Additional Interest Rate multiplied by the Outstanding Principal Balance of such Class of Series 2021-2 Notes (after giving effect to all payments on the relevant Class of Series 2021-2 Notes made on such day) (such interest, the “Marginal Interest”) to the extent permitted by applicable law at the times and subject to the priorities set forth in the Flow of Funds. Such Marginal Interest due (if any) shall be (i) calculated on the basis of a 360-day year consisting of twelve 30-day months and (ii) due and payable in arrears on each Payment Date on or after the Rapid Amortization Date.
Section 2.05 Principal Payments on the Series 2021-2 Notes. The Scheduled Principal Payment Amount calculated for the Series 2021-2 Notes for each Payment Date shall be payable to the Series 2021-2 Holders on each Payment Date from amounts deposited in
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the 2021-2 Series Account on such Payment Date as provided in (and subject to the provisions of) the Flow of Funds under the Master Indenture and Section 3.02 hereof. At any time that an Early Amortization Event or an Event of Default is then continuing, or if a Rapid Amortization Event with respect to the Series 2021-2 Notes has occurred, then, in addition to the foregoing, the Outstanding Principal Balance of the Series 2021-2 Notes shall be payable on each Payment Date to the extent that amounts are available for such purpose in accordance with the Flow of Funds and Section 3.02 hereof.
Section 2.06 Prepayment of Principal on the Series 2021-2 Notes. (a) No Class A Optional Redemption may occur prior to the first anniversary of the Closing Date. Subject to the restrictions in Sections 3.12 and 3.13 of the Master Indenture, the Issuer will have the option to prepay, in an Optional Redemption on any Business Day occurring on or after the first anniversary of the Closing Date (each such date, a “Class A Optional Redemption Date”), all or a portion of the Outstanding Principal Balance of the Class A Notes (such redemption, a “Class A Optional Redemption”), for a Redemption Price equal to the sum of (i) the amount of the Outstanding Principal Balance of the Class A Notes being redeemed on such Class A Optional Redemption Date, plus (ii) accrued and unpaid interest (including Additional Interest, if any) thereon to the Class A Optional Redemption Date, plus (iii) if occurring on or prior to the second anniversary of the Closing Date, a redemption premium (the “Class A Redemption Premium”) calculated as follows:
The Class A Redemption Premium will be an amount equal to the product of (x) a fraction (expressed as a percentage), the numerator of which is the amount of the Outstanding Principal Balance of the Class A Notes being redeemed and the denominator of which is the Outstanding Principal Balance of all Class A Notes immediately prior to such redemption and (y) the excess, if any, of (i) the sum of the present values of all the scheduled payments of principal and interest based upon Scheduled Targeted Principal Balances of the Class A Notes from the Class A Optional Redemption Date to and including the second anniversary of the Closing Date (assuming full prepayment on such date) discounted monthly to the Class A Optional Redemption Date at a rate equal to the Treasury Rate plus three-quarters of one percent (0.75%), based on a 360-day year of twelve 30-day months, over (ii) the Outstanding Principal Balance of the Class A Notes, plus any accrued but unpaid interest thereon.
(b)No Class B Optional Redemption may occur prior to the first anniversary of the Closing Date or while any Class A Notes are Outstanding unless the same are concurrently redeemed in full (or, if no Early Amortization Event has occurred and is continuing, a partial Optional Redemption of the Class B Notes may be effected if the Issuer concurrently effects an Optional Redemption in part of the Class A Notes within such Series in the same proportion as the Optional Redemption in part of the Class B Notes). Subject to the restrictions in Sections 3.12 and 3.13 of the Master Indenture, the Issuer will have the option to prepay, in an Optional Redemption on any on any Business Day occurring on or after the first anniversary of the Closing Date (each such date, a “Class B Optional Redemption Date”), all or a portion of the Outstanding Principal Balance of the Class B Notes (any such redemption, a “Class B Optional Redemption”), for a Redemption Price equal to the sum of (i) the amount of the Outstanding Principal Balance of the Class B Notes being redeemed on such Class B Optional Redemption Date, plus (ii) accrued and unpaid interest (including Additional Interest, if any) thereon to the Class B Optional Redemption Date, plus (iii) if occurring on or prior to the second anniversary of the Closing Date, a redemption premium (the “Class B Redemption Premium”) calculated as follows:
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The Class B Redemption Premium will be an amount equal to the product of (x) a fraction (expressed as a percentage), the numerator of which is the amount of the Outstanding Principal Balance of the Class B Notes being redeemed and the denominator of which is the Outstanding Principal Balance of all Class B Notes immediately prior to such redemption and (y) the excess, if any, of (i) the sum of the present values of all the scheduled payments of principal and interest based upon Scheduled Targeted Principal Balances of the Class B Notes from the Class B Optional Redemption Date to and including the second anniversary of the Closing Date (assuming full prepayment on such date), discounted monthly to the Class B Optional Redemption Date at a rate equal to the Treasury Rate plus three-quarters of one percent (0.75%), based on a 360-day year of twelve 30-day months; over (ii) the aggregate Outstanding Principal Balance of the Class B Notes plus any accrued but unpaid interest thereon.
(c)For purposes of calculating the applicable Redemption Premium, the term “Treasury Rate” means, with respect to each applicable Series 2021-2 Note, a per annum rate (expressed as a monthly equivalent and as a decimal and, in the case of United States Treasury bills, converted to a bond equivalent yield), determined to be the per annum rate equal to the monthly yield to maturity for United States Treasury securities maturing on the Average Life Date of such applicable Series 2021-2 Note as determined by interpolation between the most recent weekly average yields to maturity for two series of United States Treasury securities, (i) one maturing as close as possible to, but earlier than, the Average Life Date of such Series 2021-2 Note and (ii) the other maturing as close as possible to, but later than, the Average Life Date of such Series 2021-2 Note, in each case, as published in the most recent H.15(519) (or, if a weekly average yield to maturity of United States Treasury securities maturing on the Average Life Date of such Series 2021-2 Note is reported in the most recent H.15(519), as published in H.15(519)). “H.15(519)” means “Statistical Release H.15(519), Selected Interest Rates,” or any successor publication published by the Board of Governors of the Federal Reserve System. The most recent H.15(519) means the latest H.15(519) which is published prior to the close of business on the third (3rd) Business Day preceding the scheduled prepayment date.
The term “Average Life Date” of each applicable Series 2021-2 Note means the date which follows the prepayment date by a period equal to the Remaining Weighted Average Life of such Series 2021-2 Note. The “Remaining Weighted Average Life” of a Series 2021-2 Note at the prepayment or determination date of such Series 2021-2 Note shall be the number of days equal to the quotient obtained by dividing (a) the sum of the products obtained by multiplying (i) the Scheduled Targeted Principal Balances for each remaining Payment Date (from the applicable Optional Redemption Date to the Payment Date occurring in June 2023, in the case of the Class A Notes, and the Payment Date occurring in June 2024, in the case of the Class B Notes, assuming full prepayment on such Payment Date, as applicable) by (ii) the number of days from and including the prepayment or determination date to but excluding the scheduled payment date of such principal payment, by (b) the Outstanding Principal Balance of the applicable Series 2021-2 Notes on such date of prepayment or determination. The Issuer will calculate (or cause to be calculated) the applicable Redemption Price and Redemption Premium (if any) and deliver such information in writing to the Indenture Trustee at the time that it gives notice of an Optional Redemption pursuant to Sections 3.12 and 3.13 of the Master Indenture.
(d)Subject to the restrictions in Sections 3.12 and 3.13 of the Master Indenture, the Issuer will have the option to prepay, in an Optional Redemption on any Business Day occurring following the Payment Date occurring in June 2023 (each such
7

Payment Date, a “Series 2021-2 Optional Redemption Date”), all of the Outstanding Principal Balance of the Series 2021-2 Notes, for the Redemption Price equal to the Outstanding Principal Balance of the Series 2021-2 Notes, plus accrued and unpaid interest thereon (including Additional Interest, if any) to the Series 2021-2 Optional Redemption Date; provided, however, that such Redemption Price shall not include any Redemption Premium.
(e)Any Optional Redemption may be funded with funds in the Collections Account, with the proceeds of Additional Notes or cash Capital Contributions or with any other funds of the Issuer.
(f)Notwithstanding anything herein to the contrary, no Redemption Premium will be due as a result of (i) any Permitted Discretionary Sales which, in the aggregate, are less than 25% of the sum of (x) the Adjusted Value of the Portfolio Railcars owned by the Issuer on the Initial Closing Date calculated as of the Initial Closing Date and (y) the Adjusted Value of the Portfolio Railcars acquired by the Issuer after the Initial Closing Date (if any) calculated as of the relevant Delivery Date, (ii) any Involuntary Railcar Dispositions, Purchase Option Dispositions or Scrap Value Disposition, or (iii) in respect of, or during, an Early Amortization Event or if an Event of Default shall have occurred and is continuing.
Section 2.07 Manner of Payment. Except as otherwise provided in Section 2.05 of the Master Indenture, all payments on the Series 2021-2 Notes payable on each Payment Date shall be paid to the Series 2021-2 Holders reflected in the Register as of the related Record Date by wire transfer of immediately available funds for receipt prior to 2:00 p.m. (New York City time) on such Payment Date. Any payments received by the Series 2021-2 Holders after 2:00 p.m. (New York City time) on any day shall be considered to have been received on the next succeeding Business Day.
Section 2.08 Restrictions on Transfer. On the Closing Date, the Issuer shall sell the Series 2021-2 Notes to the Initial Purchasers pursuant to the Note Purchase Agreement and deliver such Series 2021-2 Notes in accordance herewith and therewith. Thereafter, no Series 2021-2 Note may be sold, transferred or otherwise disposed of except in compliance with the provisions of the Master Indenture. Except as provided in the Master Indenture, the Indenture Trustee shall have no obligations or duties with respect to determining whether any transfers of the Series 2021-2 Notes are made in accordance with the Securities Act or any other law; provided that with respect to Definitive Notes, the Indenture Trustee shall enforce such transfer restrictions in accordance with the terms set forth in the Series 2021-2 Indenture.
Section 2.09 Final Maturity Date. The Outstanding Principal Balance of the Series 2021-2 Notes together with all accrued and unpaid interest (including all Additional Interest) thereon, and other amounts payable by the Issuer to the Series 2021-2 Holders pursuant to the terms of the Series 2021-2 Indenture, shall be due and payable in full on the earlier to occur of (i) the date on which the Series 2021-2 Notes have been accelerated in accordance with the provisions of Section 4.02 of the Master Indenture and (ii) the Series 2021-2 Final Maturity Date.
Section 2.10 Liquidity Facility Provider. All of the Issuer’s obligations to the Liquidity Facility Provider under the Initial Liquidity Facility shall be part of the Secured Obligations under the Master Indenture.
ARTICLE III
2021-2 SERIES ACCOUNT
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Section 3.01 2021-2 Series Account. The Indenture Trustee shall establish on the Closing Date pursuant to Sections 3.01 and 3.07 of the Master Indenture and shall maintain, so long as any Series 2021-2 Note is Outstanding, an Indenture Account which shall be designated as the “2021-2 Series Account,” which account shall be held in the name of the Indenture Trustee for the benefit of the Series 2021-2 Holders, and which account constitutes a Series Account for the Series 2021-2 Notes for all purposes under the Master Indenture. All deposits of funds for the benefit of the Series 2021-2 Holders from the Collections Account and the Liquidity Reserve Account shall be accumulated in, and withdrawn from, the 2021-2 Series Account in accordance with the provisions of the Series 2021-2 Indenture. Notwithstanding anything to the contrary herein, amounts on deposit in the 2021-2 Series Account shall not be invested.
Section 3.02 Distributions from 2021-2 Series Account. On each Payment Date (to the extent sufficient cleared and immediately available funds are available in the 2021-2 Series Account), the Indenture Trustee, as specified in the related Payment Date Schedule with respect to the Flow of Funds, shall distribute funds then on deposit in the 2021-2 Series Account to the Series 2021-2 Holders in accordance with Section 3.11 of the Master Indenture.
Section 3.03 Liquidity Reserve Target Amount. On the Closing Date, the Liquidity Reserve Target Amount will be $0.
ARTICLE IV
CONDITIONS TO ISSUANCE
Section 4.01 Conditions to Issuance. The Indenture Trustee shall not authenticate the Series 2021-2 Notes unless (a) all conditions to the issuance of the Series 2021-2 Notes under the Note Purchase Agreement shall have been satisfied, and (b) the Issuer shall have delivered a certificate to the Indenture Trustee to the effect that all conditions set forth in the Note Purchase Agreement shall have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Master Indenture Representations and Warranties. To induce the Series 2021-2 Holders to purchase the Series 2021-2 Notes, the Issuer hereby makes to the Indenture Trustee for the benefit of the Series 2021-2 Holders, as of the Closing Date and as of the other dates specified for the applicable representations in the Master Indenture, all of the representations and warranties set forth in Section 5.01 of the Master Indenture.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Ratification of Master Indenture. As supplemented by this Series 2021-2 Supplement, the Master Indenture is in all respects ratified and confirmed and the Master Indenture as so supplemented by this Series 2021-2 Supplement shall be read, taken and construed as one and the same instrument. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Master Indenture, the terms and provisions of this Series 2021-2 Supplement shall govern.
Section 6.02 Counterparts. This Series 2021-2 Supplement may be executed in two or more counterparts, and by different parties on separate counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.
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Section 6.03 Governing Law. THIS SERIES 2021-2 SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6.04 Notices to the Rating Agency. Whenever any notice or other communication is required to be given to the Rating Agencies in respect of the Series 2021-2 Notes pursuant to the Master Indenture, a Series Supplement or this Series 2021-2 Supplement, such notice or communication shall be delivered to S&P, at 55 Water Street, New York, NY 10041, Attention: S&P Surveillance (Facsimile: (212) 438-0122) and to KBRA, at 805 Third Ave., 29th Floor, New York, NY 10022, Attention: ABS Surveillance.
Section 6.05 Notices to Liquidity Facility Provider. Whenever any notice or other communication is required to be given to the Liquidity Facility Provider in respect of the Series 2021-2 Notes pursuant to the Master Indenture, a Series Supplement or this Series 2021-2 Supplement, such notice or communication shall be delivered to Landesbank Hessen-Thüringen Girozentrale, at Neue Mainzer Strasse 52-58, 60311 Frankfurt Am. Main, Germany, Attn: Fabian Huppertz, Land Transport, Telephone: +49 69 91 32 76 02, with a copy to Landesbank Hessen-Thüringen Girozentrale, New York Branch, at 420 Fifth Avenue, New York, NY 10018, Attention: Land Transport Finance, Telephone: 212-703-5333, Facsimile: 212-703-5256, Email: Joe.Devoe@helabany.com; Alec.Tasooji@helabany.com.
Section 6.06 Amendments and Modifications. The terms of this Series 2021-2 Supplement may be waived, modified or amended only in a written instrument signed by each of the Issuer and the Indenture Trustee in accordance with Article IX of the Master Indenture. Amendments, waivers and modifications of this Series 2021-2 Supplement that constitute matters set forth in clauses (i) through (viii) of Section 9.02(a) of the Master Indenture, may be effected only with the prior written Direction of Holders of each Outstanding Series 2021-2 Note adversely affected thereby.
[Signature pages follow]
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Series 2021-2 Supplement to be duly executed and delivered all as of the day and year first above written.
TRP 2021 LLC

By: Triumph Rail Holdings, LLC, its sole equity member and manager

By: TRIP Rail Holdings LLC, its sole equity member and manager

By: Trinity Industries Leasing Company, its agent

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director
11

U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee

By: /s/ Chris McKim
Name: Chris McKim
Title: Vice President
12
Exhibit 10.4
EXECUTION VERSION







U.S. $535,000,000

TERM LOAN AGREEMENT,

dated as of May 18, 2021

among

TRIP RAILCAR CO., LLC,

as Borrower,

TRINITY INDUSTRIES LEASING COMPANY,
as Servicer,

TRIP RAIL HOLDINGS LLC,

THE BANKS AND OTHER LENDING INSTITUTIONS
FROM TIME TO TIME PARTY HERETO,

CREDIT SUISSE AG, NEW YORK BRANCH,
as Agent,

and

U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent and Depositary
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1
SECTION 1.01 Defined Terms
1
SECTION 1.02 Computation of Time Periods and Other Definitional Provisions
48
SECTION 1.03 Rates; LIBOR Notification
48
SECTION 1.04 Making LIBOR Rate Loans
48
ARTICLE II THE CREDIT FACILITY
51
SECTION 2.01 Commitment to Lend
51
SECTION 2.02 Procedures for Borrowing
51
SECTION 2.03 Notice to Lenders; Funding of Loans
53
SECTION 2.04 Evidence of Loans
55
SECTION 2.05 Interest
56
SECTION 2.06 Repayment and Maturity of Loans
56
SECTION 2.07 Prepayments
56
SECTION 2.08 Termination and Increase of Commitments
64
SECTION 2.09 Unused Fee
65
SECTION 2.10 Pro-rata Treatment
66
SECTION 2.11 Sharing of Payments
66
SECTION 2.12 Payments; Computations; Proceeds of Collateral, Etc
67
SECTION 2.13 Adjustments to Advance Rate, Flex Advance Rate, Borrowing Base and Flex Borrowing Base
68
SECTION 2.14 Interest Rate Risk Management
68
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
70
SECTION 3.01 Taxes
70
SECTION 3.02 Illegality
73
SECTION 3.03 Increased Costs and Reduced Return
73
SECTION 3.04 Funding Losses
75
SECTION 3.05 Market Disruption
76
ARTICLE IV CONDITIONS
77
SECTION 4.01 [Reserved]
77
SECTION 4.02 Conditions to the Facility Closing Date
77
SECTION 4.03 Conditions to the Funding Date
79
ARTICLE V REPRESENTATIONS AND WARRANTIES
82
SECTION 5.01 Organization and Good Standing
82
SECTION 5.02 Power; Authorization; Enforceable Obligations
82
SECTION 5.03 No Conflicts
83
SECTION 5.04 No Default
83
SECTION 5.05 Financial Condition.
83
SECTION 5.06 No Material Change
84
SECTION 5.07 Title to Properties
84
    i                    Loan Agreement
TABLE OF CONTENTS
(continued)
Page

SECTION 5.08 Litigation
85
SECTION 5.09 Taxes
85
SECTION 5.10 Compliance with Law
85
SECTION 5.11 ERISA
85
SECTION 5.12 Subsidiaries
86
SECTION 5.13 Governmental Regulations, Etc
86
SECTION 5.14 Purpose of Loans
87
SECTION 5.15 Labor Matters
87
SECTION 5.16 Environmental Matters
87
SECTION 5.17 Intellectual Property
87
SECTION 5.18 Solvency
88
SECTION 5.19 Disclosure
88
SECTION 5.20 Security Documents
88
SECTION 5.21 Ownership
88
SECTION 5.22 Lease Documents
88
SECTION 5.23 Sole Business of the Borrower
89
SECTION 5.24 Separate Corporate Structure; No Employees
89
SECTION 5.25 Leases
90
SECTION 5.26 Railcars
91
SECTION 5.27 Sanctioned Person
91
SECTION 5.28 Beneficial Ownership
91
SECTION 5.29 Tax Status
91
SECTION 5.30 Additional Representations
91
ARTICLE VI AFFIRMATIVE COVENANTS
92
SECTION 6.01 Information
92
SECTION 6.02 Preservation of Existence and Franchises; Authorizations, Approvals and Recordations
94
SECTION 6.03 Books and Records
95
SECTION 6.04 ERISA
95
SECTION 6.05 Payment of Taxes and Other Debt
95
SECTION 6.06 Insurance; Certain Proceeds
95
SECTION 6.07 Operation, Use and Maintenance
97
SECTION 6.08 Replacement of Parts; Modifications and Improvements
98
SECTION 6.09 Use of Proceeds
99
SECTION 6.10 Audits/Inspections/Appraisals
99
SECTION 6.11 Stamp Tax
101
SECTION 6.12 Follow-On Leases
101
SECTION 6.13 Accounts
101
SECTION 6.14 Servicer
102
SECTION 6.15 Action after an Event of Default
103
ii                    Loan Agreement
TABLE OF CONTENTS
(continued)
Page

SECTION 6.16 Compliance with Separate Corporate Structure; Employees
103
SECTION 6.17 Required Disclosures
103
SECTION 6.18 Change of Name
103
ARTICLE VII NEGATIVE COVENANTS
104
SECTION 7.01 Limitation on Debt
104
SECTION 7.02 Restriction on Liens
104
SECTION 7.03 Nature of Business
104
SECTION 7.04 Consolidation, Merger and Dissolution
104
SECTION 7.05 Asset Dispositions
104
SECTION 7.06 Investments
105
SECTION 7.07 Restricted Payments, etc
105
SECTION 7.08 Transactions with Affiliates
106
SECTION 7.09 Fiscal Year; Organization and Other Documents
106
SECTION 7.10 Additional Negative Pledges
106
SECTION 7.11 Impairment of Security Interests
107
SECTION 7.12 [Reserved]
107
SECTION 7.13 No Amendments to the Lease Documents
107
SECTION 7.14 Lease Default
107
SECTION 7.15 Consolidation with Any Other Person
107
SECTION 7.16 Limitations on Employees, Subsidiaries
107
SECTION 7.17 Independence of Covenants
107
SECTION 7.18 Funds to Repay Loans
107
SECTION 7.19 Sanctioned Person
108
SECTION 7.20 Tax Status
108
ARTICLE VIII OTHER COVENANTS
108
SECTION 8.01 Quiet Enjoyment
108
ARTICLE IX DEFAULTS
108
SECTION 9.01 Events of Default
108
SECTION 9.02 Acceleration; Remedies
111
ARTICLE X AGENCY PROVISIONS
113
SECTION 10.01 Appointment; Authorization
113
SECTION 10.02 Delegation of Duties
114
SECTION 10.03 Exculpatory Provisions
114
SECTION 10.04 Reliance on Communications
114
SECTION 10.05 Notice of Default
115
SECTION 10.06 Credit Decision; Disclosure of Information by the Agent or the Collateral Agent
115
SECTION 10.07 Indemnification
116
SECTION 10.08 Agent and Collateral Agent in Their Individual Capacities
117
SECTION 10.09 Successor Agents
117
iii                    Loan Agreement
TABLE OF CONTENTS
(continued)
Page

SECTION 10.10 Request for Documents
117
ARTICLE XI MISCELLANEOUS
118
SECTION 11.01 Notices and Other Communications.
118
SECTION 11.02 No Waiver; Cumulative Remedies
118
SECTION 11.03 Amendments, Waivers and Consents
119
SECTION 11.04 Expenses
120
SECTION 11.05 Indemnification
121
SECTION 11.06 Successors and Assigns
124
SECTION 11.07 Confidentiality
128
SECTION 11.08 Set-off
129
SECTION 11.09 Interest Rate Limitation
129
SECTION 11.10 Counterparts
130
SECTION 11.11 Integration
130
SECTION 11.12 Survival of Representations and Warranties
131
SECTION 11.13 Severability
131
SECTION 11.14 Headings
131
SECTION 11.15 Marshalling; Payments Set Aside
131
SECTION 11.16 Performance by the Agent
132
SECTION 11.17 Third Party Beneficiaries
132
SECTION 11.18 No Proceedings
132
SECTION 11.19 Governing Law; Submission to Jurisdiction
133
SECTION 11.20 Waiver of Jury Trial
133
SECTION 11.21 Binding Effect
133
SECTION 11.22 The Patriot Act
134
SECTION 11.23 Acknowledgement and Consent to Bail-In of EEA Financial Institutions
134
SECTION 11.24 Force Majeure
134
SECTION 11.25 Acknowledgement Regarding Any Supported QFCs
134



iv                    Loan Agreement
TABLE OF CONTENTS
(cont.)

SCHEDULES:
Schedule A    -    Industry Concentration Chart
Schedule B    -    Lenders and Commitments
Schedule C    -    Required Consents, Authorizations, Notices and Filings
Schedule D    -    Insurance
Schedule E    -    Notice Addresses; Agent’s Office

EXHIBITS:
Exhibit A-1    -    Form of Request
Exhibit A-2    -    Form of Notice of Borrowing
Exhibit A-3    -    Form of Collateral Certificate
Exhibit A-4    -    Form of Financing Notice
Exhibit A-5    -    Form of Monthly Report
Exhibit A-6    -    Form of Borrowing Base Certificate
Exhibit A-7    -    Form of Flex Borrowing Base Certificate
Exhibit B    -    Form of Note
Exhibit C    -    Form of Assignment and Acceptance
Exhibit D-1    -    Form of Opinion of Counsel for the Borrower and the Servicer
Exhibit D-2    -    Form of Opinion of In-House Counsel for the Borrower and the Servicer
Exhibit D-3    -    Form of Opinion of Delaware Trust Counsel for the Borrower
Exhibit D-4    -    Form of Opinion of Special STB Counsel for the Borrower
Exhibit D-5    -    Form of Opinion of Special Canadian Counsel for the Agent
Exhibit E-1    -    Form of Security Agreement
Exhibit E-2    -    Form of Perfection Certificate
Exhibit E-3    -    Form of Payment Notice/Lessor Rights Notice
Exhibit E-4    -    Form of Notice of Lease Assignment
Exhibit F    -    Form of Depository Agreement
Exhibit G    -    Form of Servicing Agreement
Exhibit H    -    Form of Insurance Management Agreement
Exhibit I-1    -    Form of Full Service Freight Railcar Lease Agreement
Exhibit I-2    -    Form of Full Service Tank Railcar Lease Agreement
Exhibit I-3    -    Form of Net Freight Railcar Lease Agreement
Exhibit I-4    -    Form of Net Tank Railcar Lease Agreement
Exhibit J    -    Form of Asset Contribution and Purchase Agreement
Exhibit K    -    Form of Administrative Services Agreement
Exhibit L    -    Form of Officer’s Certificate

                        v                    Loan Agreement

TERM LOAN AGREEMENT
This Term Loan Agreement is dated as of May 18, 2021 and is among TRIP RAILCAR CO., LLC, a Delaware limited liability company, TRINITY INDUSTRIES LEASING COMPANY, a Delaware corporation, TRIP RAIL HOLDINGS LLC, a Delaware limited liability company, the banks and other lending institutions from time to time party hereto, CREDIT SUISSE AG, NEW YORK BRANCH, as Agent for the Lenders, and U.S. BANK NATIONAL ASSOCIATION, in its capacity as Collateral Agent and Depositary for the Protected Parties referred to herein.
PRELIMINARY STATEMENTS
WHEREAS, the Lenders have agreed to provide the Borrower with a loan facility (the “Facility”) to finance the acquisition of railcars and related leases by the Borrower from TRIP Rail Holdings LLC. The Facility will be secured by, among other things, the railcars and related leases;
NOW THEREFORE, in consideration of the premises, the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party agrees as follows:
ARTICLE I.

DEFINITIONS
SECTION 1.01. Defined Terms. The following terms, as used herein, have the following meanings:
“A.A.R.” means the Association of American Railroads, and its successors.
“Acceptable Derivatives Agreement” means one or more Derivatives Agreements with a term that extends at least until the anticipated Termination Date, in the form of any of the following, in each case with monthly settlement and having a notional amount equal to, in the aggregate taking into account all Acceptable Derivatives Agreements, between 80% and 110% of the outstanding principal amount of the Loans on the date of such Derivatives Agreement, with such notional amount declining automatically according to a schedule which is consistent with the then anticipated principal repayments of the Loans:
(i)    an interest rate cap agreement to be entered into at the then prevailing market rate, which for the avoidance of doubt, shall not result in any additional upfront cost to the Borrower or under the Transaction Documents;
(ii)    an interest rate swap agreement to be entered into at the then prevailing market rate, which for the avoidance of doubt, shall not result in any additional upfront cost to the Borrower or under the Transaction Documents; or
(iii)    any other Derivatives Agreement to be entered into at the then prevailing market rate, which for the avoidance of doubt, shall not result in any additional upfront cost to the Borrower or under the Transaction Documents, and that is approved by (1) the Agent and the Required Lenders, in the case of a Hedging Event described in
        Loan Agreement

clause (i) of the definition of such term, or (2) all the Committed Lenders, in the case of a Hedging Event described in clause (ii) of the definition of such term.
“Accounts” means, collectively, the Custody Account, the Collection Account, the Expense Reserve Account, the Modifications and Improvements Account, the Discretionary Account and the Liquidity Reserve Account.
“Adjusted LIBOR Rate Loan” means any Loan for so long as it bears interest at a rate determined by reference to the Adjusted LIBOR Rate.
“Adjusted LIBOR Rate” means, for any Interest Period and any LIBOR Rate Loan made or continued during such Interest Period, the per annum rate equal to the greater of (I) 0.00% per annum and (II) the rate obtained by dividing (A) LIBOR for such Interest Period by (B) 1.00 minus the Applicable Reserve Requirement.
“Administrative Services Agreement” means the Administrative Services Agreement, substantially in the form of Exhibit K hereto, dated the Facility Closing Date, between the Borrower and TILC.
“Advance Rate” means, as of any Calculation Date,
(a) with respect to any Portfolio Railcar which is On-Lease as of such Calculation Date, the Maximum Advance Rate;
(b) with respect to any Portfolio Railcar that has been Off-Lease as of such Calculation Date for a period of: (i) less than or equal to 30 days, the Maximum Advance Rate; (ii) more than or equal to 31 days and less than or equal to 60 days, the Maximum Advance Rate minus 5.0%; (iii) more than or equal to 61 days and less than or equal to 90 days, the Maximum Advance Rate minus 10.0%; (iv) more than or equal to 91 days and less than or equal to 120 days, the Maximum Advance Rate minus 17.5%; or (v) more than or equal to 121 days or was Off-Lease on the Funding Date and remains Off-Lease, 50.00%; and
(c) with respect to any Portfolio Railcar which is subject to an Eligible Lease to a Lessee who is then subject to any proceeding of the type described in Section 9.01(g), 50.00%;
provided that, the Advance Rate with respect any Portfolio Railcar
(A) which is subject to clause (a) above, will continue to apply to such Portfolio Railcar until the next Calculation Date on which such Portfolio Railcar is Off-Lease, (B) which is subject to clause (b) above, will continue to apply with respect to such Portfolio Railcar (subject to further adjustment, if applicable, in accordance with such clause (b)) until the next Calculation Date on which such Portfolio Railcar becomes On-Lease, and (C) which is subject to clause (c) above, will continue to apply to such Portfolio Railcar until the next Calculation Date on which the applicable Lessee is no longer subject to any proceeding of the type described in Section 9.01(g).
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
                            2                    Loan Agreement

“Affiliate” means, with respect to any Person, (i) any Person that directly, or indirectly through one or more intermediaries, controls such Person (including all directors and officers of such Person) (a “Controlling Person”) or (ii) any other Person which is controlled by or is under common control with a Controlling Person. As used herein, the term “control” means (i) with respect to any Person having voting shares or their equivalent and elected directors, managers or Persons performing similar functions, the possession, directly or indirectly, of the power to vote 10.00% or more of the Equity Interests having ordinary voting power of such Person, (ii) the ownership, directly or indirectly, of 10.00% or more of the Equity Interests in any Person or (iii) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting shares or their equivalent, by contract or otherwise.
“Agent” means Credit Suisse AG, New York Branch, in its capacity as agent for the Lenders hereunder and under the other Loan Documents, and its successor or successors in such capacity.
“Agent’s Office” means the Agent’s address and, as appropriate, account as set forth and identified as such in Schedule E, or such other address and account as the Agent may from time to time notify to the Borrower and the Lenders.
“Agreed-Upon Procedures Audit” has the meaning set forth in Section 6.10(b).
“Aggregate FMV” means, as of any date of determination with respect to any specified group of Railcars, the aggregate of the Applicable Valuations of all such Railcars (including, if Aggregate FMV is calculated on the Funding Date, any such Railcars which will become Portfolio Railcars on the Funding Date, but excluding any such Railcars which will cease to be Portfolio Railcars at the time of such determination pursuant to Section 8.12 of the Security Agreement or otherwise).
“Aggregated Default Interest” has the meaning set forth in Section 2.05(a).
“Agreement” means this Term Loan Agreement, as amended, supplemented, or otherwise modified from time to time.
“Anti-Corruption Laws” means all laws, rules, regulations, as amended, applicable to the Facility Parties concerning or related to bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and all other applicable anti-bribery and corruption laws.
“Anti-Money Laundering Laws” has the meaning assigned to such term in Section 5.10(b).
“Applicable Law” means, with reference to any Person, all laws (foreign or domestic), statutes, rulings, codes, ordinances and treaties, including the FRA and the Interchange Rules, and all judgments, decrees, injunctions, writs and orders of any court, arbitrator or other Governmental Authority, and all rules, regulations, orders, interpretations, directives, licenses and permits of any governmental body, instrumentality, agency or other regulatory authority applicable to such Person or its property or in respect of its operations, and for the avoidance of doubt shall include any Existing Law (as defined in Section 3.03(b)).
                            3                    Loan Agreement

“Applicable Rate” means, for any day during any Interest Period, the sum of (a) the Adjusted LIBOR Rate for such Interest Period plus (b) the Facility Margin plus (c) at any time after the Step-Up Date, the Step-Up Margin.
“Applicable Reserve Requirement” means, at any time, for any LIBOR Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D of the Board of Governors of the Federal Reserve System) under regulations issued from time to time by the Board of Governors of the Federal Reserve System or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Adjusted LIBOR Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include LIBOR Rate Loans. A LIBOR Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on LIBOR Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
“Applicable Valuation” means with respect to any Railcar on any date of calculation, the Depreciated Appraised Value of such Railcar on such date of calculation.
“Appraised Value”, with respect to any Railcar, means the amount set forth in the most recent Independent Appraisal (using income approach valuation methodology) with respect thereto as the amount, expressed in terms of currency, that may reasonably be expected for property exchanged between a willing buyer and a willing seller with equity to both, neither under any compulsion to buy or sell and both fully aware of all relevant, reasonably ascertainable facts.
“Approved Fund” means (i) with respect to any Committed Lender, an entity (whether a corporation, partnership, limited liability company, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is managed by such Committed Lender or an Affiliate of such Committed Lender, (ii) with respect to any Committed Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Committed Lender or by an Affiliate of such investment advisor, (iii) any Conduit Lender, and (iv) with respect to any Conduit Lender, any of its Support Parties.
“Asset Contribution and Purchase Agreement” means the Asset Contribution and Purchase Agreement dated as of the Facility Closing Date, substantially in the form of Exhibit J hereto, between TRIP and the Borrower.
“Asset Disposition” means any sale, lease or other disposition by the Borrower (other than the lease of a Railcar pursuant to an Eligible Lease) of any Portfolio Railcar, Portfolio
                            4                    Loan Agreement

Lease or other item of Collateral, whether by sale, lease, transfer, Event of Loss, Condemnation or otherwise.
“Assignment and Acceptance” means an Assignment and Acceptance, substantially in the form of Exhibit C hereto, under which an interest of a Lender hereunder is transferred to an Eligible Assignee pursuant to Section 11.06(b).
“Availability Period” means the period from the Facility Closing Date to and including July 15, 2021.
“Available Commitment” means, with respect to any Committed Lender, the aggregate of such Committed Lender’s Commitment.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then removed from the definition of “Interest Period” pursuant to Section 10.4.
“Back-up Servicer” has the meaning set forth in the Servicing Agreement.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978, as amended, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdiction from time to time affecting the rights of creditors generally.
“Base Component” has the meaning set forth in the Servicing Agreement.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Floor, (b) the Prime Rate in effect on such day and (c) the Federal Funds Rate in effect on such day plus 1.00%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Rate, respectively.
                            5                    Loan Agreement

“Benchmark” means, initially, the Adjusted LIBOR Rate; provided, that, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the Adjusted LIBOR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 1.04.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Agent for the applicable Benchmark Replacement Date:
(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3) the sum of: (a) the alternate benchmark rate that has been selected by the Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for asset-backed lending transactions substantially similar hereto at such time and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1)    for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Agent:
(a)    the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; or
(b)    the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that
                            6                    Loan Agreement

would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor;
(2)    for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for asset-backed lending transactions substantially similar hereto; provided, that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational change (including any change to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Agent decides, in its reasonable discretion, may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Agent decides, in its reasonable discretion, is reasonably necessary in connection with the administration of this Agreement or any other Loan Document).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1)    in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(2)    in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; and
(3)    in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice
                            7                    Loan Agreement

of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Majority Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1)    a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with
                            8                    Loan Agreement

Section 1.04 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and any other Loan Document and in accordance with Section 1.04.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in the form provided by the Agent.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230, as amended.
“Bill of Sale” means a bill of sale delivered to the Borrower from the seller with respect to a Railcar and, if applicable, any related Lease in connection with the Borrower’s purchase of such Railcar and related Lease from such seller.
“Borrower” means TRIP Railcar Co., LLC, a Delaware limited liability company, and its successors.
“Borrower Change of Control” means TRIP shall cease to own directly 100.00% of the Equity Interests of the Borrower on a fully diluted basis assuming the conversion and exercise of all outstanding Equity Equivalents (whether or not such securities are then currently convertible or exercisable).
“Borrowing” means a borrowing of Loans pursuant to Section 2.01 hereof.
“Borrowing Base” means, as of any date of determination, a Dollar amount equal to the difference between (1) the aggregate of the product of the applicable Advance Rate for each Eligible Railcar multiplied by the Aggregate FMV of each such Railcar less (2) the Excluded Assets Amount.
    “Borrowing Base Certificate” means a certificate of the chief financial officer or chief accounting officer of each TRIP Party, in the form of Exhibit A6 hereto or such other form as may hereafter be agreed by the Borrower (and/or the Servicer, as applicable) and the Agent, delivered to the Lenders pursuant to Section 2.02(c) or 6.01(d), as applicable, and setting forth in reasonable detail the calculation of the Borrowing Base as of the date required by such Sections and such other information required thereby.
“Borrower LLC Agreement” means the amended and restated limited liability company agreement of the Borrower dated as of May 18, 2021.
“Borrowing Base Deficiency” means, as of any date of determination, the Dollar amount of the excess, if any, of (x) the aggregate outstanding principal amount of the Loans as of such date over (y) the Borrowing Base calculated as of such date.
“Business Day” means any day of the week, other than a Saturday or a Sunday, on which banks are open for business in London for the conduct of transactions in the London interbank market and on which commercial banks in New York City and Dallas, Texas are open for business and are not required or authorized by law, executive order or governmental decree to be closed.
                            9                    Loan Agreement

“Calculation Date” means, with respect to the Funding Date, the last day of the calendar month immediately preceding the Funding Date and, with respect to any Settlement Date, the last day of the calendar month immediately preceding such Settlement Date.
“Capital Contributions” means contributions of cash or property to the Borrower from TRIP.
“Capital Lease” of any Person means any lease of property (whether real, personal or mixed) by such Person as lessee which would, in accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of such Person.
“Cash Equivalents” means one or more of the following obligations which (i) are acquired at a purchase price of not greater than par, (ii) have a fixed principal amount due at maturity, if applicable, and (iii) unless full payment of principal is paid in cash upon the exercise of the option, do not include any embedded options (i.e., not callable, putable or convertible): (a) marketable direct obligations issued by, or fully and unconditionally guaranteed by, the United States Government or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition, (b) certificates of deposit, time deposits, demand deposits, eurocurrency time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any United States commercial bank having a long-term unsecured debt rating of at least “AA-” by S&P and “A1” by Moody’s or, in substitution of Moody’s if Moody’s ceases publishing ratings of long-term senior unsecured debt of commercial banks, carrying an equivalent rating by another internationally recognized credit rating agency, (c) commercial paper of an issuer rated at the time of acquisition at least “A-1” by S&P and “P-1” by Moody’s or, in substitution of Moody's if Moody's ceases publishing ratings of commercial paper issuers generally, carrying an equivalent rating by an internationally recognized rating agency, and maturing within one year from the date of acquisition, (d) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States Government, (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at the time of acquisition at least “A-1” by S&P and “P-1” by Moody’s, or, in substitution of Moody's if Moody’s ceases publishing ratings of such state, commonwealth, territory, political subdivision, taxing authority or foreign government , carrying an equivalent rating by an internationally recognized rating agency, (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by a commercial bank satisfying the requirements of clause (b) of this definition or (g) shares of money market mutual or similar funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 thereunder and that, at the time of such investment, are rated “Aaa” by Moody’s and “AAA” by S&P (or carrying an equivalent rating by another internationally recognized rating agency in substitution of Moody’s if Moody’s ceases publishing ratings with respect to Cash Equivalents of the type described in this clause (g)) or invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. Each rating by S&P described in this
                            10                    Loan Agreement

definition must be an unqualified rating (i.e. one with no qualifying suffix), with the exception of ratings with regulatory indicators and unsolicited ratings.
“Cash Flow” means all amounts received by or on behalf of, or credited to the Borrower from any source under or in respect of a Lease or otherwise from the ownership or operation of the Portfolio, including, without limitation, Monthly Rent, service charges, Servicer Advances, rentals, Railroad Mileage Credits, delivery costs reimbursed by a Lessee and cancellation or penalty payments, as well as all other amounts paid under each Lease or any other Lease Document as reimbursement, indemnity, fees or commissions, or on account of assumed financial responsibility or liability or otherwise, other than Excepted Payments.
“Casualty” means any Event of Loss or other casualty, loss, damage, destruction or other similar loss with respect to any Portfolio Railcar or other item of Collateral.
“Casualty Insurance Policy” means any insurance policy maintained by or on behalf of the Borrower covering losses with respect to Casualties involving one or more Portfolio Railcars or other items of Collateral.
“Casualty Proceeds” means all proceeds under any Casualty Insurance Policy, and all other insurance proceeds, damages, awards, claims and rights of action of the Borrower with respect to any Casualty.
“Change of Control” means a Borrower Change of Control or a TRIP Change of Control.
“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as interpreted by the rules and Treasury Regulations issued thereunder, in each case as in effect from time to time. Reference to particular sections of the Code shall be construed also to refer to any successor sections.
“Collateral” means all of the property which is subject or is purported to be subject to the Liens granted by the Collateral Documents.
“Collateral Agent” means U.S. Bank National Association in its capacity as collateral agent and representative for the Protected Parties under the Security Agreement and the Depository Agreement.
“Collateral Certificate” means a certificate substantially in the form of Exhibit A3 hereto, with appropriate insertions and deletions or with such other changes as may be reasonably agreed to by the Agent and the Collateral Agent, and which certificate contains a description of the Railcars and related Leases which are to become Portfolio Railcars and Portfolio Leases, as the case may be.
“Collateral Deficiency” means, as of any date of determination, the Dollar amount of the excess, if any, of (x) the aggregate outstanding principal amount of the Loans as of such date over (y) the Flex Borrowing Base calculated as of such date.
“Collateral Documents” means, collectively, the Security Agreement, each Perfection Certificate, the Depository Agreement, the Customer Collections Account Administration Agreement, the Asset Contribution and Purchase Agreement, the Marks Company Trust
                            11                    Loan Agreement

Agreement, any additional pledges, security agreements, patent, trademark or copyright filings or mortgages required to be delivered pursuant to the Loan Documents and any instruments of assignment, control agreements, lockbox letters or other instruments or agreements executed pursuant to the foregoing.
“Collection Account” means the Collection Account established by the Depositary pursuant to the Depository Agreement.
“Committed Amount” means $535,000,000 or such other amount to which the Committed Amount may be reduced pursuant to Section 2.08.
“Committed Lease” means an operating lease agreement pursuant to which a Lessee commits to lease an Eligible Railcar, so long as such lease agreement has not been a Committed Lease for more than 3 months.
“Committed Lender” means a Lender listed on Schedule B and shown as having a Commitment hereunder as of the Facility Closing Date or which thereafter acquires a Commitment hereunder in accordance with Section 11.06(b).
“Commitment” means, with respect to any Committed Lender, the commitment of such Committed Lender, in an aggregate principal amount of up to such Committed Lender’s Commitment Percentage of the Committed Amount, to make Loans in accordance with the provisions of Section 2.01, in each case as set forth on Schedule B or in the applicable Assignment and Acceptance as its Commitment, as any such amount may be increased or decreased from time to time pursuant to this Agreement.
“Commitment Percentage” means, for each Committed Lender, the percentage identified as its Commitment Percentage on Schedule B hereto, as such percentage may be modified in connection with adjustments of Commitments made in accordance with Section 2.08 or any assignment made in accordance with the provisions of Section 11.06(b).
“Competitor of the Borrower” means a Person who either (i) is engaged in, or has a material, active investment in a company that is directly engaged in, a full service railcar leasing or manufacturing business or (ii) has a material non-passive investment interest (whether held directly or indirectly) in, or is otherwise an Affiliate of, a Person that is engaged in the full service railcar leasing or manufacturing business; provided, however, that a Person which is a commercial bank, savings institution, insurance company, trust company or national banking association or an Affiliate of any thereof, or a Person regularly engaged (or a Person which is a Subsidiary of a Person regularly engaged) in the business of acting as the lessor or equity participant in a trust or statutory trust acting as the lessor in net financial leases, in each case acting for its own account, shall be deemed not to be a Competitor of the Borrower, unless a Facility Party has notified the Agent and each Lender in writing that such Person is a Competitor of the Borrower. For the avoidance of doubt, for purposes of an assignment by a Conduit Lender to its Committed Lender, such Committed Lender will not be deemed a Competitor of the Borrower.
“Condemnation” means any taking of property or assets, or any part thereof or interest therein, for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation or in any other manner.
                            12                    Loan Agreement

“Condemnation Award” means all proceeds of any Condemnation or transfer in lieu thereof with respect to any Portfolio Railcar or other item of Collateral.
“Conduit Lender” shall mean any Lender which is designated as a Conduit Lender pursuant to Section 11.06(h).
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any indenture, loan agreement, mortgage, deed of trust, contract or other agreement, instrument or undertaking to which such Person is a party or by which it or any of its property or assets is bound. Contractual Obligation does not include obligations under the Transaction Documents.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Exposure”, as applied to each Lender, means (i) in the case of a Committed Lender at any time prior to the termination of the Commitments, the difference of (A) the Commitment Percentage of such Lender multiplied by the Committed Amount less (B) the aggregate principal amount of all outstanding Loans funded by a Conduit Lender on behalf of such Committed Lender, and (ii) in the case of a Conduit Lender and in the case of a Committed Lender at any time after the termination of the Commitments, the aggregate principal balance of the outstanding Loan of such Lender.
“Credit Obligations” means, without duplication:
(i)    all principal of and interest (including, without limitation, any interest which accrues after the commencement of any bankruptcy or insolvency proceeding with respect to the Borrower, whether or not allowed or allowable as a claim under the Bankruptcy Code) on any Loan under, or any Note issued pursuant to, this Agreement or any other Loan Document;
(ii)    all fees, expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by any Facility Party (including, without limitation, any amounts which accrue after the commencement of any bankruptcy or insolvency proceeding with respect to such Facility Party, whether or not allowed or allowable as a claim under the Bankruptcy Code) pursuant to this Agreement or any other Loan Document;
(iii)    all expenses of the Agent and the Collateral Agent as to which the Agent or the Collateral Agent, as the case may be, has a right to reimbursement under Section 11.04 of this Agreement or under any other similar provision of any other Loan Document, including, without limitation, any and all sums, if any, advanced by a Protected Party to preserve the Collateral or preserve the Collateral Agent’s security interests in the Collateral; and
                            13                    Loan Agreement

(iv)    all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement under Section 11.05 of this Agreement or under any other similar provision of any other Loan Document;
together in each case with all renewals, modifications, consolidations or extensions thereof.
“Creditor” means, without duplication, each Lender, each Derivatives Creditor, the Agent and each Indemnitee and their respective successors and assigns, and “Creditors” means any two or more of such Creditors.
“Cuban Assets Control Regulations” has the meaning assigned to such term in Part 515 of Title 31 of the Code of Federal Regulations.
“Custody Account” means the Custody Account established by the Borrower with the Depositary pursuant to the Depository Agreement.
“Customer Collections Account Administration Agreement” means the Customer Collections Account Administration Agreement, dated as of November 12, 2003, among, inter alios, the Trinity Industries Leasing Company, Trinity Rail Leasing III, L.P., TRIP Rail Leasing LLC, the TRL-III Transaction Investors identified on the signature pages thereto, Credit Suisse AG, New York Branch, Wilmington Trust Company, and the Borrower, as amended and/or supplemented from time to time.
“Customer Collections Account Administration Agreement Severance” has the meaning set forth in Section 9.02(f).
“Customer Payments Accounts” means the Customer Payments Account referred to and defined in the Customer Collections Account Administration Agreement.
“Daily Simple SOFR” means, for any day, SOFR, with conventions (including, without limitation, a lookback) established by the Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that, if the Agent determines that any such convention is not administratively, operationally, or technically feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.
“Debt” of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (iv) all obligations of such Person to pay the deferred purchase price of property or services (other than current accounts payable arising in the ordinary course of business), (v) the capitalized amount of all Capital Leases of such Person that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (vi) all obligations (other than obligations in respect of like kind exchanges) of such Person in respect of securities repurchase agreements or otherwise to purchase securities or other property which arise out of or in connection with the sale of the same or substantially similar securities or
                            14                    Loan Agreement

property, (vii) all non-contingent obligations (and, for purposes of Section 7.01, all contingent obligations) of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, bankers’ acceptance or similar instrument, (viii) all obligations of others secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) a Lien on, or payable out of the proceeds of production from, any property or asset of such Person, whether or not such obligation is assumed by such Person; provided that the amount of any Debt of others that constitutes Debt of such Person solely by reason of this clause (viii) shall not for purposes of this Agreement exceed the greater of the book value or the fair market value of the properties or assets subject to such Lien, (ix) all Guaranty Obligations of such Person, (x) all Disqualified Stock of such Person, (xi) all Derivatives Obligations of such Person and (xii) the Debt of any other Person (including any partnership in which such Person is a general partner and any unincorporated joint venture in which such Person is a joint venturer) to the extent such Person would be liable therefor under Applicable Law or any agreement or instrument by virtue of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Debt provide that such person shall not be liable therefor.
“Debt Service Coverage Ratio” means, with respect to any Settlement Date, the ratio of:
(i)     the sum of the aggregate amount of
(A)     Monthly Rent actually collected and paid into the Collection Account plus
(B)     payments of Railroad Mileage Credits to the Borrower, net of any portion of such Railroad Mileage Credits which the Borrower is required to pay to Lessees or other third parties plus
(C)     interest earned under deposits in the Accounts plus
(D)    Servicer Advances plus
(E)    amounts deposited from the Expense Reserve Account into the Collection Account plus
(F)    amounts deposited from the Modifications and Improvements Account into the Collection Account plus
(G)    amounts deposited from the Liquidity Reserve Account into the Collection Account, plus
(H)    Capital Contributions in cash made to the Borrower (subject to a maximum of: (i) two Capital Contributions during any twelve month period, and (ii) four Capital Contributions during the term of the Facility and in an amount no greater than that needed to cause the Debt Service Coverage Ratio to be at least equal to 1.10:1.00 but no greater than 1.125:1.00 immediately after giving effect to such contribution),
less the sum of the aggregate amount of
(A)    operating expenses plus
                            15                    Loan Agreement

(B)    Servicer’s Fee plus
(C)    reimbursements of Servicer Advances plus
(D)    amounts deposited into the Liquidity Reserve Account,
in each case for each of the three most recent Measuring Periods ended on or prior to the Calculation Date immediately preceding such Settlement Date, to
(ii)     the sum of the aggregate amount of
(A)     interest expense accrued on the Loans plus
(B)     with respect to each Portfolio Railcar, the product of (a) the Monthly Depreciation with respect to such Portfolio Railcar multiplied by (b) the Flex Advance Rate with respect to such Portfolio Railcar minus
(C)     payments owed to the Borrower (other than any Derivatives Termination Value) as of such Settlement Date under any Derivatives Agreement plus
(D)     payments owed by the Borrower (other than any Derivatives Termination Value) as of such Settlement Date under any Derivatives Agreement,
in each case for each of the three most recent Measuring Periods ended on or prior to the Calculation Date immediately preceding such Settlement Date.
“Default” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
“Default Margin” means 375 basis points.
“Depositary” means U.S. Bank National Association, or a successor thereto appointed pursuant to the Depository Agreement.
“Depositary’s Office” means the Depositary’s address as set forth and identified as such in Schedule E, or such other address as the Depositary may from time to time notify to the Agent, the Borrower and the Lenders.
“Depository Account” means the Depository Account established by the Depositary pursuant to the Depository Agreement.
“Depository Agreement” means the Depository Agreement, substantially in the form of Exhibit F hereto, dated as of the Facility Closing Date, among the Borrower, the Agent, the Collateral Agent, the Servicer and the Depositary.
“Depreciated Appraised Value” means, with respect to any Portfolio Railcar at any time, an amount equal to the Appraised Value of such Portfolio Railcar minus the product of
(a) the Monthly Depreciation with respect to such Portfolio Railcar multiplied by
                            16                    Loan Agreement

(b) the number of Settlement Dates from and excluding the date of the then most recent Independent Appraisal with respect to such Portfolio Railcar to but including the date as of which the Depreciated Appraised Value with respect to such Portfolio Railcar is calculated.
“Derivatives Agreement” means (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement.
“Derivatives Creditor” means any Lender or any Affiliate of any Lender from time to time party to one or more Derivatives Agreements with the Borrower (even if any such Lender for any reason ceases after the execution of such agreement to be a Lender hereunder), and its successors and assigns, and “Derivatives Creditors” means any two or more of such Derivatives Creditors.
“Derivatives Obligations” of any Person means all obligations (including, without limitation, any amounts which accrue after the commencement of any bankruptcy or insolvency proceeding with respect to such Person, whether or not allowed or allowable as a claim under the Bankruptcy Code) of such Person in respect of any Derivatives Agreement, excluding any amounts which such Person is entitled to set-off against its obligations under Applicable Law.
“Derivatives Termination Value” means, at any date after the termination of any Derivatives Agreement, after taking into account the effect of any legally enforceable netting agreements relating to such Derivatives Agreement, the amount payable by (in which case the amount shall be positive) or payable to (in which case the amount shall be negative), the Borrower as a result of the termination of such Derivatives Agreement.
“Designated Severability Clause” means, with respect to a Mixed Rider, language to the effect that the Mixed Rider shall constitute one or more separate and severable leases, with each such lease being comprised of railcars owned by a single person or entity, and each such lease shall incorporate the terms of the related master lease agreement and shall be separate and severable from each other lease made pursuant to such rider and from any other railcars or riders relating to such master lease agreement.
“Discretionary Account” means the Discretionary Account established by the Depositary pursuant to the Depository Agreement.
“Disqualified Stock” of any Person means any Equity Interest of such Person which by its terms (or by the terms of any security for which it is convertible or for which it is
                            17                    Loan Agreement

exchangeable or exercisable), or upon the happening of any event or otherwise (including an event which would constitute a Change of Control), (A) matures or is mandatorily redeemable or subject to any mandatory repurchase requirement, pursuant to a sinking fund or otherwise, (B) is convertible into or exchangeable for Debt or Disqualified Stock or (C) is redeemable or subject to any repurchase requirement arising at the option of the holder thereof, in whole or in part, on or prior to the first anniversary of the Termination Date.
“Dollars” and the sign “$” means lawful money of the United States.
“Early Amortization Event” means:
(i) as of any Settlement Date beginning with the fourth Settlement Date following the Funding Date, the Debt Service Coverage Ratio is less than 1.10 to 1.00; or
(ii) the number of Portfolio Railcars that are On-Lease becomes less than 85% of the total number of Portfolio Railcars in the Portfolio.
“Early Opt-in Election” means, if the then-current Benchmark is the Adjusted LIBOR Rate, the occurrence of:
(1)    a notification by the Agent to (or the request by the Borrower to the Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2)    the joint election by the Agent and the Borrower to trigger a fallback from the Adjusted LIBOR Rate and the provision by the Agent of written notice of such election to the Lenders.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) above, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or clause (b) above and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date this Agreement becomes effective in accordance with Section 11.21.
                            18                    Loan Agreement

“Eligible Assignee” means (i) any Lender, (ii) any Affiliate of a Lender, (iii) any Approved Fund and (iv) any other Person (other than a natural Person) approved by the Agent, which approval will not be unreasonably withheld so long as such assignee is a financial institution with a net worth of at least $50,000,000.00.
“Eligible Lease” means, as of any date of determination, a Lease:
(i)    in the form or substantially in the form of Exhibit I-1, Exhibit I-2, Exhibit I -3 or Exhibit I-4 hereto or such other form as may have been approved by the Agent in its reasonable discretion;
(ii)    which constitutes an operating lease in accordance with GAAP;
(iii)    which represents a transaction with respect to a related Railcar which is (A) evidenced by a single lease agreement between the Borrower and the related Lessee governing only (y) the lease of such specific Railcar and (z) other identified Railcars which have been or will be transferred concurrently to the Borrower and are or will become Portfolio Railcars, (B) evidenced by a specific schedule to a master lease agreement between the Borrower and related Lessee, which schedule identifies as the subject of (and sets forth the specific economic terms of) a lease transaction only as to (y) such specific Railcar and (z) other identified Railcars which have been or will be transferred concurrently to the Borrower and are or will become Portfolio Railcars (i.e., Railcars subject to the same single lease agreement or single schedule to a master lease agreement have not been and will not be transferred to the Borrower by virtue of separate or “split” transfers), or (C) evidenced by a specific schedule to a master lease agreement constituting a Mixed Rider;
(iv)    under which the Lessee is a Person (other than a natural Person) organized under the laws of the United States (or any state thereof or the District of Columbia), Canada (or any province thereof) or Mexico (or any state thereof), or otherwise approved in writing by the Agent as evidenced by the approval of the related Funding Package;
(v)    which provides for payment in Dollars;
(vi)    which complies with all Applicable Laws of the jurisdiction in which it was originated;
(vii)    which represents the legal, valid and binding obligation of the Lessee thereunder, is enforceable against such Lessee in accordance with its terms (subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally and to general equitable principles) and was duly executed by parties having legal capacity to do so;
(viii)    which is not the subject of, and with respect to which there does not exist and are not overtly threatened, any actions, suits, investigations or legal, equitable or arbitrative or administrative proceedings against or adversely affecting any Facility Party;
                            19                    Loan Agreement

(ix)    which has not been satisfied, subordinated or rescinded and remains in full force and effect; and
(x)    in respect of which the Security Agreement is effective to create a valid and perfected first priority Lien in favor of the Collateral Agent, subject only to Permitted Liens.
“Eligible Railcar” means, as of any date of determination,
(i)    a Railcar other than a Railcar which as of such date of determination, if leased, is leased to a third party pursuant to a Lease which is not an Eligible Lease; and
(ii)    a Railcar in respect of which the Security Agreement is effective to create a valid and perfected first priority Lien in favor of the Collateral Agent, subject only to Permitted Liens.
“Environmental Laws” means any current or future legal requirement of any Governmental Authority pertaining to (i) the protection of health, safety, and the environment, (ii) the conservation, management, damage to or use of natural resources and wildlife, (iii) the protection or use of surface water and groundwater or (iv) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic substance or material and includes, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq., any analogous implementing or successor law, any comparable state, local and regional laws, and any amendment, rule, regulation, order or directive issued thereunder.
“Equity Equivalents” means with respect to any Person any rights, warrants, options, convertible securities, exchangeable securities, indebtedness or other rights, in each case exercisable for or convertible or exchangeable into, directly or indirectly, Equity Interests of such Person or securities exercisable for or convertible or exchangeable into Equity Interests of such Person, whether at the time of issuance or upon the passage of time or the occurrence of some future event.
“Equity Interests” means all shares of capital stock, partnership interests (whether general or limited), limited liability company membership interests, beneficial interests in a trust and any other interest or participation that confers on a Person the right to receive a share of
                            20                    Loan Agreement

profits or losses, or distributions of assets, of an issuing Person, but excluding any debt securities convertible into such Equity Interests.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute, as interpreted by the rules and regulations thereunder, all as the same may be in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means: (i) a Reportable Event with respect to a Pension Plan; (ii) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA); (iii) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (iv) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (v) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (vi) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
“Erroneous Distributions” has the meaning set forth in Section 2.12(c).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning set forth in Section 9.01.
“Event of Loss”, with respect to any Portfolio Railcar, means any of the following events:
(a)    during the term of any Lease with respect to such Railcar, such events with respect to such Railcar as are included in the definition of “Destroyed”, “Event of Loss”, “Total Loss” or any equivalent term, as the case may be, in such Lease; and
(b)    when no Lease of such Railcar is in effect, any of the following events with respect to such Railcar:
(i)    loss of such Railcar or the use of such Railcar due to destruction of or damage to such Railcar or any other casualty which renders repair uneconomic or which renders such Railcar permanently unfit for normal use;
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(ii)    any damage to such Railcar which gives rise to a right to receive Casualty Proceeds by the Agent or the Collateral Agent with respect to such Railcar on the basis of an actual, constructive or compromised total loss;
(iii)    the theft or disappearance of such Railcar for a period in excess of 60 consecutive days;
(iv)    the confiscation of, seizure of or taking of title to or other Condemnation of such Railcar by any Governmental Authority;
(v)    the requisition of use of such Railcar (not involving taking of title) by any Governmental Authority, which continues for a period of more than 60 consecutive days; or
(vi)    as a result of any law, rule, regulation, order or other action by the STB or other Governmental Authority having jurisdiction, use of such Railcar in the normal course of business of rail transportation is prohibited for a period of longer than 60 consecutive days.
“Excepted Payments” means amounts payable to or for the benefit of the Borrower, the Servicer, the Agent, the Collateral Agent or any Lender (or any similar party as defined and used in such Lease), including, without limitation, (i) proceeds of public liability insurance (or other liability insurance maintained by or on behalf of the Borrower for its own account) payable to or for the benefit of the Borrower or the Lessee (or governmental indemnities in lieu thereof) and (ii) any rights to enforce and collect the same, but excluding, for the avoidance of doubt, payments for the use of, the loss of use of, damage to, or compensation for any loss of acquisition of any Portfolio Railcar.
“Excess Proceeds” means any amount of cash proceeds received by the issuer in the TRP 2021-2 Transaction in excess, together with the principal amount of the Loans applied to purchase Eligible Railcars on the Funding Date, of the amount required to refinance the indebtedness of TRMF and pay the costs of issuance in connection with the TRP 2021-2 Transaction and fees and expenses incurred in connection with the making of the Loans.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Assets Amount” means, as of any date of determination, the sum (without duplication) of the following amounts (including in such calculation amounts in respect of Eligible Railcars which will become Portfolio Railcars on such date, but excluding amounts in respect of any Eligible Railcars which will cease to be Portfolio Railcars on or before such date pursuant to Section 8.12 of the Security Agreement or otherwise)
(i)    the amount by which (x) the Aggregate FMV of all Eligible Railcars which are (A) Off-Lease as of the date of calculation, (B) subject to a Lease with a Lessee with respect to which the aggregate amount of basic lease rent owed by such Lessee under such Lease that is more than 120 days past the stated due dates for such basic lease rent exceeds the Monthly Rent then payable by such Lessee under such Lease, (C) subject to a Lease at a Lease rate less than
                            22                    Loan Agreement

then-current market rate monthly storage costs, as determined by the Servicer in its reasonable discretion, or (D) subject to one or more Eligible Leases to Lessees who are then subject to any proceeding of the type described in Section 9.01(g), exceeds (y) 10.00% of the Aggregate FMV; plus
(ii)    the amount by which (x) the Aggregate FMV of all Eligible Railcars which are subject to per diem Leases, exceeds (y) 15.00% of the Aggregate FMV; plus
(iii)    for each single Lessee whose unsecured, unsubordinated, non-credit enhanced long-term indebtedness for money borrowed is rated at least BBB− by S&P or Baa3 by Moody’s, the amount by which (x) the Aggregate FMV of all Eligible Railcars subject to one or more Eligible Leases to such Lessee exceeds (y) 17.50% of the Aggregate FMV; plus
(iv)    the amount by which (x) the Aggregate FMV of all Eligible Railcars subject to one or more Eligible Leases to Lessees whose unsecured, unsubordinated, noncredit enhanced long-term indebtedness for money borrowed is (A) rated lower than BBB− by S&P or Baa3 by Moody’s or (B) rated by neither S&P nor Moody’s exceeds (y) 65.00% of the Aggregate FMV; plus
(v)    for each single Lessee whose unsecured, unsubordinated, non-credit enhanced long-term indebtedness for money borrowed is (A) rated below BBB− by S&P or Baa3 by Moody’s or (B) rated by neither S&P nor Moody’s, the amount by which (x) the Aggregate FMV of all Eligible Railcars subject to one or more Eligible Leases to such Lessee exceeds (y) 12.50% of the Aggregate FMV; plus
(vi)    the amount by which (x) the Aggregate FMV of all Eligible Railcars subject to one or more Eligible Leases to Lessees whose unsecured, unsubordinated, noncredit enhanced long-term indebtedness for money borrowed is rated by neither S&P nor Moody’s exceeds (y) 50.00% of the Aggregate FMV; plus
(vii)    the amount by which (x) the Aggregate FMV of all Eligible Railcars leased by the five Lessees who, collectively, lease Eligible Railcars having the greatest Aggregate FMV, exceeds (y) 40.00% of the Aggregate FMV; plus
(viii)    the amount by which (x) the Aggregate FMV of all Eligible Railcars which are leased to Lessees domiciled outside the United States exceeds (y) 20.00% of the Aggregate FMV; plus
(ix)    the amount by which (x) the Aggregate FMV of all Eligible Railcars which are leased to Lessees domiciled in Mexico exceeds (y) 10.00% of the Aggregate FMV; plus
(x)    the amount by which (x) the Aggregate FMV of all Eligible Railcars contained on Non-Severable Mixed Riders exceeds (y) 20.00% of the Aggregate FMV; plus
                            23                    Loan Agreement

(xi)    the maximum amount by which (x) the Aggregate FMV of all Railcars that are leased to all Lessees categorized in any Industry Group (determined as of the commencement of each Lease) exceeds (y) an amount equal to the product of (A) the Industry Concentration Percentage for such Industry Group times (B) the Aggregate FMV (provided that, to the extent that a positive amount is calculated for any Industry Group under this clause (xiv), only the highest positive amount calculated for any single Industry Group pursuant to this clause (xiv) shall be deemed to be an “Excluded Assets Amount” under this clause (xiv) and all other amounts shall be disregarded); plus
(xii)    the Aggregate FMV of all Eligible Railcars which are, or which are subject to one or more Eligible Leases which are, subject to any Lien other than Permitted Liens; plus
(xiii)    the amount by which (x) the Aggregate FMV of all Eligible Railcars with an age from their respective date of manufacture equal to or greater than 20 years exceeds (y) 5.00% of the Aggregate FMV; plus
(xiv)    the amount by which (x) the Aggregate FMV of all Eligible Railcars that are classified as tank cars and carry goods classified in Packing Group I or Packing Group II, as defined by the United States of America Department of Transportation, exceeds (y) 15.00% of the Aggregate FMV.
    “Expense Claims” has the meaning set forth in Section 11.18(c).
“Expense Reserve Account” means the Expense Reserve Account established by the Depositary pursuant to the Depository Agreement.
    “Existing Owners” means the collection of legal entities which, on the Facility Closing Date, collectively own, directly or indirectly 75% or more of the Equity Interests of TRIP.
“Facility Closing Date” means May 18, 2021.
“Facility Margin” means 185 basis points on the outstanding principal balance of the Loans.
“Facility Party” means each of the Servicer, TRIP and the Borrower, and “Facility Parties” means all of the foregoing.
“Failed Lender” has the meaning set forth in Section 2.03(e).
“Failed Loan” has the meaning set forth in Section 2.03(e).
“Failed Loan Amount” has the meaning set forth in Section 2.03(e).
“Fair Market Value” means, with respect to any Railcar, the Depreciated Appraised Value of such Railcar.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not
                            24                    Loan Agreement

materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements entered into in connection with the implementation of such Sections.
“Federal Funds Rate” means for any day the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Credit Suisse AG, New York Branch, on such day on such transactions as determined by the Agent.
“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
“Fee Letters” means any fee letters entered into between TRIP and any of the Committed Lenders and/or their Affiliates in connection with this Agreement.
“Flex Advance Rate” means as of any Calculation Date,
(a) with respect to any Portfolio Railcar which is On-Lease as of such Calculation Date, 76.5%
(b) with respect to any Portfolio Railcar that has been Off-Lease as of such Calculation Date for a period of: (i) less than or equal to 30 days, 76.5%; (ii) more than or equal to 31 days and less than or equal to 60 days, 71.5%; (iii) more than or equal to 61 days and less than or equal to 90 days, 66.5%; (iv) more than or equal to 91 days and less than or equal to 120 days, 59.0%; or (v) more than or equal to 121 days or was Off-Lease on the Funding Date and remains Off-Lease, 50.00%; and
(c) with respect to any Portfolio Railcar which is subject to an Eligible Lease to a Lessee who is then subject to any proceeding of the type described in Section 9.01(g), 50.00%;
provided that, the Flex Advance Rate with respect any Portfolio Railcar
(A) which is subject to clause (a) above, will continue to apply to such Portfolio Railcar until the next Calculation Date on which such Portfolio Railcar is Off-Lease, (B) which is subject to clause (b) above, will continue to apply with respect to such Portfolio Railcar (subject to further adjustment, if applicable, in accordance with such clause (b)) until the next Calculation Date on which such Portfolio Railcar becomes On- Lease, and (C) which is subject to clause (c) above, will continue to apply to such Portfolio Railcar until the next Calculation Date on which the applicable Lessee is no longer subject to any proceeding of the type described in Section 9.01(g).
                            25                    Loan Agreement

“Flex Borrowing Base” means, as of any date of determination, the difference between (1) the aggregate of the product of the applicable Flex Advance Rate for each Eligible Railcar multiplied by the Aggregate FMV of each such Railcar less (2) the Excluded Assets Amount.
“Flex Borrowing Base Certificate” means a certificate of the chief financial officer or chief accounting officer of each TRIP Party, in the form of Exhibit A7 hereto or such other form as may hereafter be agreed by the Borrower (and/or the Servicer, as applicable) and the Agent, delivered to the Lenders pursuant to Section 2.02(c) or 6.01(d), as applicable, and setting forth in reasonable detail the calculation of the Flex Borrowing Base as of the date required by such Sections and such other information required thereby.
“Financing Notice” means a notice in substantially the form of Exhibit A-4 hereto, with appropriate insertions.
“Floor” means 0.50% per annum.
“Follow-On Lease” has the meaning specified in Section 6.12.
“FRA” means the Federal Railroad Administration Rules and Regulations, as such regulations are amended from time to time, or corresponding provisions of future regulations.
“Full Service Lease” means a Lease substantially in the form of Exhibit I-1 or Exhibit I-2 hereto.
“Funding Date” means the date on which the Loans are made to the Borrower in accordance with this Agreement.
“Funding Losses” has the meaning set forth in Section 3.04.
“Funding Package” means with respect to each Railcar:
(i)    a copy of each related Lease;
(ii)    an Independent Appraisal, if required under Section 6.10;
(iii)    [reserved];
(iv)    the following information:
(A)    the Manufacturer, type and car number and the date of manufacture, the Mark that is, or after acquisition by the Borrower will be applicable to such Railcar and the identity of the registered holder of such Mark;
(B)    the Lessee or proposed Lessee, if applicable, and the primary Industry in which such Railcar operates;
(C)    the proposed Purchase Price, the information on any material modifications (including, but not limited to, prospective material modifications) to the Railcar that relate to such Purchase Price and a written certification that, to
                            26                    Loan Agreement

the best of the Borrower’s knowledge and belief, such proposed Purchase Price does not exceed the fair market value of the Railcar;
(D)    the terms of the Lease or proposed Lease, if any, with respect to such Railcar, including, without limitation, the terms, Monthly Rent, maintenance reserves (if any), security deposit (if any), return conditions and if requested by the Agent, non-confidential information showing the basis for the decision to enter into the applicable Lease;
(E)    the net book value of each Railcar as set out in the books and records of TRIP;
(F)    search reports (or oral confirmation thereof) as of a recent date from all public offices (including, without limitation, the STB and the Office of the Registrar General of Canada) in which a filing or recording is required or would be effective to perfect a Lien on the interests of the Borrower or the applicable seller in such Railcar and any related Lease; and
(G)    if such Railcar is then subject to a Lien of record of any Person, information regarding all such Liens including, but not limited to, (A) the name of such lienholder, (B) a description of the collateral granted to such lienholder to secure each such Lien and (C) the payoff amount required to satisfy each such Lien;
(v)    a memorandum addressed to the Agent and each Lender describing all material differences, if any, between any related Lease and the applicable form of Lease attached hereto as Exhibit I-1, I-2, I-3 or I-4; and
(vi)     evidence satisfactory to the Agent that the insurances required by this Agreement are in effect in respect of such Railcar;
provided that to the extent one or more Lease Documents relating to a Railcar that is or is intended to be subject to a Lease that will become a Portfolio Lease on the Funding Date has not been executed at the time such Funding Package is delivered to the Agent, drafts of such documents may be included in such Funding Package, and provided, further, that if drafts of the foregoing are submitted, final versions of such documents must be received by the Agent at least three days prior to the Funding Date.
“GAAP” means at any time generally accepted accounting principles as then in effect in the United States, applied on a basis consistent (except for changes with which the independent public accountants of TRIP have concurred) with the financial statements of TRIP delivered to the Agent and each of the Lenders pursuant to Section 6.01(a) and (b).
“Governmental Authority” means any federal, state, local, provincial or foreign government, authority, agency, central bank, quasi-governmental or regulatory authority, court or other body or entity, and any arbitrator with authority to bind a party at law.
“Granting Lender” has the meaning specified in Section 11.06(h).
                            27                    Loan Agreement

“Guaranty Obligation” means, with respect to any Person, without duplication, any obligation (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guarantying, intended to guaranty, or having the economic effect of guarantying, any Debt of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (i) to purchase any such Debt or other obligation or any property constituting security therefor, (ii) to advance or provide funds or other support for the payment or purchase of such indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Debt of such other Person, (iii) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Debt or (iv) to otherwise assure or hold harmless the owner of such Debt or obligation against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Debt in respect of which such Guaranty Obligation is made.
“Hedging Event” means:
(i)    the occurrence and continuation of any of the following at any time:
(A)    on any Settlement Date, LIBOR or the Benchmark Replacement commencing on such Settlement Date equals or exceeds 2.00%; or
(B)    on any Settlement Date, the Two Year USD Swap Rate equals or exceeds 2.00%; or
(ii)    at any time, the occurrence of any Event of Default or Servicer Event of Default, or the occurrence of the Step-Up Date.
“Illegality Event” has the meaning specified in Section 3.02.
“IBA” has the meaning specified in Section 1.03.
“ICE Benchmark Rate” means the offered rate that appears on the page of the Reuters screen (or any successor thereto) that displays the ICE Benchmark Rates for one-month deposits in Dollars.
“Increased Cost” has the meaning specified in Section 3.03(a).
“Indemnified Liabilities” has the meaning set forth in Section 11.05.
“Indemnified Taxes” has the meaning set forth in Section 3.01(a).
“Indemnitee” has the meaning set forth in Section 11.05.
“Independent Appraisal” means a document executed by an Independent Appraiser setting forth the Appraised Value of the item of equipment being appraised and the data and explanation, all in reasonable detail, supporting such Appraised Value.
                            28                    Loan Agreement

“Independent Appraiser” means RailSolutions, Inc., or, in substitution of the foregoing appraiser, any independent railcar appraisal expert of recognized standing selected by the Agent, with the consent of the Required Lenders, in consultation with, and reasonably satisfactory to, the Borrower; provided that no such consultations with, or satisfaction of, the Borrower shall be required so long as a Default, a Servicer Event of Default or an Event of Default shall have occurred and be continuing.
“Industry” means any industry listed in column I of Schedule A hereto.
“Industry Concentration Percentage” means, with respect to an Industry Group, the percentages listed in column II of Schedule A hereto that correspond to the Industry of such Industry Group.
“Industry Group” means Railcars that operate primarily in a particular Industry (as certified by each Facility Party in each Borrowing Base Certificate and Flex Borrowing Base Certificate).
“Insolvency Event” means any condition or event set forth in Section 9.01(g).
“Insurance Management Agreement” means the Insurance Management Agreement, substantially in the form of Exhibit H hereto, dated as of the Facility Closing Date, between the Borrower and the Servicer.
“Interchange Rules” means the interchange rules and supplements thereto promulgated by the A.A.R., as in effect from time to time.
“Interest Period” means (i) initially, the period from the Business Day immediately preceding the Funding Date to the first Calculation Date following the Funding Date, and (ii) thereafter, the period from the first day of the calendar month of each respective Interest Period to the Calculation Date of such Interest Period.
“Investment” in any Person means (i) the acquisition (whether for cash, property, services, assumption of Debt, securities or otherwise) of assets, Equity Interests, bonds, notes, debentures, time deposits or other securities of such other Person, (ii) any deposit with, or advance, loan or other extension of credit to or for the benefit of such Person (other than deposits made in connection with the purchase of equipment or inventory in the ordinary course of business) or (iii) any other capital contribution to or investment in such Person, including by way of Guaranty Obligations of any obligation of such Person, any support for a letter of credit issued on behalf of such Person incurred for the benefit of such Person or any release, cancellation, compromise or forgiveness in whole or in part of any Debt owing by such Person.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
                            29                    Loan Agreement

“Lease” means, with respect to any Railcar, (i) any lease entered into by the Borrower, as lessor, and any and all supplements and amendments related thereto or (ii) any such lease transferred to the Borrower pursuant to a Sale Agreement.
“Lease Default” means the occurrence of any default (other than a default which has been waived in compliance with Section 7.14, excluding the proviso therein) under a Lease which is not or has not become, through the giving of notice and/or passage of time or otherwise, a Lease Event of Default.
“Lease Documents” means (i) each of the Leases, Notices of Lease Assignments and Sale Agreements and (ii) each other document, certificate or opinion delivered or caused to be delivered to or for the benefit of the Borrower pursuant thereto.
“Lease Event of Default” means any default (other than a default which has been waived with the specific written consent of the Agent under Section 7.14, excluding the proviso thereof) under a Lease which, through the giving of notice, the passage of time or otherwise, has become an “event of default” or similar term (as defined and used in such Lease) thereunder, it being the intention that a Lease Event of Default shall mean a default under a Lease as to which the cure period, if any, has expired or which has no cure period.
“Lender” means each Committed Lender, Conduit Lender and each Eligible Assignee which acquires or funds a Commitment or Loan pursuant to Section 11.06(b) or 11.06(h), and their respective successors.
“Lessee” means any lessee under any Lease.
“Lessee Consent” means, with respect to any Lease, a consent, executed by the respective Lessee, to the assignment of such Lease to the Borrower and to the grant of the security interest in such Lease to the Collateral Agent, in each case without any material qualifications.
“LIBOR” means:
(a) for any Interest Period, the rate per annum equal to the rate determined by the Agent to be the offered rate that appears on the page of the Reuters screen (or any successor thereto) that displays the ICE Benchmark Rates for one-month deposits in Dollars (for delivery on the first day of such Interest Period), determined as of approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period; or
(b)    if the rate referred to in clause (a) above does not appear on such Reuters page or service or such page or service shall cease to be available, the rate per annum equal to the rate determined by the Agent to be the offered rate that appears on such other page or service that displays the ICE Benchmark Rates for one-month deposits in Dollars (for delivery on the first day of such Interest Period), determined as of approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period; or
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(c)    if the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by the Agent as the rate of interest (rounded upwards to the next 1/16th of 1%) at which one-month deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Loans held by Credit Suisse AG, New York Branch, as would be offered by the principal London Office of Credit Suisse to major banks in the offshore Dollar market at their request at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period; or
(d)    if the rates referenced in the preceding clauses (a), (b) and (c) are not available or are not established for any reason for any Interest Period, “LIBOR” shall equal the Base Rate for each day during such Interest Period;
provided, that, if the result of the foregoing is that LIBOR would be a rate less than zero for any Interest Period, it shall be deemed to be zero for such Interest Period.
“LIBOR Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate.
“LIBOR Reserve Percentage” means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any other entity succeeding to the functions currently performed thereby) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding five billion Dollars in respect of “Eurocurrency liabilities”, whether or not a Lender has any Eurocurrency liabilities subject to such reserve requirement at that time. Loans shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for prorations, exceptions or offsets that may be available from time to time to a Lender. The Adjusted LIBOR Rate shall be adjusted automatically on and as of the effective date of any change in the LIBOR Reserve Percentage.    
“Lien” means, with respect to any asset, any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement or memorandum of lien under the Uniform Commercial Code or comparable laws of any jurisdiction), including the interest of a purchaser of accounts receivable, chattel paper, payment intangibles or promissory notes. For the avoidance of doubt, a security interest granted by a Lessee on such Lessee’s leasehold interest with respect to any Railcar shall not be a “Lien” for purposes of this Agreement so long as such grant would not entitle the grantee to any interest in such Railcar (other than an interest in the Lessee’s leasehold interest as evidenced by the Lease) under Applicable Law.
“Liquidity Reserve Account” means the Liquidity Reserve Account established by the Depositary pursuant to the Depository Agreement.
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“Liquidity Reserve Target Amount”, as calculated on any Calculation Date, means an amount equal to six (6) times the sum of (i) the aggregate interest expense payable on the Loans for the Interest Period ending on such Calculation Date (which shall be calculated on the basis of a 360-day year consisting of 12 months of 30 days each) minus (ii) any amounts (other than any Derivatives Termination Value) owed to the Borrower as of the related Settlement Date under any Derivatives Agreement plus (iii) any amounts (other than any Derivatives Termination Value) owed by the Borrower as of the related Settlement Date under any Derivatives Agreement (for purposes of this calculation, the amounts referred to in clauses (ii) and (iii) shall only include amounts accruing during the Interest Period as to which the amount in clause (i) is computed).
“Loan” means a loan made under Section 2.01.
“Loan Documents” means this Agreement, the Notes, the Collateral Documents and the Fee Letters, collectively, and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto, in each case as the same may be amended, modified or supplemented from time to time.
“Majority Lenders” means, collectively, Lenders whose aggregate Credit Exposure constitutes more than 50.00% of the Credit Exposure of all Lenders at such time.
“Manufacturer” means the relevant manufacturer of each Railcar.
“Margin Stock” means “margin stock” as such term is defined in Regulation U.
“Market Disruption Event” has the meaning set forth in Section 3.05.
“Marks” means identification marks of Railcars.
“Marks Company” means Trinity Marks Company, a Delaware statutory trust, and its successors.
“Marks Company Delaware Trustee” means Wilmington Trust Company, in its capacity as Delaware trustee for the Marks Company, and its successor or successors in such capacity.
“Marks Company Interests” means all beneficial interests, including, without limitation all special units of beneficial interests, now or hereafter issued to or for the benefit of the Borrower representing the right of the Borrower to receive payments of all Railroad Mileage Credits received by the Marks Company in respect of Portfolio Railcars.
“Marks Company Servicing Agreement” means the Management and Servicing Agreement dated as of May 17, 2001 between TILC and the Marks Company, as amended by the First Amendment to the Management and Servicing Agreement, dated as of December 28, 2001, between TILC and the Marks Company.
“Marks Company Trust Agreement” means the Second Amended and Restated Marks Company Trust Agreement dated as of May 17, 2001 between TILC, as settlor, UTI trustee and initial beneficiary, and Wilmington Trust Company, as Delaware trustee.
                            32                    Loan Agreement

“Material Adverse Effect” means, with respect to any Facility Party, any event or circumstance which will have a material adverse effect, individually or in the aggregate with other events or circumstances, on (i) the operations, business, properties or condition (financial or otherwise) of any Facility Party (after taking into account any applicable insurance and any applicable indemnification (to the extent the provider of such insurance or indemnification has the financial ability to support its obligations with respect thereto and is not disputing or refusing to acknowledge the same)), considered either individually or as a whole, (ii) the ability of any Facility Party to consummate the transactions contemplated hereby to occur on the Facility Closing Date or the Funding Date, (iii)  the ability of any Facility Party to perform any of its obligations under any Transaction Document, (iv) the validity or enforceability of the rights and benefits of the Lenders under any Transaction Document, (v) the collectability of all or a material portion of the receivables originated by, or transferred to, such Person or the collections or related rights related thereto or any other Collateral, or (vi) the ability of the Servicer, or any replacement or successor to it, to service or administer the Railcars, receivables, collections or related security.
“Maturity Date” means the date that is the second anniversary of the Step-Up Date.
“Maximum Advance Rate” means 74.0%.
“Measuring Period”, as determined with respect to any Settlement Date, means the period from the second preceding Calculation Date to the then most recent Calculation Date.
“Mixed Rider” means a Rider that covers not only Railcars owned by the Borrower but also railcars owned by one or more other owners.
“Modifications and Improvements Account” means the Modifications and Improvements Account established by the Depositary pursuant to the Depository Agreement.
“Monthly Depreciation” means with respect to any Measuring Period, the aggregate depreciation expense of the Borrower for such Measuring Period in respect of the Portfolio Railcars, calculated for each such Portfolio Railcar based upon the initial Appraised Value, using the straight-line method of depreciation and assuming a 10.00% residual value and a useful life of 35 years from the date of manufacture according to the following:
Monthly Depreciation = EXH104IMAGEA.JPG

Where:

“OPP” equals the initial Appraised Value with respect to such Portfolio Railcar;

“R” equals 0.10 (the residual value of any Portfolio Railcar);

“A” equals the age of such Portfolio Railcar, as of the Funding Date with respect to such Portfolio Railcar, expressed in months since date of manufacture; and

                            33                    Loan Agreement

“ULM” equals 420 (the useful life of any Portfolio Railcar, expressed in terms of months).

“Monthly Rent” means the aggregate amount of monthly “Basic Rent” payments (or other similar term used to describe scheduled monthly payments) actually paid by each Lessee under the applicable Lease plus the aggregate amount (if any) applied from Security Deposits to cover such “Basic Rent” payments; provided that if any Lease requires scheduled payments of rent other than on a monthly basis, an amount of such rent shall be allocated to each month on a pro rata basis for the purpose of determining the aggregate amount of “Monthly Rent”.
“Monthly Report” means a report by the Servicer in substantially the form of Exhibit A5 hereto or such other form as may hereafter be agreed by the Required Lenders, the Servicer and the Agent, with appropriate insertions, or with such other non-material changes as may be reasonably agreed to by the Agent.
“Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and its successors.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Net Cash Proceeds” means:
(i)    with respect to any Asset Disposition (other than pursuant to a Securitization), (A) the gross amount of cash proceeds (including Casualty Proceeds and Condemnation Awards in the case of any Event of Loss or Condemnation) actually paid to or actually received by the Borrower in respect of such Asset Disposition (including any cash proceeds received as income or other proceeds of any noncash proceeds of any Asset Disposition as and when received), less (B) the sum of (x) the amount, if any, of all Taxes (other than income Taxes) (to the extent that the amount of such Taxes shall have been set aside for the purpose of paying such Taxes when due), and customary fees, brokerage fees, commissions, costs and other expenses (excluding all such fees, brokerage fees, commissions, costs and other expenses payable to any Affiliates of the Borrower other than as reimbursement for such amounts incurred for the benefit of the Borrower and paid by such Affiliates to unrelated third parties on behalf of the Borrower) that are incurred in connection with such Asset Disposition and are payable by the Borrower, but only to the extent not already deducted in arriving at the amount referred to in clause (i)(A) above, plus (y) appropriate amounts that must be set aside as a reserve in accordance with GAAP against any liabilities associated with such Asset Disposition; and
(ii)    with respect to any Securitization, the gross amount of cash proceeds paid to or received by the Borrower in respect of the closing of such Securitization, net of underwriting discounts and commissions or placement fees, investment banking fees, legal fees, consulting fees, accounting fees and other customary fees and expenses directly incurred by the Borrower in connection therewith (other than those payable to any Affiliate of the Borrower).
                            34                    Loan Agreement

“Net Lease” means a Lease substantially in the form of Exhibit I-3 or Exhibit I-4 hereto.
“Non-Severable Mixed Rider” means a Mixed Rider that does not contain a Designated Severability Clause.
“Non-U.S. Lender” has the meaning set forth in Section 3.01(d).
“Note” means a promissory note, substantially in the form of Exhibit B hereto, evidencing the obligation of the Borrower to repay outstanding Loans, as such note may be amended, modified, supplemented, extended, renewed or replaced from time to time.
“Notice of Borrowing” means a request by the Borrower for a Borrowing, substantially in the form of Exhibit A-2 hereto.
“Notice of Lease Assignment” means a Notice of Lease Assignment, substantially in the form of Exhibit E-4 hereto.
“Obligations” means, at any date, (i) all Credit Obligations and (ii) all Derivatives Obligations of the Borrower owed or owing to any Derivatives Creditor.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Off-Lease” means a Railcar that is not subject to a Net Lease or a Full Service Lease but which excludes any Railcar that is subject to a Committed Lease.
“On-Lease” means a Railcar that is subject (i) either, to a Net Lease or a Full Service Lease, or (ii) to a Committed Lease.
“Organization Documents” means: (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (ii) with respect to any limited liability company, the certificate of formation and operating agreement (or articles of organization, as the case may be); and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state or other jurisdiction of its formation, in each case as amended from time to time.
“Other Taxes” has the meaning set forth in Section 3.01(b).
“Part” or “Parts” means all appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment of whatever nature, which may from time to time be installed on, incorporated in or attached to, a Railcar and, so long as such items remain subject to this Agreement, all such items which are subsequently removed therefrom and which are owned by the Borrower.
“Participant Register” has the meaning set forth in Section 11.06(e).
“Patriot Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended and supplemented from time to time.
                            35                    Loan Agreement

“Payment Notice/Lessor Rights Notice” has the meaning set forth in the Form of Payment Notice/Lessor Rights Notice in the form of Exhibit E-3 hereto.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or all of its functions under ERISA.
“Pension Plan” means an “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
“Perfection Certificate” means a certificate, substantially in the form of Exhibit E-2 to this Agreement, completed and supplemented with the schedules and attachments contemplated thereby to the satisfaction of the Agent and duly executed by a Responsible Officer of the Borrower or TRIP, as applicable.
“Permit” means any license, permit, franchise, right or privilege, certificate of authority or order, or any waiver of the foregoing, issued or issuable by any Governmental Authority.
“Permitted Liens” means with respect to any Portfolio Railcar: (i) the Liens granted by the Borrower to the Collateral Agent under the Loan Documents; (ii) the respective rights of a Lessee under the Lease with respect to such Portfolio Railcar (including, for the avoidance of doubt, the rights of any sublessee of the Lessee, to the extent such sublease was entered into in accordance with the Lease); (iii) Liens for Taxes payable by the Borrower either not yet due or being contested in good faith by appropriate proceedings diligently conducted so long as (x) such proceedings do not involve any imminent danger of the sale, forfeiture or loss of such Portfolio Railcar or any interest therein and (y) adequate reserves (maintained on a fleet-wide basis for all Railcars owned by TRIP and its Subsidiaries) have been established in accordance with GAAP with respect to such Taxes; (iv) materialmen’s, suppliers’, mechanics’, workmen’s, repairmen’s, employees’ or other like Liens arising in the ordinary course of business for amounts the payment of which is either not yet delinquent or is being contested in good faith by appropriate proceedings diligently conducted so long as (x) such proceedings do not involve any imminent danger of the sale, forfeiture or loss of such Portfolio Railcar or any interest therein and (y) adequate reserves (maintained on a fleet-wide basis for all Railcars owned by TRIP and its Subsidiaries) have been established in accordance with GAAP with respect to such amounts; (v) Liens arising out of judgments or awards against the Borrower that do not give rise to any Default or Event of Default and with respect to which there shall have been secured a stay of execution pending such appeal or review; and (vi) customary salvage and similar rights of insurers under policies of insurance maintained with respect to the Collateral.
“Person” means an individual, a corporation, a partnership, an association, a limited liability company, a trust or an unincorporated association or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
                            36                    Loan Agreement

“Portfolio” means, collectively, all of the Portfolio Railcars and the Portfolio Leases.
“Portfolio Lease” means a Lease with respect to a Portfolio Railcar.
“Portfolio Railcar” means a Railcar which is owned by the Borrower and which has been funded in whole or in part by a Loan hereunder or included as a Replacement Railcar or otherwise added to the Portfolio in accordance with Sections 2.02(a) and (b) and not released from the Lien of the Security Agreement pursuant to Section 8.12 of the Security Agreement or otherwise.
“Prime Rate” shall mean for any day, the rate of interest per annum last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Agent) or any similar release by the Federal Reserve Board (as determined by the Agent).
“Prohibited Nations Acts” means the Trading with the Enemy Act, 50 U.S.C. app. §§ 1-44 (2006), the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701- 1707 (2006), the USA Patriot Act, the Cuban Liberty and Democratic Solidarity Act (Helms-Burton Act), Pub. L. No. 104-114, 110 Stat. 785 (1996), related regulations issued by OFAC or the U.S. Department of State, including the Cuban Assets Control Regulations in each case as may be amended or updated from time to time, and any similar acts or governmental actions of the United States to the extent applicable (including but not limited to economic or financial sanctions, sectoral sanctions, trade embargoes and anti-terrorism laws).
“Protected Party” means, without duplication, the Agent, the Collateral Agent, the Depositary, each Creditor, each Support Party and any participant, successor or permitted assign of any thereof.
“Purchase Price” means, with respect to any Railcar, the aggregate purchase price payable by the Borrower under the applicable Sale Agreement for such Railcar, as such purchase price is certified in the applicable Request.
“Railcar” means a covered hopper car, tank car, boxcar, flat car or other railcar or unit of railroad rolling stock (other than a locomotive), including (i) any and all Parts relating thereto and (ii) any Replacement Railcars and any and all Parts relating thereto, together with any and all accessions, additions, improvements and replacements from time to time incorporated or installed in any item thereof and together with all options, warranties, service contracts, program services, test rights, maintenance rights, support rights, improvement rights and indemnifications relating to any of the foregoing.
“Railcar Documentation” means with respect to each Railcar, (i) the documents (including microfilm), data, manuals, diagrams and other written information originally furnished by the Manufacturer and/or the seller thereof on or about the relevant Funding Date, (ii) the documents, records, logs and other data maintained (or required to be maintained) in respect of the Railcars pursuant to the terms of Leases related to such Railcars during the term of such Leases, (iii) the documents, records, logs and other data maintained (or required to be
                            37                    Loan Agreement

maintained) in respect of the Railcars pursuant to any Applicable Law and (iv) the documents, records, logs and other data maintained (or recommended to be maintained) in respect of the Railcars pursuant to the applicable Manufacturer’s recommendations.
“Railroad Mileage Credits” means the mileage credit payments made by the railroads under their applicable tariffs to the owner of the Marks on the Railcar.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Adjusted LIBOR Rate, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not the Adjusted LIBOR Rate, the time determined by the Agent in its reasonable discretion.
“Register” has the meaning set forth in Section 11.06(d).
“Regulation O, T, U or X” means Regulation O, T, U or X, respectively, of the Board of Governors of the Federal Reserve System as amended, or any successor regulation.
“Reimbursable Amounts” has the meaning set forth in the Servicing Agreement.
“Reimbursement Amount” has the meaning specified in Section 2.07(c)(i).
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, or any successor of any of the foregoing.
“Replacement Railcar” means (i) with respect to any Lease, a Railcar that qualifies under the terms of such Lease to replace a Railcar subject to such Lease and to thereby become a “car” as defined in such Lease and (ii) with respect to any Railcars not subject to a Lease, a Railcar or Railcars having (in the aggregate), in the reasonable judgment of the Agent, a Depreciated Appraised Value, age and utility at least equal to, and being in at least as good an operating and maintenance condition as, and having been maintained in a substantially similar or better manner as, the Railcar being replaced (assuming that such Railcar had been maintained in accordance with this Agreement).
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
“Request” means a Request in substantially the form attached hereto as Exhibit A-1, with appropriate insertions, or with such other changes as may be reasonably agreed to by the Agent.
“Required Lenders” means, collectively, Lenders whose aggregate Credit Exposure constitutes more than 66-2/3% of the Credit Exposure of all Lenders at such time.
                            38                    Loan Agreement

“Required Time Period” means:
(i)    in respect of any Hedging Event listed in clauses (i)(A) or (i)(B) of the definition thereof, the period of 20 Business Days from (but excluding) the Settlement Date on which such event occurs; and
(ii)    in respect of any Hedging Event listed in clause (ii) of the definition thereof, the period of 10 Business Days from (but excluding) the date such event occurs.
“Responsible Officer” means with respect to (i) any Facility Party, the president, any vice president, chief financial officer, treasurer or assistant treasurer of such Facility Party (or, in the case of a Facility Party which is a partnership, limited liability company or trust, any such officer of the general partner, member, manager, trustee (or duly authorized agent of any of the foregoing) or Person performing similar management functions in respect thereof), and (ii) the Collateral Agent and the Depositary, any officer, including any managing director, principal, director, vice president, treasurer, secretary, trust officer or any other officer of the Collateral Agent or the Depositary, as applicable, and in each case having direct responsibility for the administration of this Agreement, and also, with respect to a particular matter, any other officer, to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject. Any document delivered hereunder that is signed by a Responsible Officer of a Facility Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Facility Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Facility Party.
“Restricted Payment” means (i) any dividend or other distribution, direct or indirect, on account of any class of Equity Interests or Equity Equivalents of the Borrower, now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of Equity Interests or Equity Equivalents of the Borrower, now or hereafter outstanding, (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any class of Equity Interests or Equity Equivalents of the Borrower, now or hereafter outstanding, and (iv) any loan, advance, tax sharing payment or indemnification payment to, or investment in, any Affiliate of the Borrower.
“Rider” means a schedule or rider to a master lease agreement between the lessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“S&P” means Standard & Poor’s Ratings Services, a division of McGraw Hill Financial, a New York corporation, and its successors.
“Sale Agreement” means, with respect to any Railcar and related Lease, if applicable, the Asset Contribution and Purchase Agreement, or such other agreement or agreements, in each case in form and substance acceptable to the Agent in its reasonable discretion, between the applicable seller thereof and the Borrower as shall provide for the purchase of such Railcar and related Lease, if applicable, by the Borrower.
                            39                    Loan Agreement

“Sanctioned Person” means: (a) any Person that is, or is majority owned or Controlled by Persons that are, the subject of Sanctions; (b) a legal entity that is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity by Sanctioned Persons; or (c) any other Person with whom a U.S. Person may not engage in transactions under any Prohibited Nations Act in the absence of general or specific governmental authorization.
“Sanctions” has the meaning assigned to such term in Section 5.27.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securitization” means any asset-backed offering sponsored by the Borrower, TRIP and/or their Affiliates, and involving all or any of the Portfolio Railcars and Portfolio Leases.
“Security Agreement” means the Security Agreement, substantially in the form of Exhibit E1 hereto, dated as of the Facility Closing Date, between the Borrower, the Collateral Agent and the Agent.
“Security Deposit” means any cash held by or for the benefit of the Borrower as a “security deposit” (or other similar term) pursuant to any Lease.
“Servicing Documents” means the Servicing Agreement, the Insurance Management Agreement, the Administrative Services Agreement and the Marks Company Servicing Agreement, collectively.
“Servicer” means TILC, and its successors and permitted assigns.
“Servicer Advances” means any advance (other than any advance giving rise to a Reimbursement Amount) made by the Servicer (from time to time in the Servicer’s sole discretion) to the Borrower in respect of one or more delinquent Lease payments which the Servicer reasonably determines will ultimately be recoverable to be deposited in the Collection Account on any Settlement Date or otherwise. Outstanding Servicer Advances shall bear interest at a rate per annum equal to the Applicable Rate and shall be repaid on each Settlement Date in the order of priority of payments set forth in the applicable provisions of Section 2.07(c).
“Servicer Default” means a “Servicer Default” as defined in the Servicing Agreement.
“Servicer Event of Default” means a “Servicer Event of Default” as defined in the Servicing Agreement.
“Servicer’s Fee” means as of any Settlement Date an amount equal to (i) the Reimbursable Amounts and (ii) either (a) the Base Component, without giving effect to any adjustment, amendment or other modification thereto not expressly approved in writing by the Agent (acting with the prior written consent of the Required Lenders), if the Servicer is TILC or one of its Affiliates or (b) the Monthly Rent actually collected under each Portfolio Lease by the Servicer on behalf of the Borrower for such calendar month multiplied by either (x) such other percentage as may be agreed among the Successor Servicer, the Borrower and the Required Lenders, if the Agent or one of its Affiliates is the Servicer or (y) such other percentage as may
                            40                    Loan Agreement

be agreed among the Successor Servicer, the Borrower and each of the Committed Lenders, if the Servicer is not TILC, the Agent or one of their Affiliates.
“Servicing Agreement” means the Operation, Maintenance, Servicing and Remarketing Agreement, substantially in the form of Exhibit G hereto, dated as of the Facility Closing Date among the Borrower, the Agent and the Servicer.
“Servicing Documents” means the Servicing Agreement, the Insurance Management Agreement, the Administrative Services Agreement and the Marks Company Servicing Agreement, collectively.
“Settlement Date” means the 17th calendar day of each calendar month; provided that if such day is not a Business Day, the applicable “Settlement Date” shall be the next succeeding Business Day. The first Settlement Date will be the 17th calendar day of the month following the Funding Date.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
“SOFR Administrator” means the Federal Reserve Bank of New York (or any successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the SOFR Administrator’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Solvent” means, with respect to any Person as of a particular date, that on such date (i) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (ii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (iii) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s assets would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (iv) the fair value of the assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (v) the aggregate fair saleable value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that could be obtained for the assets in question within such period by a capable and diligent businessman from an interested buyer who is willing to purchase under ordinary selling conditions) of the assets of such Person will exceed its debts and other liabilities (including contingent, subordinated, unmatured and unliquidated debts and liabilities). For purposes of this definition, “debt” means any liability on a claim, and “claim” means (i) a right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (ii) a right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right is an
                            41                    Loan Agreement

equitable remedy, is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
“STB” means the United States Surface Transportation Board and its successors.
“Step-Up Date” means the date which is twenty-four (24) months from the Funding Date.
“Step-Up Margin” means a rate per annum equal to 75 basis points, which will increase cumulatively by an additional 75 basis points on the first anniversary of the Step-Up Date.
“SUBI Certificate” means, with respect to the Portfolio Railcars, the special units of beneficial interest certificates issued by the Marks Company.
“Subsidiary” means with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which (i) if a corporation, more than 50.00% of the total voting power of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability company, association or business entity other than a corporation, more than 50.00% of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have more than 50.00% ownership interest in a partnership, limited liability company, association or other business entity if such Person or Persons shall be allocated more than 50.00% of partnership, association or other business entity gains or losses or shall be or control the managing director, manager or a general partner of such partnership, association or other business entity.
“Successor Servicer” has the meaning set forth in the Servicing Agreement.
“Support Facility” shall mean any liquidity or credit support agreement or other facility with a Conduit Lender which relates, either generally or specifically, to this Agreement (including any agreement to purchase an assignment of or participation in, or to make loans or other advances in respect of, Notes or Loans).
“Support Party” shall mean any bank, insurance company or other entity extending or having a commitment to extend funds to or for the account of a Conduit Lender (including by agreement to purchase an assignment of or participation in, or to make loans or other advances in respect of, Notes or Loans) under a Support Facility.
“Taxes” has the meaning set forth in Section 3.01(a).
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Termination Date” means the date on which all outstanding Credit Obligations of the Borrower have been repaid in full.
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“TILC” means Trinity Industries Leasing Company, a Delaware corporation, and its successors and permitted assigns.
“Transaction Documents” means the Loan Documents and the Servicing Documents, collectively.
“Treasury Regulations” means the regulations, including temporary and proposed regulations, promulgated by the United States Department of Treasury with respect to the Code, as such regulations are amended from time to time, or corresponding provisions of future regulations.
“Trinity” means Trinity Industries, Inc., a Delaware corporation, and its successors and permitted assigns.
“Trinity Mark” means a Mark designated “TILX” or “TIMX” or any other railcar Mark designation registered with the A.A.R. under the name of Trinity Marks Company.
“TRIP” means TRIP Rail Holdings LLC, a Delaware limited liability company, and its successors and permitted assigns.
“TRIP Change of Control” means the occurrence of any event as a result of which: (i) Trinity ceases to own, directly or indirectly, 25% of the Equity Interests of TRIP; (ii) Napier Park Railcar Lease Fund, LLC ceases to own, directly or indirectly, 25% of the Equity Interests of TRIP; (iii) either of Trinity or Napier Park Railcar Lease Fund, LLC ceases to be one of the two largest shareholders, of the Equity Interests of TRIP, in each case whether such ownership was held directly or indirectly; or (iv) the Existing Owners and their Affiliates do not own, directly or indirectly, 75% of the Equity Interests of TRIP.
“TRIP Party” means each of TRIP and the Borrower, and “TRIP Parties” means each of the foregoing.
“TRIP Purchase Obligation” means the right of the Borrower or the Agent to require TRIP to purchase any Railcars and Leases if the representations and warranties, covenants or agreements set forth in the Asset Contribution and Purchase Agreement with respect to such Railcars or Leases are untrue or unperformed.
“TRMF” means TRIP Rail Master Funding LLC, a Delaware corporation, and its successors and permitted assigns.
“TRP 2021-2 Transaction” means any asset-backed securities transaction entered into on or about the Funding Date for the purpose of refinancing the indebtedness of TRMF.
“Two Year USD Swap Rate” means, on any Settlement Date, the rate calculated by the Agent on such Settlement Date as the fixed rate which would be payable by a fixed rate payer (exclusive of credit spreads) in exchange for floating rate payments equal to LIBOR or the Benchmark Replacement under a two-year United States Dollar interest rate swap agreement, with monthly settlement, having a notional amount equal to the outstanding principal amount of the Loans on such Settlement Date.
                            43                    Loan Agreement

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unfunded Pension Liability” means at any date the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“United States” means the United States of America, including the states and the District of Columbia but excluding its territories and possessions.
“Unused Committed Amount” means, as of any date of determination, the amount by which (i) the then applicable Committed Amount exceeds (ii) the aggregate principal amount of all outstanding Loans as of such date.
“Unused Fee” has the meaning set forth in Section 2.09.
“U.S. Person” means: (a) a U.S. citizen, (b) a U.S. resident, (c) an individual or entity located in the United States, (d) an entity organized under U.S. law, or (e) an entity owned or controlled by any of the above.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02. Computation of Time Periods and Other Definitional Provisions. For purposes of computation of periods of time hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”. All references to time herein shall be references to Eastern Standard time or Eastern Daylight time, as the case may be, unless specified otherwise. References in this Agreement to Articles, Sections, Schedules, Appendices or Exhibits shall be to Articles, Sections, Schedules, Appendices or Exhibits of or to this Agreement unless otherwise specifically provided. Unless the context otherwise requires, a reference to any agreement or other contract includes supplements, modifications or amendments thereto. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined.
SECTION 1.03. Rates; LIBOR Notification. The interest rate on Adjusted LIBOR Rate Loans is determined by reference to the ICE Benchmark Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that,
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after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022 or at some point thereafter, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Adjusted LIBOR Rate Loans for one or more currencies available for borrowing hereunder. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, Section 1.04 provides a mechanism for determining an alternative rate of interest. The Agent will promptly notify the Borrower, pursuant to Section 1.04, of any change to the reference rate upon which the interest rate on Adjusted LIBOR Rate Loans is based. However, the Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “Adjusted LIBOR Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section 1.04, whether upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 1.04, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the Adjusted LIBOR Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.
SECTION 1.04. Making LIBOR Rate Loans. (a) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or, as the case may be, an Early Opt-in Election and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Majority Lenders.
(b)    In connection with the implementation of a Benchmark Replacement, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become
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effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c)    The Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or Early Opt-In Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 1.04, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 1.04.
(d)    Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or Adjusted LIBOR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e)    Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, any Loan that would otherwise be funded or maintained based on the relevant Benchmark shall during such Benchmark Unavailability Period instead be funded or maintained based on the Base Rate. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
(f)    Neither the Collateral Agent nor the Depositary shall be under any obligation to (i) monitor, determine or verify the unavailability or cessation of LIBOR (or other applicable Benchmark), or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event or Benchmark Replacement Date, (ii) select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate have been satisfied, (iii) select, determine or designate any Benchmark Replacement
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Adjustment, or other modifier to any replacement or successor index, or (iv) determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing.
(g)     Neither the Collateral Agent nor the Depositary shall be liable for any inability, failure or delay on its part to perform any of its duties set forth herein as a result of the unavailability of LIBOR (or other applicable Benchmark) and absence of a designated Benchmark Replacement, including as a result of any inability, delay, error or inaccuracy on the part of any other transaction party in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement and reasonably required for the performance of such duties.

ARTICLE II.

THE CREDIT FACILITY
SECTION 2.01. Commitment to Lend. Each Committed Lender severally agrees, subject to the Agent’s determination that the terms and conditions of Sections 2.02 and 4.03 applicable to the Funding Date have been (i) satisfied or (ii) solely to the extent permitted by the last sentence of this clause (a) temporarily waived by the Agent, which waiver shall last for a period of no longer than 5 Business Days, or, (iii) in all other cases, waived by the Agent and all of the Lenders, and on the other terms and conditions set forth in this Agreement, to make Loans to the Borrower pursuant to this Section 2.01 on the Funding Date during the Availability Period in order to fund the acquisition of Railcars and related Leases by the Borrower on the Funding Date. The Loans advanced on the Funding Date with respect to any Railcars and related Leases shall not:
(i)    in the case of any Committed Lender, exceed its Available Commitment;
(ii)     exceed the lesser of (A) the Unused Committed Amount and (B) the product of:
(x) the Flex Advance Rate (applied to each Eligible Railcar in accordance with the definition of Flex Advance Rate); and
(y) the Aggregate FMV with respect to all the Eligible Railcars to be purchased on the Funding Date; or
(iii)     exceed the lesser of (A) the Committed Amount and (B) the Flex Borrowing Base.
The Loans advanced on the Funding Date shall be subject to the requirement that, in the event of a Borrowing Base Deficiency existing on the Funding Date, any Excess Proceeds received in connection with the TRP 2021-2 Transaction shall be applied to the extent required to reduce the principal amount of the Loans such that the Borrowing Base Deficiency is cured. The Borrowing shall be made from the several Committed Lenders ratably in proportion to their respective Commitments. The Lenders have no obligation to make their respective Loans
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hereunder except as expressly set forth in this Agreement. In connection with the transactions on the Funding Date, the Agent may in its sole discretion grant the Borrower a temporary waiver for a specified period of time (which, for the avoidance of doubt, shall last for a period of no longer than 5 Business Days) to fulfill the conditions set forth in Section 4.03 (other than clauses (a), (b), (c), (d), (f), (g), (m), or (n) thereof).
(b)Payments of principal and interest on the Loans will be made to the Lenders according to the respective outstanding principal amounts of each Lender's respective Loan.
SECTION 2.02. Procedures for Borrowing.
(a)Requests; Delivery of Funding Packages. The Borrower may provide the Agent with a Request, signed by a Responsible Officer of the Borrower, to purchase Railcars and related Leases on the Funding Date. Concurrent with the delivery of the Request, the Borrower shall deliver to the Agent the Funding Package for each such Railcar. The Borrower shall also set forth in the Request for each Lease in effect prior to the proposed Funding Date, a statement that, to the knowledge of the Facility Parties, (i) the Lessee has made rent payments on time (giving effect to any applicable grace periods) under such Lease or, if not, a description of any late payments of which any Facility Party is aware during the one-year period (or shorter period, if the term of such Lease commenced less than one year prior to the date of such Request) prior to the date of such Request and a summary description of any earlier such defaults, if any, of which any Facility Party is aware and (ii) no Lease Default or Lease Event of Default under such Lease has occurred during the one-year period (or shorter period, if the term of such Lease commenced less than one year prior to the date of such Request), prior to the date of such Request or, if that is not the case, a description of any such Lease Default or Lease Event of Default of which any Facility Party is aware. The Borrower shall supplement the Request with whatever additional information the Agent reasonably requests about the proposed transaction.
(b)Determination of Acceptability by the Agent. Subject to the terms and conditions of this Section 2.02 and Section 4.03 either (i) being satisfied or (ii) solely to the extent permitted by the last sentence of Section 2.01(a), temporarily waived by the Agent, the Agent shall determine, with exercise of its sole discretion, whether or not to include each Railcar and Lease described in the Request and related Funding Package in the Portfolio. Within three Business Days of receipt of the Request and a complete Funding Package with respect to such Railcar, the Agent shall inform the Borrower if the Railcar and Lease referred to in the Request and Funding Package may be purchased (subject to the terms and conditions of this Agreement). In exercising its discretion to determine whether to include a transaction that is the subject of a Request in the Portfolio, the Agent shall consider the following factors, among others: the current and future anticipated value of the Railcar, the current and anticipated users of the Railcar and maintenance issues related to the Railcar; the credit quality of the proposed Lessee, its ability to perform its obligations under the proposed Lease, its performance record with respect to other leases and debt obligations and its maintenance and operational standards; whether the transaction is appropriate to be included in a Securitization; and whether the Securitization contemplated by the Borrower can be completed prior to the Maturity Date.
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(c)Notice of Borrowing. Upon approval by the Agent (with the consent of the Required Lenders, if required) of the Railcars and the related Leases to be purchased in accordance with Section 2.02(b), the Borrower may, subject to the terms and conditions of this Agreement, during the Availability Period borrow Loans in a single advance in respect of the Railcars and related Leases which are Eligible Railcars and/or Eligible Leases, as applicable. In such event, the Borrower shall give the Agent the Notice of Borrowing not later than 11:00 A.M. on the third Business Day prior to the proposed Funding Date, specifying:
(i)the proposed Funding Date of such Borrowing, which shall be a Business Day no earlier than 6 Business Days (unless otherwise approved by the Agent) following receipt by the Agent of the Request and a complete Funding Package with respect to each Railcar;
(ii)the aggregate amount of the Borrowing to be made on the Funding Date; and
(iii)a description of the Eligible Railcars to be financed and the Eligible Lease(s) to be pledged on the Funding Date (which may be by cross reference to or attachment of the related Request);
and attaching a pro forma Borrowing Base Certificate and Flex Borrowing Base Certificate giving effect to all Loans requested pursuant to such Notice of Borrowing and the pledge of all Railcars and Leases to be added to the Portfolio on the proposed Funding Date. The Agent shall deliver to all Committed Lenders a copy of the Funding Package with respect to all Railcars funded on the Funding Date within 10 Business Days after the Funding Date.
SECTION 2.03. Notice to Lenders; Funding of Loans.
(a)Notice to Lenders. Upon receipt of the Notice of Borrowing, the Agent shall promptly deliver to each Lender (i) a Financing Notice notifying such Lender of the Funding Date and of such Lender’s ratable share of the Loans referred to therein and (ii) the pro forma Borrowing Base Certificate and Flex Borrowing Base Certificate delivered by the Borrower to the Agent pursuant to Section 2.02(c).
(b)Funding of Loans. Not later than 2:30 P.M. on the Business Day immediately preceding the Funding Date, each Lender shall make available or instruct (followed by diligent attention to such instruction until such time as the Agent shall have received such Loan) its correspondent bank, if any, to make available its share of such Borrowing, in Federal or other immediately available funds, to the Depositary. Unless the Agent determines that any applicable condition specified in Article IV has not been satisfied or waived, the Agent shall, by 9:00 A.M. on the Funding Date, instruct the Depositary to make the amount of the Borrowing available in a disbursement to the Borrower from the Depository Account to the general deposit account in the United States designated by the Borrower in immediately available funds in a wire transfer. In the event that the conditions as set forth in Section 4.03 for such Loan are not satisfied or waived on the Funding Date, (i) the Agent shall instruct the Depositary to return to the Lenders their respective amounts made available pursuant to this Section 2.03, and (ii) TRIP shall immediately pay the Agent, on behalf of each Protected Party, any amounts which would be owed pursuant to Section 3.04 to such
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Protected Party in connection with such return of funds to the Lenders had (x) such funds been made available on the proposed Funding Date as LIBOR Rate Loans and (y) the Borrower been obligated to indemnify such Protected Party in respect thereof pursuant to such section.
The Notice of Borrowing, once delivered to the Agent, shall be irrevocable and binding on the Borrower. Following such Notice of Borrowing, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill, on or before the proposed Funding Date specified in the Notice of Borrowing, the conditions set forth in Section 4.03, including any loss, cost or expense incurred by reason of the liquidation or re-employment of deposits or such funds acquired by the Lenders to fund the Loans to be made pursuant to this Section 2.03(b). Any such loss, cost or expense shall be paid in accordance with Section 2.07(c) after any Lender shall have furnished to the Borrower and the Agent, with reasonable supporting calculations, a notice specifying the amounts thereof.
(c)Funding by the Agent in Anticipation of Amounts Due from the Lenders. Unless the Agent shall have received notice from a Lender prior to the Funding Date that such Lender will not make available to the Depositary such Lender’s share of the Borrowing, the Agent may assume that such Lender has made such share available to the Depositary on the Funding Date of such Loan in accordance with subsection (b) of this Section 2.03, and the Agent may, in reliance upon such assumption, instruct the Depositary to make available to the Borrower on such date a corresponding amount provided by the Agent. If and to the extent that such Lender shall not have so made such share available to the Depositary, such Lender and the Borrower (if and to the extent such corresponding amount was made available by the Agent hereunder) severally agree to repay to the Agent forthwith on demand such corresponding amount, together with interest thereon for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Agent at (i) a rate per annum equal to the higher of the Federal Funds Rate and the Applicable Rate, in the case of the Borrower, and (ii) the Federal Funds Rate, in the case of such Lender. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan included in the Borrowing for purposes of this Agreement.
(d)Obligations of Lenders Several. The failure of any Lender to make a Loan required to be made by it as part of the Borrowing hereunder shall not relieve any other Committed Lender of its obligation, if any, hereunder to make its Loan on the Funding Date, but, except as otherwise provided in Section 11.06(h), no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the Funding Date.
(e)Failed Loans. If any Committed Lender (in such capacity, a “Failed Lender”) shall fail to make any Loan (a “Failed Loan”, and the amount of such Failed Loan, the “Failed Loan Amount”) which such Committed Lender is otherwise obligated hereunder to make to the Borrower on the Funding Date of the Borrowing and the Agent shall not have received notice from the Borrower or such Committed Lender that any condition precedent to the making of the Failed Loan has not been satisfied, then, until such Committed Lender shall have made or be deemed to have made (pursuant to the last sentence of this subsection (e)) the Failed
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Loan in full or the Agent shall have received notice from the Borrower or such Committed Lender that any condition precedent to the making of the Failed Loan was not satisfied at the time the Failed Loan was to have been made, whenever the Agent shall receive any amount from the Borrower for the account of such Committed Lender, (i) the amount so received (up to the amount of such Failed Loan) will, upon receipt by the Agent, be deemed to have been paid to the Committed Lender in satisfaction of the obligation for which paid, without actual disbursement of such amount to the Committed Lender, (ii) the Committed Lender will be deemed to have made the same amount available to the Agent for disbursement as a Loan to the Borrower (up to the amount of such Failed Loan) and (iii) the Agent will disburse such amount (up to the amount of the Failed Loan) to the Borrower or, if the Agent has previously made such amount available to the Borrower on behalf of such Committed Lender pursuant to the provisions hereof, reimburse itself (up to the amount made available to the Borrower); provided, however, that the Agent shall have no obligation to disburse any such amount to the Borrower or otherwise apply it or deem it applied as provided herein unless the Agent shall have determined in its sole discretion that to so disburse such amount will not violate any law, rule, regulation or requirement applicable to the Agent. Upon any such disbursement by the Agent, such Committed Lender shall be deemed to have made a Loan to the Borrower in satisfaction, to the extent thereof, of such Committed Lender’s obligation to make the Failed Loan.
SECTION 2.04. Evidence of Loans.
(a)Lender Accounts. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness to such Lender resulting from the Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
(b)Agent Records. The Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Agent hereunder from the Borrower and each Lender’s share thereof.
(c)Evidence of Debt. The entries made in the accounts maintained pursuant to subsections (a) and (b) of this Section 2.04 shall be conclusive evidence (absent manifest error) of the existence and amounts of the obligations therein recorded; provided, however, that the failure of any Lender or the Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans in accordance with their terms.
(d)Notes. Notwithstanding any other provision of this Agreement, if any Lender shall request and receive a Note or Notes as provided in Section 11.06 or otherwise, then the Loan of such Lender shall be evidenced by a single Note substantially in the form of Exhibit B, and payable to the order of such Lender in an amount equal to the aggregate unpaid principal amount of such Lender’s Loan.
(e)Note Endorsements. Each Lender having a Note shall record the date and amount of the Loan made by it and the date and amount of each payment of principal made
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by the Borrower with respect thereto, and may, if such Lender so elects in connection with any transfer or enforcement of its Note, endorse on the reverse side or on the schedule, if any, forming a part thereof appropriate notations to evidence the foregoing information with respect to the outstanding Loan evidenced thereby; provided that the failure of any Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower hereunder or under any such Note. Each Lender is hereby irrevocably authorized by the Borrower so to endorse its Note and to attach to and make a part of its Note a continuation of any such schedule as and when required. When the Borrower has paid a Note in full, such Lender will promptly return such Note to the Agent, who will return such Note to the Borrower, against receipt therefor, marked “PAID IN FULL”.
(f)Lost, Mutilated and Destroyed Notes, etc. If any Note issued to a Lender pursuant to this Agreement shall become mutilated, destroyed, lost or stolen, the Borrower shall, upon the written request of the holder of such Note, execute and deliver to the Agent, who shall endorse and deliver to the applicable Lender in replacement thereof a new Note, payable to the same holder in the same principal amount and dated the same date as the Note so mutilated, destroyed, lost or stolen. If the Note being replaced has become mutilated, such Note shall be surrendered to the Borrower for cancellation and if the Note being replaced has been destroyed, lost or stolen, the holder of such Note shall furnish to the Borrower such indemnification as may be required by the Borrower to hold the Borrower harmless and evidence reasonably satisfactory to the Borrower of the destruction, loss or theft of such Note and of the ownership thereof; provided, however, that if the holder of such Note is a Committed Lender, the written undertaking of such Lender shall be sufficient indemnity for purposes of this Section 2.04(f).
SECTION 2.05. Interest.
(a)Rate of Interest.
(i)[Reserved]
(ii)Subject to Section 3.05, each Loan shall bear interest on the outstanding principal amount thereof, for each day during each Interest Period, at a rate per annum equal to the Applicable Rate for such day. Such interest shall be payable in arrears on each Settlement Date and on the Termination Date.
(iii)At any time during which an Event of Default has occurred and is continuing, each Loan shall bear additional interest (in addition to the interest payable pursuant to Section 2.05(a)(ii)) on the outstanding principal amount thereof, for each day during each Interest Period, at a rate per annum equal to the Default Margin and such accrued additional interest shall be aggregated on the last day of such Interest Period (all such aggregated additional interest, the “Aggregated Default Interest”). Aggregated Default Interest shall not bear interest and shall be payable in arrears on the date on which the aggregate principal amount of the Loans have been paid in full pursuant to the terms of this Agreement.
(b)Determination and Notice of Interest Rates. The Agent shall determine each interest rate applicable to the Loans hereunder as provided in this Agreement. The Agent
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shall give prompt notice to the Borrower and the participating Lenders of each rate of interest so determined, and its determination thereof shall be conclusive in the absence of manifest error.
SECTION 2.06. Repayment and Maturity of Loans. On the Maturity Date, the Borrower shall repay to the Collection Account the aggregate outstanding principal amount of the Loans and all accrued interest thereon (including all Aggregated Default Interest), and the Loans of each Lender shall be ratably repaid.
SECTION 2.07. Prepayments.
(a)Voluntary Prepayments. The Borrower shall have the right voluntarily to prepay the Loans in whole or in part without premium or penalty; provided, however, that (i) each partial prepayment of the Loans shall be in a minimum principal amount of $1,000,000 and (ii) the Borrower shall have given prior written or telecopy notice (or telephone notice promptly confirmed by written or telecopy notice) to the Agent by 10:00 A.M., at least five Business Days prior to the date of prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount to be prepaid. Each notice of prepayment shall be irrevocable and shall commit the Borrower to prepay the Loans by the amount stated therein on the date stated therein. All prepayments under this Section 2.07(a) shall be accompanied by accrued interest on the principal amount being prepaid to the date of payment together with any amounts owed to any Lender pursuant to Section 3.04 hereof.
(b)Mandatory Prepayments. The Borrower shall be required to prepay the Loans as provided in clauses (i) through (vi) of this Section 2.07(b). All payments under this Section 2.07(b) shall be accompanied by accrued interest on the principal amount being prepaid to the date of payment together with any amounts owed to any Lender pursuant to Section 3.04 hereof.
(i)On each Settlement Date, an aggregate amount equal to the amount of all Cash Flow and other amounts on deposit in the Collection Account shall be applied and any amount in the Liquidity Reserve Account required to be applied shall be applied (and the Loans, together with other Obligations then due, shall be prepaid to the extent of cash available therefor) in accordance with the provisions of Section 2.07(c)(i), 2.07(c)(ii) or 2.07(c)(iii), as applicable.
(ii)Following the occurrence of an Event of Default and acceleration of the Loans, the outstanding Loans shall be paid immediately, together with accrued interest thereon to the date of such prepayment, the amount, if any, owed to each Lender pursuant to Section 3.04 hereof and other Obligations owed hereunder.
(iii)If on any Settlement Date, the Agent notifies the Borrower that a Collateral Deficiency exists, the Borrower shall on or prior to the second succeeding Settlement Date either (A) pay the amount of such Collateral Deficiency together with accrued interest thereon and the amount, if any, owed to each Lender pursuant to Section 3.04 hereof to the Collection Account, and on the following Settlement Date, or at the sole discretion of the Agent upon receipt, such payment shall be applied by the Agent in accordance with the then applicable provisions of Section 2.07(c) or (B) purchase or
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acquire by Capital Contribution additional Eligible Railcars and/or Eligible Leases approved by the Agent in its sole discretion and/or other collateral acceptable to the Agent and all the Lenders so that such Collateral Deficiency no longer exists.
(iv)On the first Business Day after receipt thereof by the Borrower, and notwithstanding the provisions of Section 2.07(c)(i), (ii) or (iii), any Net Cash Proceeds received from an Asset Disposition in connection with a Securitization permitted by Section 7.05(iii) shall be paid to the Collection Account and applied in accordance with the provisions of clauses second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and twelfth of Section 2.07(c)(ii) in such order; provided, that the Agent in its sole discretion may agree to the application of such Net Cash Proceeds on a Business Day other than a Settlement Date, so long as prior to and after giving effect to such application no Borrowing Base Deficiency shall exist.
(v)Net Cash Proceeds received by the Borrower from Asset Dispositions (other than in connection with a Securitization),
(a)at any time upon the occurrence and during the continuation of any Event of Default, such Net Cash Proceeds shall be paid into the Collection Account and applied in the order or priority set forth in Section 2.07(c)(iii) on the first Business Day after receipt by the Borrower of such Net Cash Proceeds, to the extent required to cure such Event of Default if such Event of Default can be cured in full solely by the payment of cash or immediately available funds;
(b)subject to Section 2.07(b)(v)(a), at any time so long as no Servicer Default, Servicer Event of Default, or Early Amortization Event has occurred and is continuing, such Net Cash Proceeds not otherwise required to be paid in the Collection Account pursuant to Sections 2.07(b)(iii), 2.07(b)(v)(c) or 2.07(b)(vi) shall be applied in accordance with the provisions of clauses second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and thirteenth of Section 2.07(c)(i) in such order; provided, that the Agent may agree to the application of such Net Cash Proceeds on a Business Day other than a Settlement Date, so long as prior to and after giving effect to such application no Borrowing Base Deficiency shall exist; and
(c)subject to Section 2.07(b)(v)(a), upon the occurrence and during the continuation of a Servicer Default, Servicer Event of Default, or Early Amortization Event, such Net Cash Proceeds not otherwise required to be paid into the Collection Account pursuant to Sections 2.07(b)(iii), 2.07(b)(v)(b) or 2.07(b)(vi) shall be applied in accordance with the provisions of clauses second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and thirteenth of Section 2.07(c)(ii) in such order; provided, that the Agent in its sole discretion may agree to the application of such Net Cash Proceeds on a Business Day other than a Settlement Date, so long as prior to and after giving effect to such application no Borrowing Base Deficiency shall exist;
provided, however, that if the payment of such amount pursuant to Section 2.07(b)(v)(a), Section 2.07(b)(v)(b) or Section 2.07(b)(v)(c), together with the occurrence of any
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related Event of Loss or any release of Railcars from the Portfolio or the application of cash or Cash Equivalents from the Liquidity Reserve Account pursuant to any provision hereof would result in a Borrowing Base Deficiency, such payment amount shall be increased (up to the greater of (i) the extent required to prevent such Borrowing Base Deficiency from occurring and (ii) the amount required to prepay 105% of the allocable balance of the Loans related to the Railcars subject to such Asset Disposition .
(vi)On the first Settlement Date to occur after receipt of the proceeds of any TRIP Purchase Obligation pursuant to Section 4.11 of the Sale Agreement (or any time before such first Settlement Date, if elected by the Borrower), the proceeds of such TRIP Purchase Obligation shall be applied first, to costs and expenses described in Section 4.11 of the applicable Sale Agreement, second, in the order of priority set forth in Section 2.07(c)(iii) such that and only to the extent that, after giving effect to such payment, no Borrowing Base Deficiency exists and third the balance, if any, as directed by the Borrower.
(c)Application of Payments and Prepayments.
(i)Application of Collections Absent Servicer Default, Servicer Event of Default or Early Amortization Event. Subject to Section 2.07(c)(iii), so long as no Servicer Default, Servicer Event of Default or Early Amortization Event has occurred and is continuing, on each Settlement Date, all amounts on deposit in the Collection Account as of the Calculation Date immediately preceding such Settlement Date and amounts which are to be applied from the then current balance of the Liquidity Reserve Account in accordance with the terms hereof shall be applied by the Depositary at the written direction of the Borrower in accordance with the Monthly Report in the following order of priority:
first, to the Servicer, for distribution to the Lessees, if any, whose payments in respect of the applicable Leases are not made net of any Railroad Mileage Credits due and owing to such Lessee, an amount equal to the Railroad Mileage Credits due to such Lessee for which an allocation has not previously been made pursuant to this clause (or any corresponding clause of any other subsection in this Section 2.07(c)) as certified to the Agent by the Servicer not later than the Calculation Date immediately preceding such Settlement Date;
second, to the payment of any fees or indemnities payable or expenses (including the Servicer’s Fee payable on such Settlement Date, together with the aggregate amount of any Servicer’s Fees which were due and payable on any previous Settlement Date and remains unpaid, and any Unused Fee not previously paid on the earlier of the Funding Date and the last day of the Availability Period) permitted under this Agreement and any other Loan Document (including those of the Agent, the Collateral Agent and the Depositary), in each case as approved by the Agent;
third, (A) if (i) any amount (a “Reimbursement Amount”) was paid into the Collection Account since the last Settlement Date to reimburse any expense paid by the Servicer under the Servicing Agreement (other than payment of monthly
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rent) because a Lessee failed to pay an amount due or perform an obligation under the applicable Lease, (ii) the Lessee has cured all payment defaults under the applicable Lease and (iii) the Servicer has provided the Agent with documentation that enables the Agent to verify the amounts distributable under this clause third, to reimburse the Servicer for such payment in an amount up to, but not exceeding, the Reimbursement Amount; and (B) to reimburse the Servicer for outstanding Servicer Advances;
fourth, to reimburse the Collateral Agent and the Agent for any fees and expenses incurred by the Collateral Agent or the Agent, as the case may be (including, without limitation, reasonable attorney’s fees and expenses and the fees and expenses of any person appointed by the Agent to replace the Servicer pursuant to the Servicing Agreement) in connection with any Servicer Event of Default or Event of Default and the exercise by the Agent and/or the Collateral Agent of any right or remedy hereunder and not previously reimbursed or paid by the Lenders;
fifth, to reimburse the Lenders for any fees and expenses incurred by the Lenders as described in Section 11.04 and for any amounts paid by the Lenders to the Agent in compensation for fees and expenses incurred by the Agent as described in clause second or fourth of this Section 2.07(c)(i);
sixth, ratably (x) to the payment of accrued and unpaid interest (except for Aggregated Default Interest and, if the Step-Up Date has occurred, Step-Up Margin) on the Loans and (y) to the payment of Derivatives Obligations (other than for the payment of Derivatives Termination Values payable by the Borrower), if any, then due and payable;
seventh, to the payment of all indemnities in respect of Taxes, Other Taxes, stamp Taxes, funding losses referred to in Section 3.04, increased costs referred to in Section 3.03, losses, costs and expenses referred to in Section 2.03(b) and other amounts, other than principal of or interest on the Loans, payable to any Protected Party in accordance with the Loan Documents;
eighth, deposit to the Liquidity Reserve Account the positive difference (if any) between (x) the Liquidity Reserve Target Amount and (y) the balance of the Liquidity Reserve Account, in each case as determined on the immediately preceding Calculation Date;
ninth, to the ratable payment of the unpaid principal of the Loans in an amount not exceeding an amount such that, after giving effect to such payment, no Borrowing Base Deficiency then exists;
tenth, to the Derivatives Creditors for the payment of Derivatives Termination Values payable by the Borrower;
eleventh, if the Step-Up Date has occurred, (i) 50% of the remaining Cash Flow and other amounts on deposit in the Collection Account to be applied to the ratable payment of the unpaid principal of the Loans until paid in full and (ii)
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thereafter, only if the aggregate outstanding amount of all Loans has been paid in full, then to the ratable payment of (x) any portion of accrued and unpaid interest on the Loan based on the Step-Up Margin and (y) the unpaid Aggregated Default Interest;
twelfth, deposit to the Expense Reserve Account and/or the Modifications and Improvements Account, in each case the amount determined by the Borrower in its sole discretion; and
thirteenth, deposit to the Discretionary Account or, subject to Section 7.07, otherwise at the direction of the Borrower.
(ii)Application of Collections During Servicer Default, Servicer Event of Default or Early Amortization Event. Subject to Section 2.07(c)(iii), all amounts on deposit in the Collection Account as of the Calculation Date immediately preceding such Settlement Date, amounts which are to be applied from the then current balance of the Liquidity Reserve Account in accordance with the terms hereof and all other payments received and all amounts held or realized by or for the benefit of the Collateral Agent or the Agent (including any amount realized by the Collateral Agent or the Agent after the exercise of any remedy as set forth herein or in any other Loan Document and all proceeds of the Collateral), and all payments or amounts then held or thereafter received by or for the benefit of the Collateral Agent or the Agent hereunder or under the Loan Documents, in the Accounts or elsewhere shall be applied by the Depositary at the written direction of the Agent, on each Settlement Date on which a Servicer Default, Servicer Event of Default or Early Amortization Event has occurred and is continuing, in the following order of priority:
first, to the Servicer, for distribution to the Lessees, if any, whose payments in respect of the applicable Leases are not made net of any Railroad Mileage Credits due and owing to such Lessee, an amount equal to the Railroad Mileage Credits due to such Lessee for which an allocation has not previously been made pursuant to this clause (or any corresponding clause of any other subsection in this Section 2.07(c)) as certified to the Agent by the Servicer not later than the Calculation Date immediately preceding such Settlement Date;
second, to the payment of any fees or indemnities payable or expenses (including the Servicer’s Fee payable on such Settlement Date, together with the aggregate amount of any Servicer’s Fees which were due and payable on any previous Settlement Date and remains unpaid, and any Unused Fee not previously paid on the earlier of the Funding Date and the last day of the Availability Period) permitted under this Agreement and any other Loan Document (including those of the Agent, the Collateral Agent and the Depositary), in each case as approved by the Agent;
third, (A) if (x) the Lessee has paid a Reimbursement Amount, (y) the Lessee has cured all payment defaults under the applicable Lease and (z) the Servicer has provided the Agent with documentation that enables the Agent to verify the amounts distributable under this clause third, to reimburse the Servicer
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for such payment in an amount up to but not exceeding, the Reimbursement Amount and (B) to reimburse the Servicer for outstanding Servicer Advances, together with accrued interest thereon;
fourth, to reimburse the Collateral Agent and the Agent for any fees and expenses incurred by either of the Collateral Agent or the Agent (including, without limitation, reasonable attorney’s fees and expenses and the fees and expenses of any person appointed by the Agent to replace the Servicer pursuant to the Servicing Agreement) in connection with any Servicer Event of Default or Event of Default and the exercise by the Agent and/or the Collateral Agent of any right or remedy hereunder and not previously reimbursed or paid by the Lenders;
fifth, to reimburse the Lenders for any fees and expenses incurred by the Lenders as described in Section 11.04 and for any amounts paid by the Lenders to the Agent in compensation for fees and expenses incurred by the Agent as described in clause second or fourth of this Section 2.07(c)(ii);
sixth, ratably (x) to the payment of accrued and unpaid interest (except for Aggregated Default Interest and interest based on the Step-Up Margin) on the Loans and (y) to the payment of Derivatives Obligations (other than for the payment of Derivatives Termination Values payable by the Borrower), if any, then due and payable;
seventh, to the payment of all indemnities in respect of Taxes, Other Taxes, stamp Taxes, funding losses referred to in Section 3.04, increased costs referred to in Section 3.03, losses, costs and expenses referred to in Section 2.03(b) and other amounts, other than principal of or interest on the Loan, payable to any Protected Party in accordance with the Loan Documents;
eighth, deposit to the Liquidity Reserve Account the positive difference (if any) between (x) the Liquidity Reserve Target Amount and (y) the balance of the Liquidity Reserve Account, in each case as determined on the immediately preceding Calculation Date;
ninth, to the ratable payment of the unpaid principal amount of the Loans and, thereafter, only if the aggregate outstanding amount of all Loans has been paid in full, then to the ratable payment of (x) any portion of accrued and unpaid interest on the Loans based on the Step-Up Margin and (y) the unpaid Aggregated Default Interest;
tenth, to the Derivatives Creditors for the payment of Derivatives Termination Values payable by the Borrower;
eleventh, deposit to the Expense Reserve Account and/or the Modifications and Improvements Account, in each case the amount determined by the Borrower in its sole discretion; and
twelfth, deposit to the Discretionary Account or, subject to Section 7.07, otherwise at the direction of the Borrower.
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(iii)Payment if an Event of Default is Continuing. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document, if any Event of Default has occurred and is continuing, unless the Agent shall elect, with the consent of the Required Lenders, to apply such amounts in accordance with Section 2.07(c)(ii) above, all amounts on deposit in the Collection Account, amounts which are to be applied from the then current balance of the Liquidity Reserve Account in accordance with the terms hereof and all other payments received and all amounts held or realized by or for the benefit of the Collateral Agent or the Agent (including any amount realized by the Collateral Agent or the Agent after the exercise of any remedy as set forth herein or in any other Loan Document and all proceeds of the Collateral), and all payments or amounts then held or thereafter received by or for the benefit of the Collateral Agent or the Agent hereunder or under the Loan Documents, in the Accounts shall be applied by the Depositary at the written direction of the Agent in the following order of priority:
first, to the Servicer, for distribution to the Lessees, if any, whose payments in respect of the applicable Leases are not made net of any Railroad Mileage Credits due and owing to such Lessee, an amount equal to the Railroad Mileage Credits due to such Lessee for which an allocation has not previously been made pursuant to this clause (or any corresponding clause of any other subsection in this Section 2.07(c)) as certified to the Agent by the Servicer not later than the Calculation Date immediately preceding such Settlement Date;
second, to the payment of any fees or indemnities payable or expenses (including the Servicer’s Fee payable on such Settlement Date, together with the aggregate amount of any Servicer’s Fees which were due and payable on any previous Settlement Date and remains unpaid, and any Unused Fee not previously paid on the earlier of the Funding Date and the last day of the Availability Period) permitted under this Agreement and any other Loan Document (including those of the Agent, the Collateral Agent and the Depositary), in each case as approved by the Agent;
third, (A) if (x) the Lessee has paid any Reimbursement Amount and (y) the Servicer has provided the Agent with documentation that enables the Agent to verify the amounts distributable under this clause third, to reimburse the Servicer for such payment in an amount up to, but not exceeding, the Reimbursement Amount and (B) to reimburse the Servicer for outstanding Servicer Advances, together with accrued interest thereon
fourth, to reimburse the Collateral Agent and the Agent for any fees and expenses incurred by either of the Collateral Agent or the Agent (including, without limitation, reasonable attorney’s fees and expenses and the fees and expenses of any person appointed by the Agent to replace the Servicer pursuant to the Servicing Agreement) in connection with any Servicer Event of Default or Event of Default and the exercise by the Agent and/or the Collateral Agent of any right or remedy hereunder and not previously reimbursed or paid by the Lenders;
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fifth, to reimburse the Lenders for any fees and expenses incurred by the Lenders as described in Section 11.04 and for any amounts paid by the Lenders to the Agent in compensation for fees and expenses incurred by the Agent as described in clause second or fourth of this Section 2.07(c)(iii);
sixth, ratably (x) to the payment of accrued and unpaid interest (except for Aggregated Default Interest and interest based on the Step-Up Margin) on the Loans and (y) to the payment of Derivatives Obligations (other than for the payment of Derivatives Termination Values payable by the Borrower), if any, then due and payable;
seventh, to the payment of all indemnities in respect of Taxes, Other Taxes, stamp Taxes, funding losses referred to in Section 3.04, increased costs referred to in Section 3.03, losses, costs and expenses referred to in Section 2.03(b) and other amounts, other than principal of or interest on the Loans, payable to any Protected Party in accordance with the Loan Documents;
eighth, to the ratable payment of the unpaid principal amount of the Loans;
ninth, to the Derivatives Creditors for the payment of Derivatives Termination Values payable by the Borrower;
tenth, to the ratable payment of (x) any portion of accrued and unpaid interest on the Loans based on the Step-Up Margin and (y) the unpaid Aggregated Default Interest; and
eleventh, deposit to the Discretionary Account or, subject to Section 7.07, otherwise at the direction of the Borrower.
(iv)Earnings on Cash Equivalents. Any earnings on Cash Equivalents shall constitute part of the Collateral and shall be applied in accordance with Section 2.07(c). Any losses resulting from any Cash Equivalents shall be for the Borrower’s account, and under no circumstances shall the Agent, the Collateral Agent or any Lender have any liability or responsibility therefor.
(d)Release of Amounts from Liquidity Reserve Account. On any Settlement Date, if there exists in the Liquidity Reserve Account any amount in excess of the Liquidity Reserve Target Amount (after giving effect to all other payments to be made on such Settlement Date and as calculated on the Calculation Date immediately preceding such Settlement Date), and upon written certification by the Servicer and Borrower that no Default or Servicer Default has occurred and is continuing, the Agent shall be deemed to have released such excess amount from the Liquidity Reserve Account and such excess amount shall be applied by the Depositary at the written direction of the Borrower in accordance with Section 2.07(c).
SECTION 2.08. Termination and Increase of Commitments.
(a)Optional Termination or Reduction of Commitments (Pro Rata). The Borrower may prior to the Funding Date permanently reduce or terminate the Committed Amount in
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whole or in part (in minimum amounts of $20,000,000 or in integral multiples of $5,000,000 in excess thereof (or, if less, the full remaining amount of the then applicable Committed Amount)) upon two Business Days’ prior written or telecopy notice to the Agent, which notice shall be irrevocable once delivered to the Agent. The Agent shall promptly notify each affected Lender of the receipt by the Agent of any notice from the Borrower pursuant to this Section 2.08(a). Any partial reduction of the Committed Amount pursuant to this Section 2.08(a) shall be applied to the Commitments of the Committed Lenders pro-rata based upon their respective Commitment Percentages.
(b)Optional Termination of Commitments (Non-Pro-Rata). If (i) any Lender or other Protected Party has demanded compensation or indemnification pursuant to Section 3.01, 3.03 or 3.04, (ii) the obligation of the applicable Lender to fund its Loan at the applicable Adjusted LIBOR Rate has been suspended pursuant to Section 3.02, (iii) a Market Disruption Event exists or is in effect with respect to such Loan for any day during any Interest Period or (iv) any Lender has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 11.03 or any other provision of any Loan Document requires the consent of the Required Lenders or all of the Lenders, the Borrower shall have the right, with the prior written consent of the Agent, to (i) remove such Lender and all related Protected Parties by terminating the Commitment of the related Committed Lender in full or (ii) replace such Lender and all related Protected Parties by causing the related Committed Lender to assign its Loan to one or more existing Committed Lenders or Eligible Assignees pursuant to Section 11.06. The replacement of a Lender pursuant to this Section 2.08(b) shall be effective on the tenth Business Day following the date of notice of such replacement to the Lenders through the Agent, subject to the satisfaction of the following conditions:
(i)each replacement Committed Lender and/or Eligible Assignee, and each Protected Party subject to replacement, shall have satisfied the conditions to an Assignment and Acceptance set forth in Section 11.06(b) and, in connection therewith, the replacement Committed Lender(s) and/or Eligible Assignee(s) shall pay to each Protected Party subject to replacement an amount equal in the aggregate to the sum of (A) the principal of, and all accrued but unpaid interest on, its outstanding Loan and (B) all accrued but unpaid fees owing to it pursuant to Section 2.09; and
(ii)the Borrower shall have paid (from the Discretionary Account or otherwise) to the Agent for the account of each replaced Protected Party an amount equal to all obligations owing to such replaced Protected Party by the Borrower pursuant to this Agreement and the other Loan Documents (other than those obligations of the Borrower referred to in clause (i)(A) above).
In the case of the removal of a Protected Party pursuant to this Section 2.08(b), upon payment by the Borrower (from the Discretionary Account or otherwise) to the Agent for the account of the Protected Party subject to such removal of an amount equal to the sum of (i) the aggregate principal amount of the Loan held by such Protected Party and (ii) all accrued interest, fees and other amounts owing to such Protected Party hereunder, including, without limitation, all amounts payable by the Borrower to such Protected Party under Article III or Sections 11.05 and 11.06, such Protected Party shall cease to constitute a Protected Party hereunder; provided that the provisions of this Agreement (including, without limitation, the provisions of
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Article III and Sections 11.05 and 11.06) shall continue to govern the rights and obligations of a removed Protected Party with respect to the Loan made or any other actions taken by such removed Protected Party while it was a Protected Party.
(c)Automatic Termination. Any Commitments that are undrawn at the earlier of (1) the last day of the Availability Period and (2) immediately after the Borrowing on the Funding Date, shall automatically be terminated.
SECTION 2.9. Unused Fee. On or before the earlier of the Funding Date or the last day of the Availability Period, the Borrower or TRIP shall pay to the Agent (or at the direction of the Agent) for the account of each Committed Lender a fee (the “Unused Fee”) as provided in the applicable Fee Letter.
SECTION 2.10. Pro-rata Treatment. Except to the extent otherwise provided herein, (including without limitation in Sections 2.01(b)), the Borrowing, each payment or prepayment of principal of or interest on any Loan, and each payment of fees, each reduction of the Committed Amount and each conversion or continuation of any Loan shall be allocated pro-rata among the relevant Lenders in accordance with the respective Commitment Percentages of such Lenders (or, if the Commitments of such Lenders have expired or been terminated, in accordance with the respective principal amounts of the outstanding Loans of such Lenders); provided that, in the event any amount paid to any Lender pursuant to this Section 2.10 is rescinded or must otherwise be returned by the Agent, each Lender shall, upon the request of the Agent, repay to the Agent the amount so paid to such Lender, with interest for the period commencing on the date such payment is returned by the Agent until the date the Agent receives such repayment at a rate per annum equal to, during the period to but excluding the date two Business Days after such request, the Federal Funds Rate, and thereafter, the Base Rate plus two percent per annum.
SECTION 2.11. Sharing of Payments. The Lenders agree among themselves that, except to the extent otherwise provided herein, if any Lender shall obtain payment in respect of any Loan or any other obligation owing to such Lender under this Agreement through the exercise of a right of setoff, banker’s lien or counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, in excess of its pro-rata share of such payment as provided for in this Agreement, such Lender shall promptly pay in cash or purchase from the other Lenders a participation in such Loans and other obligations in such amounts, and make such other adjustments from time to time, as shall be equitable to the end that all Lenders share such payment in accordance with their respective ratable shares as provided for in this Agreement. The Lenders further agree among themselves that if payment to a Lender obtained by such Lender through the exercise of a right of setoff, banker’s lien, counterclaim or other event as aforesaid shall be rescinded or must otherwise be restored, each Lender which shall have shared the benefit of such payment shall, by payment in cash or a repurchase of a participation theretofore sold, return its share of that benefit (together with its share of any accrued interest payable with respect thereto) to each Lender whose payment shall have been rescinded or otherwise restored. The Borrower agrees that any Lender so purchasing such a participation may, to the fullest extent permitted by law, exercise all rights of payment, including setoff, banker’s lien or counterclaim, with respect to such participation as
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fully as if such Lender were a holder of such Loan or other obligation in the amount of such participation. If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 2.11 applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders under this Section 2.11 to share in the benefits of any recovery on such secured claim.
SECTION 2.12. Payments; Computations; Proceeds of Collateral, Etc.
(a)Payments by the Borrower. Unless otherwise expressly provided in a Loan Document, all payments by the Borrower to the Protected Parties pursuant to each Loan Document shall be made by the Borrower (or by its designee) to the Agent for the pro rata account of the Protected Parties entitled to receive such payment or, at the direction of the Agent, directly to such Protected Parties. All payments shall be made without setoff, deduction (except for Taxes which are expressly addressed in Section 3.01) or counterclaim not later than 11:00 A.M. New York City time on the date due in Dollars in same day or immediately available funds to such account or accounts (if payment is to be made directly to the Protected Parties) as the Agent shall specify from time to time by notice to the Borrower. Funds received after that time shall be deemed to have been received by the Agent or a Protected Party, as the case may be, on the next succeeding Business Day. In the event that a payment is made to Agent for the pro rata account of the Protected Parties entitled to such payment, the Agent shall promptly remit in same day funds to each Protected Party its share, if any, of such payments received by the Agent for the account of such Protected Party. Whenever any payment is to be made hereunder or under any Loan, or whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and interest at the Applicable Rate shall accrue on such amount from the first day of such Interest Period to the last day of such Interest Period (regardless whether such last day is not a Business Day); provided, that such next succeeding Business Day shall not be included in such Interest Period but shall be included in the next succeeding Interest Period.
(b)Distributions by the Agent. Each such distribution by the Agent to such Protected Party shall be made in accordance with Section 2.07. Upon the request of any Protected Party, the Agent in its sole discretion may cause to be distributed to such Protected Party on such due date a corresponding amount with respect to the amount then due such Protected Party. If and to the extent the Borrower shall not have so made such payment in full to the Agent and the Agent shall have so caused to be distributed to such Protected Party a corresponding amount with respect to the amount then due such Protected Party, such Protected Party shall repay to the Agent forthwith on demand such amount distributed to such Protected Party together with interest thereon, for each day from the date such amount is distributed to such Protected Party until the date such Protected Party repays such amount, at the Federal Funds Rate for the first three Business Days after demand by the Agent and at the Applicable Rate thereafter until the date such Protected Party repays such amount to the Agent.
(c)Erroneous Distributions. If all or any part of any payment or other distribution by or on behalf of the Agent to any Protected Party is determined by the Agent, in its sole discretion, to have been made in error, whether known to the recipient or not, or if such
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recipient is not otherwise entitled to receive such distribution under the provisions of this Agreement or any other Loan Document at such time and in such amount from the Agent, as determined by the Agent (any such distribution, an “Erroneous Distribution”), then the relevant Protected Party shall forthwith on written demand (accompanied by a reasonably detailed calculation of such Erroneous Distribution) repay to the Agent an amount equal to such Erroneous Distribution made to such Protected Party in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by or on behalf of the Agent to such Protected Party to the date such amount is repaid to the Agent in immediately available funds at the Federal Funds Rate from time to time in effect. Any determination by the Agent, in its sole discretion, that all or a portion of any distribution to a Protected Party was an Erroneous Distribution shall be conclusive absent manifest error. Each Protected Party hereunder waives any claim of discharge for value and any other claim of entitlement to, or in respect of, any Erroneous Distribution.
(d)Computations. All computations of interest and fees hereunder shall be made on the basis of the actual number of days elapsed over a year of 360 days. Interest shall accrue from and include the date of borrowing but exclude the date of payment.
(e)No Reborrowing. No Loans repaid or prepaid may be reborrowed.
SECTION 2.13. Adjustments to Advance Rate, Flex Advance Rate, Borrowing Base and Flex Borrowing Base. The percentages specified in the definitions of “Advance Rate”, “Flex Advance Rate”, “Borrowing Base” and “Flex Borrowing Base” may be modified by the agreement of all of the Lenders and the Borrower. Any change in any such percentage shall take effect on the next succeeding Settlement Date or as otherwise agreed by the Borrower and each of the Lenders.
SECTION 2.14. Interest Rate Risk Management. The Borrower agrees that, upon the occurrence of any Hedging Event, it will enter into one or more Acceptable Derivative Agreements (having an aggregate notional amount equal to between 80% and 110% of the outstanding principal amount of the Loans) in consultation with the Agent no later than the last day of the Required Time Period, using funds available under clause (y) of clause sixth of Section 2.07(c)(i), (ii) or (iii), as applicable.
The Borrower will, to the extent required by any Committed Lender, amend any Acceptable Derivatives Agreement which is then in effect at any time when there is (i) any increase in the outstanding principal amount of the Loans or (ii) any change in the contractual payment schedule of the Loans, so that such Acceptable Derivatives Agreement, as amended, would comply with the definition of “Acceptable Derivatives Agreement” if first entered into on the date of such amendment.
Amounts received by the Borrower under any Acceptable Derivatives Agreement shall be deposited into the Collection Account and applied as set forth in Section 2.07(c).
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ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.01. Taxes.
(a)Payments Net of Certain Taxes. Any and all payments by the Borrower to or for the account of any Protected Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings imposed by any Governmental Authority, and all liabilities with respect thereto (hereinafter referred to as “Taxes”), excluding, in the case of each Protected Party, (i) Taxes imposed on its net income, and franchise, branch profits, capital or net worth Taxes imposed on it, in each case by the jurisdiction under the laws of which such Protected Party is organized or has an office or place of business, other than solely on account of being a party to, receiving a payment or income under, or enforcing, this Agreement or any other Loan Document, or any political subdivision thereof, and (ii) any U.S. federal withholding Taxes imposed under FATCA (all such non-excluded Taxes being hereinafter referred to as “Indemnified Taxes”). If the Borrower shall be required by law to deduct or withhold any Taxes from or in respect of any sum payable under this Agreement or any other Loan Document to any Protected Party, (i) if such Taxes are Indemnified Taxes, the sum payable shall be increased as necessary so that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 3.01) such Protected Party receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and withholdings, (iii) the Borrower shall pay the full amount deducted or withheld to the relevant taxation authority or other authority in accordance with Applicable Law and (iv) the Borrower shall furnish to the Agent, at the Agent’s Office, the original or a certified copy of a receipt evidencing payment thereof.
(b)Other Taxes. In addition, the Borrower agrees to pay any and all present or future stamp or documentary, excise or property Taxes or similar levies which arise from any payment made under this Agreement or any other Loan Document or from the execution or delivery of, or otherwise with respect to, this Agreement or any other Loan Document (hereinafter referred to as “Other Taxes”).
(c)Additional Taxes. The Borrower agrees to indemnify each Protected Party for the full amount of Indemnified Taxes and Other Taxes (including any Indemnified Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 3.01) paid or payable by such Protected Party and any liability (including penalties, interest and reasonable expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Protected Party, shall be conclusive absent manifest error.
(ii)Each Committed Lender shall severally indemnify the Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any
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Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(e) relating to the maintenance of a Participant Register and (iii) any Taxes excluded under Section 3.01(a) above attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this paragraph (ii).
(d)Tax Forms and Certificates. Each Lender that is a U.S. person shall, on or prior to the date of its execution and delivery of this Agreement in the case of each Lender listed on the signature pages thereof and on or prior to the date on which it becomes a Lender in the case of each other Lender, and from time to time thereafter as required by law on or prior to the expiration of the form or certificate most recently provided, provide the Borrower and the Agent with true, complete and correct Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax. Each Lender organized under the laws of a jurisdiction outside the United States (a “Non-U.S. Lender”) shall, on or prior to the date of its execution and delivery of this Agreement in the case of each Lender listed on the signature pages thereof and on or prior to the date on which it becomes a Lender in the case of each other Lender, and from time to time thereafter as required by law on or prior to the expiration of the form or certificate most recently provided, provide the Borrower and the Agent with true, complete and correct (i) Internal Revenue Service Form W8BEN, W-8BEN-E, W-8IMY or W8ECI, as appropriate, or any successor form prescribed by the Internal Revenue Service, certifying that such Lender is entitled to benefits under an income tax treaty to which the United States is a party which reduces to zero the rate of withholding Tax on payments of interest or certifying that the income receivable pursuant to this Agreement is effectively connected with the conduct of a trade or business in the United States or (ii) any other form or certificate required by any United States taxing authority (including any certificate required by Sections 871(h) and 881(c) of the Internal Revenue Code), certifying that such Lender is entitled to an exemption from Tax on payments pursuant to this Agreement or any of the other Loan Documents. Additionally, if a Lender or Protected Party sells, assigns or transfers any participation in a Loan to another Person, such Lender or Protected Party shall provide any new forms required as a result of such sale or transfer (including, if necessary, Internal Revenue Service Form W8IMY).
(e)Failure to Provide Tax Forms and Certificates. For any period with respect to which a Lender has failed to provide the Borrower and the Agent with the appropriate form or certificate in the manner and as prescribed by Section 3.01(d) (unless such failure is due to a change in treaty, law or regulation occurring subsequent to the date on which a form originally was required to be provided), neither such Lender nor any related Protected Party shall be entitled to indemnification under Section 3.01(a) or 3.01(c) with respect to Taxes imposed by the United States or any political subdivision therein as a result of such failure (and such Taxes shall not be considered an “Indemnified Tax”).
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(f)Obligations in Respect of Non-U.S. Lenders. The Borrower shall not be required to indemnify any Non-U.S. Lender or related Protected Party or to pay any additional amounts to any Non-U.S. Lender or related Protected Party, in respect of United States Federal withholding Tax pursuant to subsections (a) or (c) above (and such Tax shall not be considered an “Indemnified Tax”) to the extent that the obligation to withhold amounts with respect to United States Federal withholding Tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a participant, on the date such participant acquired its participation interest) or to the extent such obligation to withhold amounts with respect to United States federal withholding Tax arises after such date as a result of a change in residence, place of incorporation, principal place of business, or office or location in which Loans governed by this Agreement are booked or recorded by such Lender or Protected Party; provided, however, that this subsection (f) shall not apply (i) to any participant that becomes a participant as a result of an assignment, participation, transfer or designation made at the request of the Borrower or where a change of office or location in which Loans governed by this Agreement are booked or recorded is made at the request of the Borrower and (ii) to the extent the indemnity payment or additional amounts any participant would be entitled to receive (without regard to this subsection (f)) do not exceed the indemnity payment or additional amounts that the Person making the assignment, participation or transfer to such participant would have been entitled to receive in the absence of such assignment, participation, transfer or designation.
(g)Obligations in Respect of FATCA. Without duplication to a Lender’s obligation to provide tax forms or certificates under Section 3.01(d), if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Taxes imposed under FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payments. Solely for purposes of this Section 3.01(g), FATCA shall include any amendments made to FATCA after the date of this Agreement.
(h)Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no
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event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i)Mitigation. If the Borrower is required to pay additional amounts to or for the account of any Protected Party pursuant to this Section 3.01, then such Protected Party will agree to use reasonable efforts to eliminate or reduce any such additional payment which may thereafter accrue if such change, in the judgment of such Protected Party, is not otherwise disadvantageous to such Lender.
(j)Tax Receipts. Within thirty days after the date of any payment of Taxes, the Borrower shall furnish to the Agent the original or a certified copy of a receipt evidencing such payment (to the extent one is so provided).
(k)Survival. Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in subsections (a) through (j) above shall survive the payment in full of principal and interest hereunder and under any instrument delivered hereunder.
SECTION 3.02. Illegality. If, on or after the date of this Agreement, the adoption of any Applicable Law, or any change in any Applicable Law, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for the applicable Lender to make, maintain or fund any of its Loans at a rate based upon the applicable Adjusted LIBOR Rate (such event being hereinafter referred to as an “Illegality Event”) and such Lender shall so notify the Agent, the Agent shall forthwith give notice thereof to the other Lenders and the Borrower, whereupon until such Lender notifies the Borrower and the Agent that the circumstances giving rise to such suspension no longer exist, interest on the Loan of such Lender shall accrue and be payable at the Base Rate. If an Illegality Event does not affect all Lenders, the Agent shall make a good faith effort to cause the Lenders that are not affected by such Illegality Event to purchase the Loans held by the affected Lenders. The foregoing shall not delay or otherwise affect the Borrower’s obligation to pay interest at the Base Rate as provided in this paragraph.
SECTION 3.03. Increased Costs and Reduced Return.
(a)If, on or after the date hereof, (i) the adoption of or any change in any Applicable Law (including any Existing Law (defined below)) or in the interpretation or application thereof applicable to any Protected Party, (ii) any request, guidance or directive (whether or not having the force of law) from any central bank or other Governmental Authority or (iii) the compliance, application or implementation by any Protected Party with the foregoing
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subclauses (i) or (ii) or any Existing Law, in each case made subsequent to the Effective Date (or, if later, the date on which such Protected Party becomes a Protected Party):
(i)shall subject such Protected Party to any Tax of any kind whatsoever with respect to any Loan made by it or its Note or its obligation to make Loans, or change the basis of taxation of payments to such Protected Party in respect thereof (except for (A) Indemnified Taxes and Other Taxes covered by Section 3.01 and (B) changes in Taxes measured by or imposed upon the net income or franchise Tax (imposed in lieu of such net income Tax), of such Protected Party or any Affiliate thereof);
(ii)shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Protected Party which is not otherwise included in the determination of the applicable Adjusted LIBOR Rate hereunder; or
(iii)shall impose on such Protected Party any other condition; and the result of any of the foregoing is to increase the cost to such Protected Party of making, converting into, continuing or maintaining any Loan or to reduce any amount receivable hereunder in respect thereof (any such increased cost or reduction hereinafter referred to as an “Increased Cost”), then, in any such case, upon notice to the Borrower from such Protected Party, through the Agent, in accordance herewith, the Borrower shall be obligated to pay such Protected Party, in accordance with Section 2.07(c), any additional amounts necessary to compensate such Protected Party on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b)If any Protected Party shall have determined that (i) the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any Applicable Law (including any Existing Law), regarding capital adequacy, (ii) any request, guidance or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, or (iii) the compliance, application or implementation by such Protected Party or its parent corporation of the foregoing subclauses (i) or (ii) or any Existing Law has or would have the effect of reducing the rate of return on such Protected Party’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Protected Party, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Protected Party’s (or parent corporation’s) policies with respect to capital adequacy), then, upon notice from such Protected Party to the Borrower, the Borrower shall be obligated to pay to such Protected Party in accordance with Section 2.07(c), such additional amount or amounts as will compensate such Protected Party on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction. Each determination by any such Protected Party of amounts owing under this Section 3.03 shall, absent manifest error, be conclusive and binding on the parties hereto. For the avoidance of doubt, an Applicable Law regarding capital adequacy shall include, but not be
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limited to, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act; (ii) the publication entitled “Basel III: A global regulatory framework for more resilient banks and banking systems,” as updated from time to time (“Basel III”); or (iii) any implementing rules, regulations, guidance, interpretations or directives from any Official Body relating to the Dodd-Frank Wall Street Reform and Consumer Protection Act or Basel III (whether or not having the force of law and whether any such Applicable Law becomes effective before or after the date hereof) (collectively, “Existing Law”).
(c)A certificate of each Protected Party setting forth such amount or amounts as shall be necessary to compensate such Protected Party or its holding company as specified in subsection (a) or (b) above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Protected Party the amount shown as due on any such certificate delivered by it on the next succeeding Settlement Date in accordance with Section 2.07(c).
(d)Promptly after any Protected Party becomes aware of any circumstance that will, in its sole judgment, result in a request for increased compensation pursuant to this Section 3.03, such Protected Party shall notify the Borrower thereof. Failure on the part of any Protected Party so to notify the Borrower or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any period shall not constitute a waiver of such Protected Party’s right to demand compensation with respect to such period or any other period. The protection of this Section 3.03 shall be available to each Protected Party regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
SECTION 3.04. Funding Losses. The Borrower shall indemnify each Protected Party against any loss or reasonable expense (but excluding in any event loss of anticipated profit) which such Protected Party may sustain or incur as a consequence of (i) any failure by the Borrower to fulfill on the date of any Borrowing hereunder the applicable conditions set forth in Article IV, so long as any such failure is not solely due to the failure of the Agent or any Lender to comply with its obligations hereunder in all material respects, (ii) any failure by the Borrower to borrow or to refinance the Loans hereunder after irrevocable notice of such Borrowing, or refinancing has been given pursuant to Section 2.02 or 2.07, so long as any such failure is not solely due to the failure of the Agent or any Lender to comply with its obligations hereunder in all material respects or (iii) any payment or prepayment of a Loan, whether voluntary or involuntary, pursuant to any other provision of this Agreement or otherwise made on a date other than the Settlement Date applicable thereto, so long as any such payment, prepayment or conversion is not solely due to the failure of the Agent or any Lender to comply with its obligations hereunder in all material respects (each such loss or expense, a “Funding Loss”). Such Funding Losses shall be determined by each Protected Party in its sole discretion and shall include an amount equal to the excess, if any, as reasonably determined by such Protected Party, of (i) its cost of obtaining the funds for the Loan being paid, prepaid or not borrowed (based on the Benchmark), for the period from the date of such payment, prepayment or failure to borrow to the last day of the then applicable Interest Period (or, in the case of a failure to borrow, the Interest Period for such Loan which would have been applicable to such Loan on the date of such failure to borrow) over (ii) the amount of interest (as reasonably determined by such Protected Party) that would be realized
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by such Protected Party in reemploying the funds so paid, prepaid or not borrowed or continued for such period or Interest Period, as the case may be. For the avoidance of doubt, any amounts payable under this Section 3.04 shall be calculated on the basis of the Committed Lender or the Conduit Lender, as applicable, obtaining funds for its Loans based on borrowing for a one-month period. A certificate of any Protected Party setting forth any amount or amounts which such Protected Party is entitled to receive pursuant to this Section 3.04 shall be delivered to the Borrower and shall be conclusive absent manifest error.
SECTION 3.05. Market Disruption.
(a)If a Market Disruption Event (as defined in subsection (b) of this Section 3.05) exists with respect to any Loan bearing interest at the Applicable Rate for any day during any Interest Period, then the portion of such Loan held by each Lender for such Interest Period shall bear interest on the outstanding principal amount thereof, for each day during each Interest Period applicable thereto, at a rate per annum (in lieu of the Applicable Rate with respect to such Loan prior to giving effect to such Market Disruption Event) equal to the sum of:
(1)the Facility Margin; plus
(2)the actual cost of funds of such Lender(s) for such Interest Period; provided that, if a Market Disruption Event (as defined in subsection (b) of this Section 3.05) exists and the provisions of this Section 3.05 are applicable, then each affected Lender shall certify, in a statement provided to the Agent and the Borrower, its actual costs of funds for such Interest Period; plus
(3)at any time after the Step-Up Date, the Step-Up Margin.
(b)For purposes of this Section 3.05, “Market Disruption Event” means, with respect to any Loan bearing interest at the Applicable Rate for any day during any Interest Period, one or more Lenders provide notice to the Agent and the Borrower, not less than three (3) Business Days prior to the commencement of such Interest Period, that, with respect to such Interest Period, LIBOR does not accurately reflect the cost to such Lender(s) of maintaining or funding its Loans for such Interest Period and the actual cost of funds of such Lender(s) for such Interest Period is greater than LIBOR.
(c)Notwithstanding and in lieu of anything provided herein or in any other Transaction Document to the contrary, with respect to each Interest Period with respect to which a Market Disruption Event is applicable, the Borrower shall pay to each affected Lender interest for such Interest Period at the rate provided in subsection (a) of this Section 3.05.
ARTICLE IV.

CONDITIONS
SECTION 4.01. [Reserved].
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SECTION 4.02. Conditions to the Facility Closing Date. This Agreement shall become effective upon the receipt by the Agent of the following:
(a)Executed Loan Documents. The Agent shall have received fully-executed original copies of this Agreement and the other Loan Documents.
(b)Organization Documents. The Agent has received a copy of the Organization Documents of each Facility Party, certified as of a recent date by the Secretary of State of Delaware.
(c)Good Standing Certificates. The Agent has received a certificate as to the good standing of each Facility Party from the Secretary of State of Delaware, as of a recent date.
(d)Secretary’s Certificate. The Agent has received a certificate of the Secretary or Assistant Secretary of each Facility Party, dated as of the Facility Closing Date and certifying (A) that the certificate or articles of incorporation or other Organization Documents, as applicable, of such Facility Party have not been amended either since the date of the last amendment thereto shown on the related certificate furnished pursuant to clause (b) above; (B) that attached thereto is a true and complete copy of the operating agreement or by-laws of such Facility Party, as in effect on the Facility Closing Date and in effect at all times since a date prior to the date of the resolutions described in clause (C) below; (C) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or other governing body of such Facility Party, authorizing the execution, delivery and performance of Loan Documents to which it is to be a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (D) as to the incumbency and specimen signature of each officer executing Loan Documents to which it is a party or any other document delivered in connection herewith or therewith on behalf of such Facility Party.
(e)Incumbency. The Agent has received a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (d) above.
(f)Legal Opinions. The Agent has received, in each case addressed to the Agent and each Lender, a favorable written opinion dated the date of this Agreement, in form and substance satisfactory to the Agent:
(i)from Vedder Price P.C., counsel to the Facility Parties;
(ii)from in-house counsel to the Facility Parties; and
(iii)from counsel to the Collateral Agent.
(g)Representations and Warranties. The representations and warranties made by each Facility Party in any Transaction Document to which it is a party are true and correct in all material respects at and as if made as of the Facility Closing Date except to the extent they expressly relate to an earlier date.
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(h)No Default. No Default, Event of Default, Servicer Default, Servicer Event of Default, Early Amortization Event, event listed in Section 3.01(b)(i)-(v), inclusive, of the Administrative Services Agreement or event listed in Section 6.02(a)-(g), inclusive, of the Insurance Management Agreement shall exist or be continuing as of the Facility Closing Date.
(i)Officer’s Certificate. The Agent shall have received a certificate, dated the Facility Closing Date and signed by a Responsible Officer of each Facility Party confirming compliance with the conditions precedent set forth in clauses (g) and (h) of this Section 4.02.
(j)Solvency Certificate. The Agent shall have received a solvency certificate executed by a Responsible Officer of the Borrower, in form and substance satisfactory to the Agent, setting forth the conclusions that, the Borrower is and, after consummation of the transactions contemplated hereby and by the other Transaction Documents and Lease Documents, will be Solvent.
(k)[Reserved]
(l)Perfection of Security Interests; Search Reports. On or prior to the Facility Closing Date, the Agent shall have received:
(i)[Reserved];
(ii)[Reserved];
(iii)appropriate financing statements (Form UCC-1, Form UCC-3 or such other financing statements or similar notices as shall be required by local law) for filing under the Uniform Commercial Code or other applicable local law of each jurisdiction in which the filing of a financing statement or giving of notice may be required, or reasonably requested by the Agent or the Collateral Agent, to perfect the security interests intended to be created by the Collateral Documents;
(iv)copies of reports from CT Corporation Service System or other independent search service reasonably satisfactory to the Agent listing all effective financing statements that name either TRIP Party, as such (under its present name and any previous name and, if requested by the Agent, under any trade names), as debtor or seller that are filed in the jurisdictions wherein such filing would be effective to perfect a Lien in the Collateral or any portion thereof, together with copies of such financing statements (none of which shall cover the Collateral except to the extent evidencing Permitted Liens) or for which the Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local law) fully executed for filing; and
(v)evidence of the completion of all other filings and recordings of or with respect to the Collateral Documents, including, without limitation, all filings and recordings specified in Schedule B to the Security Agreement, and of all other actions as may be necessary or, in the opinion of the Agent, desirable to perfect the security interests intended to be created by the Collateral Documents.
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(m)Material Adverse Effect. There shall not have occurred since December 31, 2020 any development or event relating to or affecting any Facility Party which has had or could be reasonably expected to have a Material Adverse Effect, except as disclosed in (i) Trinity’s Form 10-K for the fiscal year ended December 31, 2020 filed with the Securities and Exchange Commission and (ii) Trinity’s Form 10-Q for the fiscal quarter ended March 31, 2021 filed with the Securities and Exchange Commission.
(n)Litigation; Judgments. On the Facility Closing Date, there shall have been no actions, suits, proceedings or investigations pending (i) with respect to any Transaction Document or the transactions contemplated thereby, (ii) against the Borrower or (iii) against the Servicer or the Marks Company and which the Agent or the Required Lenders shall determine could reasonably be expected to have a Material Adverse Effect. Additionally, there shall not have existed any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon the consummation of the transactions contemplated by the Transaction Documents and otherwise referred to herein or therein.
(o)Other Documents. The Agent has received such other documents as the Agent or Mayer Brown LLP, counsel for the Agent, may reasonably request.
SECTION 4.03. Conditions to the Funding Date. The obligation of any Committed Lender to make a Loan on the occasion of the Borrowing is subject to the prior approval by the Agent (and the Required Lenders, as applicable) at the Borrower’s request to purchase the applicable Railcars and Leases to be acquired on the Funding Date, in accordance with Section 2.02, and to the satisfaction of the following conditions:
(a)Notice. The Borrower shall have delivered to the Agent an appropriate Notice of Borrowing, duly executed and completed, by the time specified in Section 2.02.
(b)Representations and Warranties. The representations and warranties made by each Facility Party in any Transaction Document to which it is a party are true and correct in all material respects at and as if made as of the date of the Borrowing except to the extent they expressly relate to an earlier date.
(c)No Default. No Default, Event of Default, Servicer Default, Servicer Event of Default, Early Amortization Event, event listed in Section 3.01(b)(i)-(v), inclusive, of the Administrative Services Agreement or event listed in Section 6.02(a)-(g), inclusive, of the Insurance Management Agreement shall exist or be continuing either prior to or after giving effect thereto.
(d)No Collateral Deficiency. Immediately after giving effect to the making of the Loans (and the application of the proceeds thereof), there shall not exist any Collateral Deficiency, and the Borrower shall have complied with the first sentence of the last paragraph of Section 2.01(a).
(e)Leases; Collateral Certificate. Receipt by the Agent of (i) a copy of each Lease applicable to each Railcar which is to become a Portfolio Railcar on the Funding Date; (ii) (A) with respect to any Lease not requiring the Lessee to pay all rent and other amounts payable by the Lessee to the “Lessor” under the Lease to the Customer Payment Account, a Notice of
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Lease Assignment with respect to such Lease, substantially in the form of Exhibit E4 hereto, duly executed and delivered by the Borrower, or (B) if the consent of the Lessee is required under the terms of any applicable Lease, a Lessee Consent, duly executed by the Borrower and the applicable Lessee; and (iii) an originally executed Collateral Certificate with respect to each relevant Railcar and Lease.
(f)Recordations and Filings. The Agent shall have received evidence satisfactory to it in its reasonable discretion from special STB counsel to the Borrower and from special Canadian counsel to the Borrower, oral or email confirmation that no Liens exist on the applicable Railcars and Leases to be acquired by the Borrower on the Funding Date, which would have priority over the Liens granted to the Collateral Agent on the Funding Date (and within three (3) Business Days of the Funding Date, the Borrower shall procure an opinion addressed to the Agent and each Lender, dated the Funding Date, substantially in the form of Exhibits D-4 and D-5 hereto, respectively, and covering such additional matters incident to the transactions contemplated hereby as the Agent may reasonably request).
(g)Title to the Collateral. The Borrower shall have good and marketable title to each applicable Railcar and good title to all other items of applicable Collateral, free and clear of all Liens created or incurred by it or permitted to exist by it other than Permitted Liens.
(h)Evidence of Insurance. The Agent shall have received evidence, to the extent not previously furnished, that liability and casualty insurance meeting the requirements set forth in Section 6.06 is in effect with respect to each applicable Railcar to be acquired on the Funding Date.
(i)Assignment of Leases and Permits. A duly executed counterpart of any agreement required to establish a perfected first priority Lien in favor of the Collateral Agent for the benefit of the Lenders relating to the Lease of each Railcar being funded on the Funding Date, dated as of the Funding Date, satisfactory in form and substance to the Agent or the Collateral Agent, and evidence from the official records of the STB and the Registrar General of Canada (or a legal opinion in form and substance reasonably acceptable to the Agent or the Collateral Agent) that such agreement (or a memorandum thereof) has been registered, recorded or filed for recordation in accordance with Applicable Law. In addition, the Agent shall have received satisfactory evidence that any Permits needed to make all required payments under each such Lease to the Borrower in Dollars have been obtained and are in full force and effect.
(j)Legal Opinions. The Agent has received, in each case addressed to the Agent and each Lender, a favorable written opinion dated the Funding Date, in form and substance satisfactory to the Agent:
(i)from Vedder Price P.C., counsel to the Facility Parties;
(ii)from Fasken Martineau DuMoulin LLP, special Canadian counsel;
(iii)from Alvord and Alvord PLLC, special STB counsel; and
(iv)from Morris James LLP, special Delaware counsel.
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(k)Marks Company Matters. The Agent shall have received evidence satisfactory to it in its reasonable discretion that the Trinity Marks relating to the Railcars to be funded on such date have been added to the separate portfolio of trust assets of the Marks Company.
(l)Independent Appraisal. The Agent has received an Independent Appraisal dated within the 60 days prior to the Funding Date with respect to all of the Portfolio Railcars in satisfaction of Section 6.10(c)(i).
(m)Funding Package. Receipt of the complete Funding Package for each such Railcar, including a Bill of Sale. The Independent Appraisal (if required) included within such Funding Package shall be issued and dated within 60 days of the proposed Funding Date.
(n)Eligibility. A Responsible Officer of the Borrower shall have certified to the Agent and each Lender that (i) each Railcar which is to become a Portfolio Railcar on the Funding Date, is an Eligible Railcar and (ii) each Lease which is to become a Portfolio Lease on the Funding Date is an Eligible Lease.
(o)Other Documents. Originals of each of the documents (including all Railcar Documentation) delivered to the Borrower pursuant to the relevant Lease Documents shall have been provided to the Agent.
(p)[Reserved].
(q)[Reserved].
(r)Payoff Letter. A payoff letter from all Persons (if any) holding Liens of record (other than Permitted Liens) on or prior to the Funding Date, with respect to any applicable Railcar shall have been delivered to the Agent.
(s)Liquidity Reserve Account. Confirmation that the Liquidity Reserve Account has been funded to the Liquidity Reserve Target Amount on the Funding Date.
(t)Payoff Amount. Receipt by the Agent of a certificate executed by a Responsible Officer of TRIP confirming that the Purchase Price of Eligible Railcars and related Eligible Leases purchased on the Funding Date, together with other amounts available to TRMF for such purpose, equals the amount required to redeem in full all existing indebtedness of TRMF secured by the Portfolio Railcars and Portfolio Leases in accordance with the applicable documentation.
(u)Payment of Fees and Expenses. The Agent has received evidence that all costs, fees (including any unpaid Unused Fees) and expenses due to the Agent and the Lenders on or before the Funding Date shall have been paid, in each case to the extent invoiced or otherwise notified to the Borrower in writing, including attorneys' fees.
(v)Other Documents and Action. Each Facility Party shall deliver to the Agent such other instruments, agreements and documents and take such other action as the Agent may reasonably request in connection with the Loans to be made on the Funding Date.
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The delivery of each Notice of Borrowing shall constitute a representation and warranty by the Borrower of the correctness of the matters specified in subsections (b), (c), (d), (g) and (n) above.
ARTICLE V.

REPRESENTATIONS AND WARRANTIES
Each TRIP Party represents and warrants as of the Facility Closing Date and the Funding Date that:
SECTION 5.01. Organization and Good Standing. The Borrower is a limited liability company duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation, has all company powers and all material governmental business authorizations, consents and approvals required to carry on its business as now conducted and is duly qualified as a foreign limited liability, licensed and in good standing in each jurisdiction where qualification or licensing is required by the nature of its business or the character and location of its property, business or customers and in which the failure to so qualify or be licensed or in good standing, as the case may be, in the aggregate, could have a Material Adverse Effect. The Servicer is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its formation, has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and is duly qualified as a foreign corporation, licensed and in good standing in each jurisdiction where qualification or licensing is required by the nature of its business or the character and location of its property, business or customers and in which the failure to so qualify or be licensed or in good standing, as the case may be, in the aggregate, could have a Material Adverse Effect.
SECTION 5.02. Power; Authorization; Enforceable Obligations. Each TRIP Party has the corporate or other necessary power and authority, and the legal right to execute, deliver and perform the Transaction Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit hereunder, and has taken all necessary corporate or other action to authorize the borrowings and other actions on the terms and conditions of this Agreement and to authorize the execution, delivery and performance by it of the Transaction Documents to which it is a party. No consent, approval, licenses, validation or authorization of, filing, recording or registration with, notice to, exemption by or other similar act by or in respect of, any Governmental Authority or any other Person (including, without limitation, any stockholder, certificateholder or creditor of any Facility Party or any of their respective Subsidiaries) is required to be obtained or made by or on behalf of either TRIP Party in connection with the borrowings or other extensions of credit hereunder, the execution, delivery, performance, validity or enforceability by or against it of the Transaction Documents or the exercise of the rights and remedies of the Agent, the Collateral Agent or any other Protected Party pursuant to this Agreement or any other Loan Document, except for (i) consents, authorizations, notices and filings disclosed in Schedule C, all of which have been obtained or made, (ii) filings to perfect and maintain the perfection of the Liens created by the Collateral Documents and (iii) consents, authorizations, notices and filings in connection with the disposal of Collateral required by laws affecting the offering and sale of securities. This Agreement has been, and each other Transaction Document to which each TRIP Party is a party will be, duly
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executed and delivered on behalf of such Person. This Agreement constitutes, and each other Transaction Document to which each TRIP Party is a party when executed and delivered will constitute, a legal, valid and binding obligation of each TRIP Party party thereto, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by equitable principles of general applicability (regardless of whether enforcement is sought by proceedings in equity or at law).
SECTION 5.03. No Conflicts. Neither the execution and delivery by the TRIP Parties of the Transaction Documents to which each is a party, nor the consummation of the transactions contemplated therein, nor performance of and compliance with the terms and provisions thereof by the Borrower, nor the exercise of remedies by the Agent, the Collateral Agent or the Lenders under the Loan Documents, will (i) violate or conflict with any provision of the Organization Documents of either TRIP Party, (ii) violate, contravene or conflict with any Applicable Law (including Regulation U or Regulation X), (iii) violate, contravene or conflict with any Contractual Obligation to which either TRIP Party is a party or by which either TRIP Party may be bound, or (iv) result in or require the creation of any Lien (other than the Lien of the Collateral Documents) upon or with respect to the properties of either TRIP Party.
SECTION 5.04. No Default. Neither TRIP Party is in, and to the knowledge of each TRIP Party after due inquiry, TILC is not in default in any respect under any Contractual Obligation to which it is a party or by which any of its properties is bound, in each case which default has had or could reasonably be expected to have a Material Adverse Effect. No Default, Servicer Default, Servicer Event of Default, Early Amortization Event, or Event of Default has occurred and is continuing.
SECTION 5.05. Financial Condition.
(a)Audited Financial Statements. The consolidated balance sheet of TRIP and its consolidated Subsidiaries as of December 31, 2020 and the related consolidated statements of income and cash flows for the fiscal year then ended, reported on by TRIP’s independent auditors, copies of which have been delivered to each of the Lenders, fairly present, in conformity with GAAP, the consolidated financial position of TRIP and its consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year.
(b)No Disposition or Acquisition. During the period from December 31, 2020 to and including the Funding Date, there has been no sale, transfer or other disposition by TRIP or any of its consolidated Subsidiaries of any material part of the business or property of TRIP and its consolidated Subsidiaries, taken as a whole, and no purchase or other acquisition by them of any business or property (including any Equity Interests of any other Person) material in relation to the consolidated financial condition of TRIP and its consolidated Subsidiaries, taken as a whole, which is not reflected in the foregoing financial statements or in the notes thereto. The balance sheets and the notes thereto included in the financial statements referred to in this subsection (a) above disclose all liabilities, actual or contingent, of TRIP and its consolidated Subsidiaries as of the date thereof required to be disclosed therein in accordance with GAAP.
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(c)Post-Closing Financial Statements. The financial statements to be delivered to the Lenders pursuant to Section 6.01(a) and (b), if any, (i) will have been prepared in accordance with GAAP (except as may otherwise be permitted under Section 6.01(a) and (b)) and (ii) will present fairly (on the basis disclosed in the footnotes to such financial statements, if any) the consolidated financial condition, results of operations and cash flows of TRIP and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby.
(d)No Undisclosed Liabilities. Except as set forth in the financial statements described in subsections (a) and (b) above or in any public disclosure filed by Trinity with the United States Securities and Exchange Commission, and for the Debt incurred under this Agreement, (i) there were as of the Facility Closing Date and the Funding Date (and after giving effect to any Loans made on such date), no liabilities or obligations (excluding current obligations incurred in the ordinary course of business) with respect to any Facility Party of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due and including obligations or liabilities for Taxes, long-term leases and unusual forward or other long-term commitments), and (ii) neither TRIP Party knows of any basis for the assertion against either TRIP Party or, to the knowledge of each TRIP Party, against TILC, of any such liability or obligation which, either individually or in the aggregate, are or could reasonably be expected to have, a Material Adverse Effect.
SECTION 5.6. No Material Change. Since December 31, 2020 there has been no Material Adverse Effect, and no event or development has occurred which could reasonably be expected to result in a Material Adverse Effect, except as disclosed in (i) Trinity’s Form 10-K for the fiscal year ended December 31, 2020 filed with the Securities and Exchange Commission and (ii) Trinity’s Form 10-Q for the fiscal quarter ended March 31, 2021 filed with the Securities and Exchange Commission.
SECTION 5.7. Title to Properties. On the Funding Date and during and during the term of this Agreement, the Borrower shall be the sole legal and beneficial owner of and shall have good and marketable title to each Portfolio Railcar and Portfolio Lease and all of its other material properties and assets, except, in the case of assets other than Portfolio Railcars and Portfolio Leases, for minor defects in title that do not interfere with its ability to conduct its business as currently conducted. All such Portfolio Railcars and Portfolio Leases and other material properties and assets will be free and clear of Liens other than Permitted Liens.
SECTION 5.8. Litigation. There are no actions, suits, investigations or legal, equitable, arbitration or administrative proceedings pending or overtly threatened (or any basis therefor known to either TRIP Party) against or affecting either TRIP Party or, to the knowledge of each TRIP Party after due inquiry, affecting TILC that (i) involve any Transaction Document or (ii) could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
SECTION 5.9. Taxes. Each TRIP Party and, to the knowledge of each TRIP Party after due inquiry, TILC has filed, or caused to be filed, all tax returns (including federal, state, local and foreign tax returns) the failure of which to be filed could reasonably be expected to result in a Material Adverse Effect and paid (i) all amounts of Taxes shown thereon to be due (including interest and penalties) and (ii) all other material Taxes, fees, assessments
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and other governmental charges (including mortgage recording Taxes, documentary stamp Taxes and intangible Taxes) owing by it, except for such Taxes (A) which are not yet delinquent or (B) that are being contested in good faith and by proper proceedings diligently pursued, and against which adequate reserves are being maintained in accordance with GAAP. Neither TRIP Party knows of any pending investigation of any TRIP Party by any taxing authority or proposed tax assessments against any TRIP Party.
SECTION 5.10. Compliance with Law.   Each TRIP Party and, to the knowledge of each TRIP Party after due inquiry, TILC is in compliance with all requirements of Applicable Law (including the Prohibited Nations Acts and Environmental Laws) applicable to it or to its properties, except where such failures to comply could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Neither TRIP Party and, to the knowledge of each TRIP Party after due inquiry, nor TILC or any of their respective material properties or assets is subject to or in default with respect to any judgment, writ, injunction, decree or order of any court or other Governmental Authority, except where such defaults could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Neither TRIP Party and, to the knowledge of each TRIP Party after due inquiry, nor TILC has received any written communication from any Governmental Authority that alleges that any of them is not in compliance in any material respect with any Applicable Law, except for allegations that have been satisfactorily resolved and are no longer outstanding.
(b)To the Borrower’s knowledge, after making due inquiry, the Borrower is not under investigation by any Governmental Authority (i) for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any Applicable Law (collectively, “Anti-Money Laundering Laws”) or (ii) for or has been charged with, or convicted of any violation of Anti-Corruption Laws. The Borrower has taken reasonable measures appropriate to the circumstances (in any event as required by Applicable Law) to ensure that the Borrower is and will continue to be in compliance with all applicable current and future Anti-Money Laundering Laws, Anti-Corruption Laws and the Prohibited Nations Acts.
SECTION 5.11. ERISA.   Each Pension Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Applicable Laws. Each Pension Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the TRIP Parties, nothing has occurred which would prevent, or cause the loss of such qualification. The Borrower and each ERISA Affiliate have made all required contributions to each Pension Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Pension Plan.
(b)There are no pending or, to the best knowledge of the TRIP Parties, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Pension Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with
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respect to any Pension Plan that has resulted or could be reasonably expected to result in a Material Adverse Effect.
(c)    No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 305 or 4201 of ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.
SECTION 5.12. Subsidiaries. The Borrower has no Subsidiaries.
SECTION 5.13. Governmental Regulations, Etc. The Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock” within the meaning of Regulation U. No proceeds of the Loans will be used, directly, or indirectly, for the purpose of purchasing or carrying any “margin stock” within the meaning of Regulation U. If requested by any Lender or the Agent, the Borrower will furnish to the Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form U-1 referred to in Regulation U. “Margin stock” within the meaning of Regulation U does not constitute more than 25.00% of the value of the assets of the Borrower. None of the transactions contemplated by this Agreement (including the direct or indirect use of the proceeds of the Loans) will violate or result in a violation of the Securities Act, as amended, the Exchange Act or regulations issued pursuant thereto, or Regulation T, U or X.
(b)The Borrower is not subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act or the Investment Company Act of 1940, each as amended. In addition, the Borrower is not (i) an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended, (ii) controlled by such a company, or (iii) a “holding company”, a “subsidiary company” of a “holding company”, or an “affiliate” of a “holding company” or of a “subsidiary” of a “holding company”, within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(c)No director, executive officer or principal holder of any Equity Interest of either TRIP Party is a director, executive officer or principal shareholder of any Lender. For the purposes hereof, the terms “director”, “executive officer” and “principal shareholder” (when used with reference to any Lender) have the respective meanings assigned thereto in Regulation O.
SECTION 5.14. Purpose of Loans. The proceeds of the Loans made on the Funding Date will be used to (i) fund the Purchase Price of Eligible Railcars and related Eligible Leases purchased on the Funding Date and to pay fees and expenses incurred in connection therewith, and (ii) fund the Liquidity Reserve Account to the Liquidity Reserve Target Amount.
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SECTION 5.15. Labor Matters. There are no strikes against either TRIP Party or, to the knowledge of each TRIP Party after due inquiry, against TILC, other than any strikes that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. To the Borrower's knowledge, the hours worked and payments made to employees of each Facility Party have not been in violation in any material respect of the Fair Labor Standards Act or any other Applicable Law dealing with such matters. To the TRIP Parties' knowledge, all payments due from any Facility Party, or for which any claim may be made against any Facility Party, on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of the applicable Facility Party. The consummation of the transactions contemplated by the Transaction Documents and/or Lease Documents will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which each Facility Party is a party or by which it (or any predecessor) is bound, other than collective bargaining agreements which, individually or in the aggregate, are not material to any Facility Party.
SECTION 5.16. Environmental Matters.  Each TRIP Party has and, to the knowledge of each TRIP Party after due inquiry, TILC have complied in all respects with all applicable Environmental Laws, except where the failure to comply could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.  Neither TRIP Party has and, to the knowledge of each TRIP Party after due inquiry, nor TILC has, received written notice of any actual or claimed or asserted failure so to comply with Environmental Laws which alone, or together with any other such liability or notices which have been previously or concurrently received, could reasonably be expected to result in a Material Adverse Effect, other than in connection with failures which have been corrected. No hazardous wastes, hazardous substances, hazardous materials, toxic substances or toxic pollutants, as those terms are used in any Environmental Laws, are managed on any property of either TRIP Party, or to the knowledge of each TRIP Party after due inquiry, TILC, in violation of any regulations promulgated pursuant thereto or any other Applicable Law, except as could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.17. Intellectual Property. Each TRIP Party owns, or possesses the right to use, all of the Trinity Marks, trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other rights that are reasonably necessary for the operation of its business, without conflict with the rights of any other Person. To the best knowledge of the TRIP Parties, no slogan or other advertising devise, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the TRIP Parties infringes upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is pending or overtly threatened, and no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code is pending or, to the knowledge of each TRIP Party, proposed, which, in either case, could reasonably be expected to have a Material Adverse Effect.
SECTION 5.18. Solvency. The Borrower is and, after consummation of the transactions contemplated hereby and by the other Transaction Documents and Lease Documents, will be Solvent.
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SECTION 5.19. Disclosure. No statement, information, report, representation, or warranty made by either TRIP Party in any Transaction Document or furnished to the Agent or any Lender by or on behalf of either TRIP Party in connection with any Transaction Document (considered together with all other such information so furnished) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
SECTION 5.20. Security Documents.
(a)The Security Agreement is effective to create in favor of the Collateral Agent, for the ratable benefit of the Protected Parties, a legal, valid and enforceable security interest in the Collateral and, when the filings, recordations or other actions described in Section 3.02 of the Security Agreement shall have been completed, the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in the Collateral, in each case to the extent provided in such Section 3.02.
(b)The Collateral Agent, for the ratable benefit of the Protected Parties, will at all times have the Liens provided for in the Collateral Documents and, subject to the filing by the Agent of continuation statements to the extent required by the Uniform Commercial Code, the Collateral Documents will at all times constitute valid and continuing liens of record and first priority perfected security interests in all the Collateral referred to therein, except as priority may be affected by Permitted Liens.
SECTION 5.21. Ownership. (i) Trinity owns, directly or indirectly, 42.5559% of the Equity Interest of TRIP; (ii) Napier Park Railcar Lease Fund, LLC owns, directly or indirectly, 50.5184% of the Equity Interest of TRIP; and (iii) Liberty Mutual Insurance Company and Peerless Insurance Company collectively owns, directly or indirectly, 6.9257% of the Equity Interest of TRIP. TRIP owns good, valid and marketable title to all outstanding beneficial interests of the Borrower, free and clear of all Liens of every kind, whether absolute, matured, contingent or otherwise, and TILC owns good, valid and marketable title to all outstanding beneficial interests of the Marks Company, free and clear of all Liens of every kind (other than Liens encumbering SUBI Certificates issued by the Marks Company which do not relate to Marks applicable to any Portfolio Railcar), whether absolute, matured, contingent or otherwise.
SECTION 5.22. Lease Documents. The Borrower has delivered or caused to be delivered (i) to the Agent, to the extent required under Section 4.03(e), copies of the Portfolio Leases and any other Lease Document to which the Borrower is a party and (ii) any material amendments or supplements thereto to which the Borrower is a party, and, except for such amendments so disclosed to the Agent, such documents have not been materially amended or modified.
SECTION 5.23. Sole Business of the Borrower. The sole business of the Borrower is the ownership, leasing and financing of Railcars. The Borrower has not engaged in any activities since its organization (other than those incidental to its organization and other appropriate steps and arrangement for the payment of fees to, and director’s and officer’s insurance for, the officers and directors of the Borrower, the acquisition and leasing of the Portfolio Railcars and the funding of the Purchase Price thereof, the authorization and
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issuance of the Notes, the execution of this Agreement, and the other Transaction Documents and the Lease Documents to which it is a party and the activities referred to in or contemplated by such agreements), and the Borrower has not paid any dividends or other distributions since its organization, except as permitted pursuant to Section 7.07 hereof.
SECTION 5.24. Separate Corporate Structure; No Employees. At all times since the Facility Closing Date:
(i)The Borrower is operated as a separate legal entity from the Servicer and its Affiliates and will observe all corporate formalities necessary to remain a legal entity separate and distinct from, and independent of the Servicer and its Affiliates.
(ii)The Borrower has satisfied the minimum capitalization requirements under the laws of the State of Delaware for purposes of conducting its business.
(iii)The Borrower has complied in all respects with the requirements set forth in its Organization Documents.
(iv)The Borrower currently corresponds with all third parties with regard to the business of the Borrower on stationery with letterhead identifying the Borrower and containing no reference to the Servicer or its Affiliates (other than the Borrower).
(v)The Borrower keeps complete and accurate entity records, books, accounts and minutes separate from those of the Servicer and any of its Affiliates (other than the Borrower) or any other Person.
(vi)The Borrower has held itself out to the public (including to creditors of the Borrower, the Servicer and their Affiliates) under the Borrower’s own name as a separate and distinct entity.
(vii)The Borrower has not directly or indirectly entered into any transaction with the Servicer or any of its Affiliates except as expressly permitted by the Loan Documents and then in an arm’s-length bargain.
(viii)The Borrower has not loaned funds to, guaranteed or become obligated with respect to claims against the Servicer or any of its Affiliates or any other Person or entity except as expressly permitted by the Loan Documents or as provided by operation of consolidated group principles of U.S. federal income Tax and ERISA laws.
(ix)The Borrower has kept its assets and liabilities as reflected in its books and records separate from those of the Servicer and its Affiliates and has not and at all times will not commingle such assets and liabilities (except as expressly permitted pursuant to this Agreement).
(x)The Borrower has kept adequate records to permit the segregation of its assets and liabilities from those of the Servicer and its Affiliates.
(xi)The Borrower has not held itself out to the public as a division of the Servicer or the Servicer as a division of the Borrower.
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(xii)The Borrower has not induced third parties to rely on the creditworthiness of the Servicer in order to have third parties enter into contracts with the Borrower.
(xiii)The Borrower has and will pay its obligations in the ordinary course of business as a legal entity separate and distinct from the Servicer and its Affiliates.
(xiv)The Borrower has and will keep its funds separate and distinct from any funds of the Servicer and its Affiliates (except as contemplated by the use of the Customer Payments Account and except for misdirected Lease payments), and will receive, deposit, withdraw and disburse such funds separate from any funds of the Servicer and its Affiliates.
(xv)The Borrower has no employees.
(xvi)The Borrower is otherwise in compliance with the corporate governance and other factual assumptions applicable to it set forth in the “nonconsolidation” opinion delivered by Vedder Price P.C. on the Facility Closing Date.
SECTION 5.25. Leases. (i) Each Lease shown as an Eligible Lease on the Monthly Report most recently delivered to the Agent and the Lenders in accordance with Section 6.01(f) was an Eligible Lease as of the date of such Monthly Report, (ii) except as otherwise disclosed in writing by the Borrower to the Agent, no Lease Default or Lease Event of Default known to the Borrower or the Servicer after due inquiry is in existence under any Portfolio Lease and each Portfolio Lease is in full force and effect, (iii) except as otherwise disclosed in writing by the Borrower to the Agent and to each Lender, no Lease Event of Default due to failure to pay rent or Lessee insolvency known to either TRIP Party after due inquiry is in existence under any Portfolio Lease and no Portfolio Lease has been terminated due to a Lease Event of Default and (iv) the description of Lease Defaults or Lease Events of Default occurring under a Lease, if any, included in a Request and any supplement thereto accurately describes in all material respects Lease Defaults or Lease Events of Default during the periods described of which any Facility Party is aware after due inquiry as of the relevant Funding Date.
SECTION 5.26. Railcars. Each Railcar: (i) shown as an Eligible Railcar in the Funding Package was an Eligible Railcar on the Funding Date; and (ii) shown as an Eligible Railcar on the Monthly Report most recently delivered to the Agent and the Lenders in accordance with Section 6.01(f) was an Eligible Railcar as of the date of such Monthly Report.
SECTION 5.27. Sanctioned Person. (a) None of the Borrower, any Subsidiary, or any director, officer, or, to the knowledge of the Borrower, any employee, agent, or affiliate of the Borrower or any of its Subsidiaries, is an individual or entity that is, is Controlled by, or is majority owned (individually or in the aggregate, directly or indirectly) by, Persons that are the target of any sanctions administered or enforced by OFAC, the U.S. Department of State, the U.S. Department of Commerce, the United Nations Security Council, the European Union, or Her Majesty’s Treasury (collectively, “Sanctions”), or, in violation of Applicable law, is located, organized or resident in a country or territory that is, or whose government is, the target of comprehensive trade Sanctions, and (b) the Borrower will not use the proceeds of the Loans or lend, contribute or otherwise make available proceeds of the Loans to any Person, (i) to fund
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any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any person participating in the Loans).
SECTION 5.28. Beneficial Ownership. The information included in each Beneficial Ownership Certification is true and correct in all respects.
SECTION 5.29. Tax Status. The Borrower has not elected and will not elect to be treated as a corporation, nor, to its knowledge, has it engaged in any transaction which could result in it becoming taxable as a corporation, for U.S. federal income tax purposes.
SECTION 5.30. Additional Representations. In connection with the Agreement, the Borrower represents, warrants and agrees that:
(a)it has not, does not and will not during the term of the Agreement (x) issue any obligations that (i) constitute asset-backed commercial paper, or (ii) are securities required to be registered under the Securities Act of 1933 or that may be offered for sale under Rule 144A of the Securities and Exchange Commission thereunder, or (y) issue any other debt obligations or equity interests other than (1) debt obligations substantially similar to the obligations of the Borrower under the Agreement that are (A) issued to other banks or asset-backed commercial paper conduits in privately negotiated transactions, and (B) subject to transfer restrictions substantially similar to the transfer restrictions set forth in Section 11.06 and (2) equity interests issued to TRIP under the terms of Borrower LLC Agreement.
(b)its assets are consolidated with the assets and liabilities of TRIP for purposes of GAAP.
(c)it is not required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “1940 Act”) in reliance on an exemption or exclusion available under Section 3(b)(1) of the 1940 Act, although other statutory or regulatory exemptions may be available under the 1940 Act.
(d)it is not a “covered fund” as defined in the final regulations issued December 10, 2013, implementing Section 619 of the Dodd-Frank Act, commonly known as the “Volcker Rule”.
ARTICLE VI.

AFFIRMATIVE COVENANTS
Each of the Borrower and, solely with respect to Sections 6.01(d), (e), (h), (k) and (l) and 6.10(a) and (b), TRIP, agrees that so long as any Lender has any Commitment hereunder or any Obligation or other amount payable hereunder or under any Note or other Loan Document remains unpaid:
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SECTION 6.01. Information. The Borrower will furnish, or cause to be furnished, to the Agent and each of the Lenders:
(a)Annual Financial Statements.
(i)As soon as available, and in any event within 150 days after the end of each fiscal year of TRIP, a consolidated balance sheet and income statement of TRIP and its consolidated Subsidiaries, as of the end of such fiscal year, and the related consolidated statements of operations and retained earnings and cash flows for such fiscal year, and
(ii)As soon as available, and in any event within 120 days after the end of each of its fiscal years, its balance sheet and income statement as of the end of such fiscal year, and the related statements of operations and retained earnings and cash flows for such fiscal year, which financial statements shall be unconsolidated and contain the same information as is used to prepare the audited financial statements for TRIP,
in each case setting forth in comparative form figures for the preceding fiscal year, all such financial statements to be in reasonable form and detail and audited by Ernst & Young, LLP or other independent certified public accountants of recognized national standing reasonably acceptable to the Agent and accompanied by an opinion of such accountants (which shall not be qualified or limited in any material respect) to the effect that such financial statements have been prepared in accordance with GAAP and present fairly the consolidated financial position and results of operations and cash flows of TRIP and its consolidated Subsidiaries in accordance with GAAP consistently applied (except for changes with which such accountants concur).
(b)Quarterly Financial Statements. As soon as available, and in any event within 90 days after the end of each of the first three fiscal quarters in each fiscal year of TRIP, a consolidated balance sheet of TRIP and its consolidated Subsidiaries as of the end of such fiscal quarter, together with related consolidated statements of operations and retained earnings and cash flows for such fiscal quarter and then elapsed portion of such fiscal year, in each case setting forth in comparative form figures for the corresponding periods of the preceding fiscal year, all such financial statements to be in form and detail and reasonably acceptable to the Agent, and accompanied by a certificate of the chief financial officer of TRIP, to the effect that such financial statements have been prepared in accordance with GAAP and present fairly in all material respects the consolidated financial position and results of operations and cash flows of TRIP in accordance with GAAP consistently applied, subject to changes resulting from normal year-end audit adjustments and the absence of footnotes required by GAAP.
(c)Officer’s Certificate. At the time of delivery of the financial statements provided for in Sections 6.01(a) and 6.01(b) above, a certificate of a Responsible Officer of the Borrower (i) demonstrating compliance with the financial covenant contained in Section 7.12 by calculation thereof as of the end of the fiscal period covered by such financial statements and (ii) stating that no Default, Servicer Default, Servicer Event of Default, Early Amortization Event, or Event of Default exists, or if any Default, Servicer Default, Servicer Event of
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Default, Early Amortization Event or Event of Default does exist, specifying the nature and extent thereof and what action each Facility Party proposes to take with respect thereto.
(d)Borrowing Base Certificates. Each TRIP Party, not later than the second Business Day prior to each Settlement Date, shall furnish a Borrowing Base Certificate as of the end of the immediately preceding calendar month, substantially in the form of Exhibit A-6 hereto and a Flex Borrowing Base Certificate as of the end of the immediately preceding calendar month, substantially in the form of Exhibit A-7 hereto, each certified by a Responsible Officer of each TRIP Party to be true and correct as of the date thereof.
(e)Notices Regarding Collateral. Promptly upon receipt from any Manufacturer, the Servicer, any Lessee or any Lessee’s insurance carrier or broker, copies of any material notice, communication, document or agreement related to any Portfolio Railcar or other Collateral. Promptly upon a Responsible Officer of any Facility Party obtaining knowledge thereof, notice of Liens with respect to any Portfolio Railcar other than Permitted Liens.
(f)Monthly Report. Not later than the second Business Day prior to each Settlement Date a Monthly Report setting forth the information contained in such Monthly Report for the Measuring Period ending most recently prior to such date (provided that if and to the extent such information is available only from a Lessee or the Agent, the Borrower’s obligation to provide such information shall be limited to providing such information as the Facility Parties are able to obtain from the Agent and such Lessee through commercially reasonable efforts to enforce applicable provisions of the applicable Lease), including a complete list showing the Manufacturer, type, car number, date of manufacture and Mark of each Portfolio Railcar and each Lease with respect thereto, together with an executed and fully completed officer’s certificate substantially in the form of Exhibit L hereto (if expenses are to be reimbursed to the Servicer as described in such certificate). The Agent shall review the Monthly Report and, in its sole discretion, provide the Borrower with any corrections or supplemental information regarding the Loans or amounts paid into or held in the Accounts, which corrections and/or information the Borrower shall include in a revised Monthly Report. Not later than the second Business Day after receipt of any corrections or supplemental information provided by the Agent (or, absent any such corrections or supplemental information, not later than the second Business Day after such Settlement Date), the Borrower shall provide the Lenders, the Collateral Agent and the Depositary with a copy of the Monthly Report, as revised pursuant to the preceding sentence.
(g)Auditor’s Reports. Promptly upon receipt thereof, a copy of any other report or “management letter” submitted by independent accountants to any Facility Party in connection with any annual, interim or special audit of the books of such Facility Party.
(h)Notices. Prompt notice of: (i) the occurrence of any Default, Servicer Default, Servicer Event of Default, Early Amortization Event or Event of Default; (ii) the occurrence of any Lease Default or Lease Event of Default; and (iii) any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including: (A) breach or non-performance of, or any default under, a Contractual Obligation of any Facility Party; (B) any dispute, litigation, investigation or proceeding between any Facility Party and any Governmental Authority; (C) any litigation, investigation or proceeding affecting any Facility Party in which the amount involved exceeds $0, in the case of the Borrower, or $10,000,000,
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in the case of the Servicer, or in which injunctive relief or similar relief is sought, which relief, if granted, could be reasonably expected to have a Material Adverse Effect; (D) the occurrence of any ERISA Event; and (E) any material change in accounting policies or financial reporting practice by TRIP. Each notice pursuant to this Section 6.01(h) shall (i) be accompanied by a statement of a Responsible Officer of the Borrower (or the Servicer on its behalf) setting forth details of the occurrence referred to therein and stating what action each Facility Party has taken and proposes to take with respect thereto and (ii) if applicable, describe with particularity any and all provisions of this Agreement or the other Loan Documents that have been breached.
(i)Domestication in Other Jurisdiction. As soon as reasonably practicable after resolving to effect a change in the form or jurisdiction of organization of any Facility Party, written notice of such intent, and in any event not less than 30 days prior to any change in the form or jurisdiction of organization of any Facility Party, a copy of all documents and certificates intended to be filed or otherwise executed to effect such change.
(j)Agreed-Upon Procedures Report. With reasonable promptness after the receipt thereof by any Facility Party, a copy of a report satisfactory to it produced by FTI Consulting, Inc. in connection with an Agreed-Upon Procedures Audit conducted pursuant to Section 6.10(b).
(k)Other Information. With reasonable promptness upon request therefor, such other information regarding the business, properties or financial condition of any Facility Party as the Agent or any Lender may reasonably request.
(l)Beneficial Ownership. Each Facility Party will promptly notify the Agent of any change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in such certification. If any Facility Party that was not previously a “legal entity customer” under the Beneficial Ownership Regulation becomes a “legal entity customer” under the Beneficial Ownership Regulation, such Facility Party shall promptly notify the Agent of such fact and promptly deliver a Beneficial Ownership Certification.
SECTION 6.02. Preservation of Existence and Franchises; Authorizations, Approvals and Recordations. The Borrower will do all things necessary to preserve the legality, validity, binding effect or enforceability of this Agreement, the Notes or any other Lease Document or Transaction Document, or permit the making of any payment or the transfer or remittance of any funds by the Borrower under this Agreement, the Notes or any other Lease Document or Transaction Document.
SECTION 6.03. Books and Records. The Borrower will keep complete and accurate books and records of its transactions in accordance with good accounting practices on the basis of GAAP (including the establishment and maintenance of appropriate reserves) and shall keep full and accurate books relating to the Collateral, including, but not limited to, the originals of all documentation with respect thereto (other than original executed copies of the Portfolio Leases delivered to the Agent or its nominee under the Loan Documents), all credits granted thereon, all merchandise returned and all other dealings therewith, and the Borrower will make the same available to the Agent for inspection, at the Borrower’s own cost
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and expense, as provided in Section 6.10(a). Upon direction of the Agent, the Borrower shall stamp or otherwise mark or cause to be marked such books and records in such manner as the Agent may reasonably require in order to reflect the Security Interests. The Borrower will keep, or, with respect to the Portfolio Railcars and the Portfolio Leases, cause the Servicer to keep, at all times books of record and account adequate to identify the Portfolio Railcars and Portfolio Leases and to locate the Portfolio Railcars and Portfolio Leases and, to the extent that the Lessee is required to provide such information pursuant to the applicable Portfolio Lease, to disclose its use, maintenance, condition and the income generated to the Borrower through the use thereof, in which full, true and correct entries will be made.
SECTION 6.04. ERISA. The Borrower will not maintain or otherwise be or become directly liable in respect of any Pension Plan or Multiemployer Plan and, except as would not reasonably be expected to result in a Material Adverse Effect to the Borrower, no ERISA Affiliate will maintain or have any liability to any Pension Plan or Multiemployer Plan.
SECTION 6.05. Payment of Taxes and Other Debt. The Borrower will pay and discharge (i) all material Taxes, assessments and other governmental charges or levies imposed upon it, or upon its income or profits, or upon any of its properties, before they shall become delinquent, (ii) all lawful claims (including claims for labor, materials and supplies) which, if unpaid, might give rise to a Lien upon any of the Collateral and (iii) all of its other Debt as it shall become due; provided, however, that the Borrower shall be required to pay any such Tax, assessment, charge, levy, claim or Debt which is being contested or negotiated in good faith by appropriate proceedings diligently pursued and as to which adequate reserves have been established in accordance with GAAP, unless the failure to make any such payment could reasonably be expected to have a Material Adverse Effect.
SECTION 6.06. Insurance; Certain Proceeds. The Borrower will at all times maintain in full force and effect insurance in such amounts, covering such risk and liabilities and with such deductibles or self-insurance retentions as are in accordance with normal industry practice (or as are otherwise required by the Collateral Documents), and in any event in compliance with the requirements of Schedule D hereof. Notwithstanding the generality of the foregoing, (i) with respect to any Portfolio Railcar subject to a Lease, the Borrower agrees that it (or the Servicer acting on its behalf) shall enforce the provisions of the Lease against the applicable Lessee as to all required insurance pursuant to the terms thereof, (ii) with respect to any Portfolio Railcar not subject to a Net Lease, in addition to its covenants with respect to the Collateral described herein and of Schedule D hereof, the Borrower shall comply with the provisions of the Servicing Documents regarding insurance for such Portfolio Railcar, and (iii) the Borrower shall ensure that at all times insurances against physical damage of the Portfolio Railcars shall be in effect (which may be accomplished pursuant to a contingent physical damage policy) in an amount not less than the replacement cost of such Portfolio Railcars, subject to an aggregate limit of not less than $2,500,000 per occurrence; provided that such coverage may provide for deductible amounts of not more than $50,000 per occurrence (or $100,000, in the event that (i) coverage providing for a $50,000 deductible amount is not then available on commercially reasonable terms or (ii) a deductible amount of $100,000 is then customary in the railcar leasing industry with respect to such coverage). The Collateral Agent shall be named as loss payee or mortgagee, as its interest may appear, with respect to all such property and casualty policies and additional insured with respect to all such other policies (other than workers’ compensation and employee health policies, if any), and each provider of
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property damage insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Collateral Agent, (i) that the insurance carrier shall pay all proceeds otherwise payable to the Borrower under such policies jointly to the Borrower and the Collateral Agent (which agreement shall be evidenced by a “standard” or “New York” lender’s loss payable endorsement in the name of the Collateral Agent), (ii) to waive all claims for insurance premiums against the Collateral Agent and the Protected Parties, (iii) to provide coverage to the Collateral Agent for the benefit of the Protected Parties regardless of the breach by the Borrower of any warranty or representation made therein, (iv) that no such policy is subject to co-insurance, and (v) that it will give the Collateral Agent thirty days’ prior written notice (or ten days’ prior written notice for nonpayment of premiums) before any such policy or policies shall be materially altered, terminated or canceled, and that no act or default of any Facility Party or any other Person (other than nonpayment of premiums) shall affect the rights of the Collateral Agent or the Lenders under such policy or policies. The Borrower assumes all liability and responsibility in connection with the Portfolio and other property and assets acquired by it and the liability of the Borrower to pay the Obligations shall in no way be affected or diminished by reason of the fact that any such property may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to the Borrower.
(b)Any cash receipts from a Casualty or Condemnation (whether by way of Casualty Proceeds or Lessee indemnity payments or otherwise) received by either of the Borrower or the Collateral Agent shall be deposited into the Collection Account and, subject to Section 2.07(c)(iii), applied pursuant to Section 2.07(c)(i) or Section 2.07(c)(ii), as applicable (except for (i) Excepted Payments, which shall be payable to the Persons for whose benefit any such payment is made and (ii) in respect of an Event of Loss, which shall be applied in the same manner as Net Cash Proceeds).
Upon the request of the Collateral Agent at the written direction of the Agent from time to time, the Borrower will promptly and duly execute and deliver any and all such further instruments and documents as may be specified in such request which are reasonably necessary to perfect, preserve or protect the security interests created or intended to be created for the Replacement Railcars referred to herein, or to establish that the Borrower has title to such Railcars.
(c)The Borrower shall not operate any Portfolio Railcar or suffer any Portfolio Railcar to be operated in violation of any provision of any insurance policy in effect with respect to such Railcar or in any jurisdiction where all of the insurance required hereunder shall not remain in full force and effect or in violation of any law, treaty, statute, rule, directive, regulation or order of any Governmental Authority having jurisdiction over such Portfolio Railcar or in violation of any applicable certificate, license or registration relating to such Portfolio Railcar issued by any such Governmental Authority.
(d)In connection with the covenants set forth in this Section 6.06, it is understood and agreed that:
(i)none of the Collateral Agent, the Agent, the Lenders or their respective agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this Section 6.06, it being understood that (A) the Borrower shall look solely to its insurance companies or any other parties other
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than the aforesaid parties for the recovery of such loss or damage and (B) such insurance companies shall have no rights of subrogation against the Collateral Agent, the Agent, the Lenders or their agents or employees; provided, however, that if the insurance policies do not provide waiver of subrogation rights against such parties, as required above, then the Borrower hereby agrees to waive its right of recovery, if any, against the Collateral Agent, the Agent, the Lenders and their agents and employees, to the extent permitted by law;
(ii)the Borrower will permit an insurance consultant retained by the Agent, at the expense of the Borrower, to review from time to time the insurance policies maintained by or on behalf of the Borrower annually or upon the occurrence of an Event of Default; and
(iii)the Required Lenders shall have the right from time to time to require the Borrower to keep other insurance in such form and amount as the Agent or the Required Lenders may reasonably request; provided that such insurance shall be obtainable on commercially reasonable terms; and provided, further, that the designation of any form, type or amount of insurance coverage by the Agent or the Required Lenders under this Section 6.06 shall in no event be deemed a representation, warranty or advice by the Agent or the Lenders that such insurance is adequate for the purposes of the business of the Borrower or the protection of its properties.
SECTION 6.07. Operation, Use and Maintenance.
(a)Operation and Use. The Borrower will and will require each Lessee to use the Portfolio Railcars only for lawful purposes and shall use and operate and require each Lessee to use and operate the Portfolio Railcars in compliance in all material respects with Applicable Law, except for so long as the Borrower or a Lessee is contesting in good faith by appropriate proceedings diligently conducted the validity or application of such Applicable Law in any reasonable manner. The Portfolio Railcars may not be located or used in any country other than the United States, Canada or Mexico.
(b)Maintenance. The Borrower will and will require each Lessee to keep, repair and maintain the Portfolio Railcars (i) in good order and operating condition according to industry practice for Railcars of similar age and vintage, ordinary wear and tear excepted, (ii) in compliance in all material respects with Applicable Law, except for so long as the Borrower or a Lessee is contesting in good faith by appropriate proceedings diligently conducted the validity or application of such Applicable Law in any reasonable manner, (iii) suitable for use in interchange in accordance with the Interchange Rules and (iv) at least as well in all material respects as it would for other similar equipment owned or operated by the Borrower. In addition to (but without limitation of) the foregoing obligation of the Borrower,
(i)with respect to any Portfolio Railcar subject to a Net Lease, the Borrower will use reasonable commercial efforts to cause the Lessee of such Railcar to comply with the maintenance requirements set forth in such Lease, and
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(ii)with respect to any Portfolio Railcar not subject to a Net Lease, the Borrower will cause the Railcar to comply with the maintenance requirements set forth in the Servicing Agreement.
(c)Identification Numbers. The Borrower may change or permit to be changed the identifying number of any Portfolio Railcar in accordance with its or the Servicer’s normal business practices at the time applied in a nondiscriminatory manner. Concurrently with the delivery of each Monthly Report or promptly upon request of the Collateral Agent if there exists an Event of Default, the Borrower (or the Servicer on its behalf) shall deliver to the Collateral Agent a list of the identifying numbers of all Portfolio Railcars that have been changed within the period covered by such Monthly Report and prior thereto to the extent not previously disclosed by the Borrower and evidence of the filing, recording or depositing in such public offices where the Security Agreement (or memoranda or notices thereof) have been filed, recorded or deposited reflecting any changes in identifying numbers which have occurred within such period and prior thereto to the extent not previously disclosed by the Borrower as may be necessary to preserve and perfect the interest of the Collateral Agent and the Lenders in the Portfolio Railcars whose identifying numbers have changed.
(d)Insignia. Except as provided in Section 6.07(c), the Borrower will not allow the name of any Person to be placed on any Railcar as a designation that might be interpreted as a claim of ownership; provided, however, that the Borrower may permit any of the Portfolio Railcars to be lettered with the names, trademarks, initials or other insignia customarily used by the Borrower or its Affiliates (including the Marks Company), or any Lessee or its Affiliates, on railroad equipment used or leased by such Person of the same or a similar type for convenience of identification of its right to use such Portfolio Railcar under any applicable Lease, and any of the Portfolio Railcars may be lettered in an appropriate manner for convenience of identification of the interest of the Borrower or any Lessee therein.
SECTION 6.08. Replacement of Parts; Modifications and Improvements.
(a)Replacement of Parts. The Borrower, at its sole cost and expense (whether from the Expense Reserve Account, by reimbursement of expenses incurred by the Servicer, approved by the Agent and paid pursuant to Section 2.07(c) or otherwise), will as promptly as practicable replace, or cause any Lessee to replace, all Parts with respect to Portfolio Railcars that may from time to time become worn out, obsolete, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use for any reason whatsoever. In addition, in the course of maintenance, service, repair, overhaul or testing, the Borrower, or a Lessee, at its sole cost and expense, may remove any Part, whether or not worn out, obsolete, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use. All replacement Parts shall be selected and installed in accordance with the Borrower’s or the Servicer’s normal business practices at that time applied in a nondiscriminatory manner, and shall be free and clear of all Liens except Permitted Liens and shall be in good operating condition.
(b)Modifications and Improvements. The Borrower, at its expense (whether from the Modifications and Improvements Account, by reimbursement of expenses incurred by the Servicer, approved by the Agent and paid pursuant to Section 2.07(c) or otherwise), shall make or cause to be made such modifications and improvements to each Portfolio Railcar:
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(i) to the extent required of the Borrower by the terms of the applicable Lease or (ii) as may be (A) set forth as requiring present compliance in any mandatory directives adopted by any Governmental Authority or (B) required from time to time to meet the applicable standards of the Governmental Authority having jurisdiction over it or the appropriate Railcar or the standards of any applicable maintenance program, unless the validity of such standard is being contested in good faith by appropriate proceedings.
(c)Except as expressly provided in this Section 6.08, the Borrower shall not make or permit to be made any modifications and improvements to any Portfolio Railcar without the prior written consent of the Agent, which consent may be granted or withheld in the Agent’s reasonable discretion.
SECTION 6.9. Use of Proceeds. The Borrower will use the proceeds of the Loans solely for the purposes set forth in Section 5.14 and not for any purposes which would result in a violation of Applicable Law, including Anti-Money Laundering Laws, Anti-Corruption Laws, Prohibited Nations Acts or applicable Sanctions.
SECTION 6.10. Audits/Inspections/Appraisals.
(a)Audits and Inspections. Upon reasonable notice and during normal business hours, each TRIP Party will permit representatives appointed by the Agent or any Lender (at the expense of the Agent or such Lender, as applicable, except as set forth in the proviso hereto), including independent accountants, agents, employees, attorneys and appraisers, to visit, audit and inspect its property and operations, including its books, records, reports and other papers related to the Collateral or to its accounts receivable and inventory, its facilities and its other business assets, and to make photocopies or photographs thereof and to write down and record any information such representatives obtain and shall permit the Agent or any Lender or such representatives to investigate and verify the accuracy of information provided to the Agent or Lenders and to discuss all such matters with the officers and independent accountants and representatives of each TRIP Party; provided that (i) so long as no Event of Default or Servicer Event of Default or Servicer Default has occurred and is continuing, the Borrower shall pay the costs and expenses incurred in connection with one such audit or inspection a year conducted at the request of the Agent or the Required Lenders and (ii) if an Event of Default or a Servicer Event of Default or Servicer Default shall have occurred and be continuing, the Borrower shall pay the costs and expenses of any and all such inspections conducted at the request of the Agent or the Required Lenders. The Borrower will cooperate with the Agent to resolve, in a commercially-reasonable manner, all issues, if any, discovered in the course of such audit or inspection or in the course of any Agreed-Upon Procedures Audit. The Borrower will from time to time upon the reasonable request of the Agent, permit the Agent, the Collateral Agent or professionals (including investment bankers, consultants, attorneys, accountants and appraisers) retained by the Agent to conduct evaluations and appraisals of (A) the Borrower’s practices in the computation of the Borrowing Base and (B) subject to the provisions of Section 6.10(c) below, in the case of Railcars, the assets included in the Collateral.
(b)Agreed-Upon Procedures Audit. Annually, upon reasonable notice and during normal business hours, each TRIP Party will permit representatives from FTI Consulting, Inc. or such other auditing firm reasonably acceptable to the Facility Parties (at the expense of
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the Borrower) to visit, audit and inspect its property and operations and conduct an agreed-upon procedures audit, which will be limited to the scope to be agreed between the Agent and the TRIP Parties in advance thereof (each, an “Agreed-Upon Procedures Audit”); provided that, such Agreed-Upon Procedures Audit will not be counted for purposes of the limit set forth in clause (i) of Section 6.10(a) above. The TRIP Parties intend that the next such Agreed-Upon Procedures Audit will be completed on or before May 31, 2022, and on an annual basis thereafter, subject to the right of the Borrower to request an extension of up to six months, within 60 days of such date, with the consent of the Agent (not to be unreasonably withheld).
(c)Appraisals. The Borrower shall at its expense provide an Independent Appraisal with respect to all of the Portfolio Railcars
(i)on or prior to the Funding Date,
(ii)every twelve months after the Facility Closing Date, and
(iii)at any time after the occurrence and during the continuation of any Event of Default or Servicer Event of Default, following the request of the Agent acting at the reasonable request of any Lender.
The Agent also may at any time and from time to time obtain an Independent Appraisal of any Railcar (in addition to the Independent Appraisal required pursuant to this Section 6.10(c)) at its own expense. Each Independent Appraisal delivered pursuant to this Section 6.10(c) shall be in form and substance reasonably satisfactory to the Agent; provided that with respect to any Railcar, when appropriate and acceptable to the Agent, any such Independent Appraisal may be in the form of a letter from an Independent Appraiser confirming the Independent Appraisal previously delivered by such Independent Appraiser with respect to such Railcar.
SECTION 6.11. Stamp Tax. If any jurisdiction in which any Portfolio Railcar is registered, operated or located, from time to time, requires the payment of a stamp tax, fee or its equivalent in order to perfect the Collateral Agent’s security interest in such Railcar or otherwise to allow the Agent to realize upon the Collateral, the Borrower shall pay the amount of such stamp tax, fee or its equivalent in accordance with Section 2.07(c).
SECTION 6.12. Follow-On Leases. Any Portfolio Lease which was not in place as of the Funding Date (and described in the Notice of Borrowing) (a “Follow-On Lease”) (i) will be an Eligible Lease, (ii) will only be a lease of Eligible Railcars and (iii) will have satisfied the conditions precedent described in Section 4.03 hereof. If any of clause (i), (ii) or (iii) of this Section 6.12 shall not have been satisfied prior to the execution of the applicable Follow-On Lease, the Borrower (or the Servicer on its behalf) shall forward the proposed Follow-On Lease to the Agent, together with all related Lease Documents, financial and credit information regarding the proposed Lessee, for approval, which approval, in each case, shall be determined in the Agent’s sole and exclusive discretion.
SECTION 6.13. Accounts.
(a)The Borrower shall cause to be established one or more accounts with the Depositary pursuant to the Depository Agreement in the name of the Borrower. The
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Borrower shall cause the Depositary to create the Collection Account, the Depository Account, the Liquidity Reserve Account, the Expense Reserve Account, the Discretionary Account and the Modifications and Improvements Account, in each case in accordance with the terms of the Depository Agreement. The Borrower shall notify (and the Borrower hereby authorizes the Collateral Agent so to notify), in each case following the occurrence and during the continuation of a Servicer Default or an Event of Default, each Lessee and other account debtors of the Borrower in writing that each Lease and other accounts receivable of the Borrowers has been assigned to the Collateral Agent under the Loan Documents for the benefit of the Protected Parties. The Borrower also shall notify and instruct each Lessee that all payments due or to become due under each Portfolio Lease (except for Excepted Payments (which shall be payable to the Persons for whose benefit any such payment is made)) or otherwise in respect of amounts and other receivables of the Borrower are to be made directly to the Customer Payments Account (or, after the occurrence of the Customer Collections Account Administration Agreement Severance, the Collection Account).
(b)Any amounts from time to time held in the Collection Account, the Expense Reserve Account, the Modifications and Improvements Account, the Discretionary Account and the Liquidity Reserve Account may be invested in Cash Equivalents (subject to the provisions of the Depository Agreement), at the Borrower’s risk as directed in writing by the Borrower, until the application thereof in accordance with Section 2.07(c) hereof. Upon the occurrence and during the continuance of an Event of Default, the Agent may direct by written notice the Depositary to pay to the Agent the amount specified in such notice from the Account(s) specified in such notice, and the Agent shall apply such amounts received from the Depositary to the repayment of the Obligations in accordance with the applicable provisions of Section 2.07(c).
(c)Subject to the provisions of the Depository Agreement, the Agent may from time to time in its sole discretion (and, to the extent such application would have the effect of curing a Default under Section 9.01(a) hereof or if the Loans have become or been declared immediately due and payable pursuant to Section 9.02, shall) instruct the Depositary in writing to pay into the Collection Account any amounts from time to time on deposit in the Liquidity Reserve Account; provided that, so long as no Event of Default shall have occurred and then be continuing, (i) the Agent shall have consulted with the Borrower prior to giving such instruction and (ii) if and to the extent determined by the Agent and the Borrower that a reserve is required to be held in the Accounts in respect of anticipated claims by a Lessee for payment of deposit, maintenance reserves or insurance or indemnity payments, such reserve shall be retained in the Accounts.
(d)Any amounts deposited into the Collection Account pursuant to this Section 6.13 shall be applied by the Agent in accordance with Section 2.07(c).
(e)The Servicer hereby agrees to allocate all Cash Flow from the Customer Payments Account to the Collections Account in accordance with the Customer Collections Account Administration Agreement.
(f)On each Settlement Date and following the application of payments and prepayments pursuant to Section 2.07(c), the Borrower may deposit any remaining amount in the Expense Reserve Account pursuant to clause twelfth of Section 2.07(c)(i).
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(g)The amount to be maintained in the Modifications and Improvements Accounts shall be determined by the Servicer and approved by the Agent (such approval not to be unreasonably withheld or delayed) for the purposes of either (A) modifications required in connection with a Portfolio Railcar or (B) the repayment of any principal amount or interest amount that is not otherwise repaid pursuant to Section 2.07(c). Any release of funds from the Modifications and Improvements Account other than for required modifications shall be agreed upon and expressly approved by the Agent in its sole discretion for direct payment of principal or interest. On each Settlement Date and following the application of payments and prepayments pursuant to Section 2.07(c), the Borrower may deposit any remaining amount in the Modifications and Improvements Account pursuant to clause twelfth of Section 2.07(c)(i).
SECTION 6.14. Servicer.
(a)The Borrower acknowledges and agrees that, subject to the provisions of the next sentence, while any Obligation remains outstanding, TILC shall remain the Servicer. The Borrower, and the Agent further agree that, upon the occurrence and continuance of an Event of Default or a Servicer Event of Default and as otherwise provided in the Servicing Documents, the Agent (acting at the direction of the Required Lenders), without the consent of any Facility Party, shall have the right (and on the direction of the Required Lenders, the obligation) to remove the Servicer, terminate any Servicing Document(s) and/or cause a Customer Collections Account Administration Agreement Severance to occur, appoint a new Servicer that is reasonably satisfactory to both the Agent and the Required Lenders, in accordance with Section 8.04 or Section 8.06 of the Servicing Agreement, deliver the Payment Notice/Lessor Rights Notice to any and all Lessees with respect to any and all of the Portfolio Leases and enter into new Servicing Document(s) with such new Servicer.
(b)The Borrower and the Agent agree that upon the occurrence and continuance of an Event of Default, a Servicer Default, a Servicer Event of Default or any event set forth in clauses (i) through (viii) of Section 6(a) of the Customer Collections Account Administration Agreement, the Agent shall, at the direction of the Required Lenders, take all other actions necessary to appoint a successor to the Servicer in its duties thereunder in accordance with Section 6(a) thereof.
SECTION 6.15. Action after an Event of Default. Following the occurrence and during the continuance of an Event of Default, the Borrower shall, in connection with taking any action or exercising any rights or remedies under any Lease Document or Servicing Document, comply with all applicable written instruction from the Agent (it being understood that the Borrower will not be considered in breach of this Section 6.15 or any other provision of any Transaction Document solely by virtue of complying with such written instructions).
SECTION 6.16. Compliance with Separate Corporate Structure; Employees. The Borrower will comply with Section 5.24 on an ongoing basis.
SECTION 6.17. Required Disclosures. Promptly, following a request by the Agent or any Lender, the Borrower shall provide all documentation and other information the Agent or any Lender reasonably requests about the Borrower or any Affiliate thereof in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation.
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SECTION 6.18. Change of Name. Without limitation of any other requirements of the Loan Documents, the Servicer shall not change its legal name or any name under which it conducts business without giving not less than thirty (30) days’ prior written notice to the Agent and the Committed Lenders, provided that during the continuance of any Default or Event of Default, neither the Borrower nor the Servicer shall change their legal name or any name under which they conduct business, without the prior written consent of the Required Lenders. Notwithstanding anything to the contrary contained herein or in the other Transaction Documents, TILC may, upon providing to the Agent (i) not less than thirty (30) days’ prior written notice, (ii) a certificate as to the good standing of TILC from the Secretary of State of Delaware, and (iii) a favorable written opinion from counsel to TILC addressed to the Agent and each Lender as to such customary matters as the Agent may reasonably request, convert from a corporation to a limited liability company and, upon such a conversion, all of the representations, warranties and covenants of TILC contained in the Transaction Documents shall be deemed to be amended to reflect TILC’s status as a limited liability company and shall be deemed to have been made as of the date of such conversion except to the extent they expressly relate to an earlier date.
ARTICLE VII.

NEGATIVE COVENANTS
The Borrower agrees that so long as any Lender has any Commitment hereunder or any Obligations or other amount payable hereunder or under any Note or other Loan Document remains unpaid:
SECTION 7.01. Limitation on Debt. The Borrower will not incur, create, assume or permit to exist any Debt, including, without limitation, Derivatives Obligations except:
(i)Debt of the Borrower under this Agreement and the other Loan Documents; and
(ii)Derivatives Obligations of the Borrower under Derivatives Agreements to the extent entered into after the Facility Closing Date with the express written consent of the Agent to manage interest rate risks and not for speculative purposes; provided, however, that, for the avoidance of doubt, (A) no such Derivatives Agreement shall require the posting of collateral and (B) the Borrower shall not post any collateral in respect of any Derivatives Agreement, in each case other than collateral which is subject or which is purported to be subject to the Liens granted by the Collateral Documents.
SECTION 7.02. Restriction on Liens. The Borrower will not create, incur, assume or permit to exist any Lien on any property or assets now owned or hereafter acquired by it or on any income or rights in respect of any thereof, except Permitted Liens.
SECTION 7.03. Nature of Business. The Borrower will not alter the character or conduct of the business conducted by it as of the Facility Closing Date and activities directly related thereto.
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SECTION 7.04. Consolidation, Merger and Dissolution. The Borrower will not enter into any transaction of merger or consolidation or liquidate, wind up or dissolve itself or its affairs (or suffer any liquidations or dissolutions).
SECTION 7.05. Asset Dispositions. The Borrower will not make or permit or consent to any Asset Disposition; provided that (i) the Borrower may make or permit or consent to any Asset Disposition by way of Event of Loss or Condemnation, so long as the Net Cash Proceeds of such Asset Disposition shall have or upon receipt shall be delivered to the Depositary in accordance with Section 6.06 for application in accordance with Section 2.07, (ii) the Borrower may make or permit or consent to any Asset Disposition to a Lessee pursuant to a purchase option in the applicable Lease if (A) the consideration therefore is cash or Cash Equivalents; (B) no Borrowing Base Deficiency shall result or shall be increased as a result of such Asset Disposition and (C) the Net Cash Proceeds of such Asset Disposition shall have or simultaneously therewith be delivered to the Depositary for deposit to the Collection Account for application in accordance with Section 2.07 and (iii) with the prior written consent of the Agent, to be granted or withheld in the Agent’s sole discretion, the Borrower may make or permit or consent to any other Asset Disposition (including in connection with a Securitization) if (A) the consideration therefor is cash or Cash Equivalents; (B) no Borrowing Base Deficiency shall exist immediately before or immediately after giving effect to such transaction, (C) no Default or Event of Default shall have occurred and be continuing immediately before or immediately after giving effect to such transaction and (D) the Net Cash Proceeds of such Asset Disposition equal to the amount required to be paid into the Collection Account pursuant to Section 2.07(b)(iv) or Section 2.07(b)(v), as applicable, shall have or simultaneously therewith be delivered to the Depositary for deposit to the Collection Account; provided further that any Net Cash Proceeds of such Asset Disposition (whether as a consequence of a Securitization, Casualty, Railcar sale or other similar event) will be applied in accordance with Section 2.07(c), (x) except that no such Net Cash Proceeds shall be (A) applied to the payment of Railroad Mileage Credits, (B) applied to the payment of Reimbursement Amounts, Servicer’s Fees or Servicer Advances or (C) deposited in the Expense Reserve Account or the Modifications and Improvements Account. The minimum principal amount to be prepaid as a result of any Asset Disposition shall be the greater of (i) 105% of the allocable balance of the Loan related to the Railcars subject to such Asset Disposition, and (ii) the Dollar amount that would be required to cure any Borrowing Base Deficiency existing at the time of such Asset Disposition. Upon consummation of an Asset Disposition permitted under and application of the proceeds thereof in accordance with this Section 7.05, the Collateral Agent shall (to the extent applicable) deliver to the Borrower, upon the Borrower’s request and at the Borrower’s expense, such documentation as is reasonably necessary to evidence the release of the Collateral Agent’s security interests, if any, in the assets being disposed of, including amendments or terminations of Uniform Commercial Code Financing Statements, if any. Following consummation of an Asset Disposition, if any Loans remain unpaid, a minimum of $100,000,000 of the Loans shall be outstanding.
SECTION 7.06. Investments. The Borrower will not hold, make or acquire, any Investment in any Person, except that:
(i)the Borrower may invest in cash and Cash Equivalents pursuant to this Agreement and the Depository Agreement;
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(ii)the Borrower may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(iii)the Borrower may acquire and own Investments (including Debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business; and
(iv)the Borrower may purchase Eligible Railcars, Eligible Leases and other related inventory, machinery and equipment in the ordinary course of business.
SECTION 7.7.Restricted Payments, etc. The Borrower will not declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Disqualified Stock) of the Borrower), except that, so long as no Servicer Default, Early Amortization Event, Default or Event of Default has occurred and is continuing, the Borrower may make Restricted Payments from time to time to the extent cash is made available to the Borrower pursuant to Section 2.07(c).
SECTION 7.8.Transactions with Affiliates. The Borrower will not engage in any transaction or series of transactions with (i) any officer, director, holder of any Equity Interest in or other Affiliate of the Borrower or (ii) any Affiliate of any such officer, director, holder or Affiliate, other than (A) the payment of the Servicer’s Fees as provided in Section 2.07(c), (B) Servicer Advances pursuant to the Servicing Agreement and Section 2.07(c), (C) transfers of assets permitted by Section 7.05, (D) as otherwise expressly provided for or contemplated in any Loan Document and (E) so long as no Default or Event of Default has occurred and is continuing, other transactions (including the purchase of Railcars) which are engaged in by the Borrower in the ordinary course of its business on terms and conditions as favorable to it as would be obtainable by it in a comparable arm’s-length transaction with an independent, unrelated third party.
SECTION 7.9. Fiscal Year; Organization and Other Documents. The Borrower will not (i) change its fiscal year, (ii) except with the consent of the Agent and the Required Lenders, enter into any amendment, modification or waiver to its Organization Documents, (iii) except with the consent of the Agent, amend, modify, extend, renew, cancel or terminate the Asset Contribution and Purchase Agreement, any Bill of Sale, any other Sale Document, any Servicing Document, any Lease Document or any other Assigned Agreement (as defined in the Security Agreement), waive any default under or breach of any such agreement, compromise or settle any material dispute, claim, suit or legal proceeding relating to any such agreement, sell or assign any such agreement or interest therein, consent to or permit or accept any prepayment of amounts to become due under or in connection with any such agreement, except as expressly provided therein, or take any other action in connection with any such agreement which would impair the value of the interests or rights of the Borrower thereunder or which would impair the interests or rights of the Agent under this Agreement, except that, unless the Agent shall have notified the Borrower upon the occurrence of an Event of Default that this exception is no longer available or if the same would otherwise be adverse in any material respect to the interests of the Agent and the Lenders, the Borrower may (or may permit the Servicer to) modify, make adjustments with respect to, extend or renew any
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Assigned Agreements in the ordinary course of business, and except that Sections 7.13 and 7.14 shall govern the right of the Borrower to waive or permit the waiver of a Lease Default or Lease Event of Default or (iv) enter into any amendment, modification or waiver to any Servicing Document or the Asset Contribution and Purchase Agreement, in each case as in effect on the Facility Closing Date which is in any manner adverse to the interests of the Agent, the Collateral Agent or the Lenders. The Borrower will promptly provide the Lenders with copies of all amendments to the foregoing documents and instruments as in effect as of the Facility Closing Date.
SECTION 7.10. Additional Negative Pledges. The Borrower will not enter into, assume or become subject to any agreement prohibiting or otherwise restricting the creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, or requiring the grant of any security for an obligation if security is given for some other obligation, except pursuant to this Agreement and the other Loan Documents.
SECTION 7.11. Impairment of Security Interests. The Borrower will not take or omit to take any action which action or omission might or would materially impair the security interests in favor of the Collateral Agent with respect to the Collateral.
SECTION 7.12. [Reserved].
SECTION 7.13. No Amendments to the Lease Documents. Without prior written consent of the Agent or as expressly provided by the terms of this Agreement, the Borrower will not amend, modify, consent to or permit any change in the terms or otherwise alter or grant any consent or approval under any Lease Document in a manner which would materially and adversely affect the Agent, the Collateral Agent or Lenders.
SECTION 7.14. Lease Default. Without the prior written consent of the Agent, which consent may be granted or withheld at the Agent’s sole discretion, Borrower will not waive (or permit the waiver of) a Lease Default or Lease Event of Default under a Lease; provided, however, that unless a Default arising from the failure to make a payment when due hereunder or an Event of Default has occurred and is continuing, the Borrower may elect, in its reasonable discretion and upon written notice to the Agent, to give such waiver (or permit such waiver), so long as such waiver is limited to the particular facts giving rise to such Lease Default or Lease Event of Default and does not prejudice the Borrower’s (or Collateral Agent’s, by assignment) rights under the relevant Lease to exercise remedies with respect to any other or future Lease Defaults or Lease Events of Default; provided, further, that any such waiver without the prior written consent of the Agent shall not (i) cause a Lease which otherwise would cease or fail to be an Eligible Lease to be an Eligible Lease or (ii) affect the determination of the Excluded Assets Amount.
SECTION 7.15. Consolidation with Any Other Person. The Borrower will not operate in a manner that would result in substantive consolidation of the “estate” (as defined in Section 541(c) of the Bankruptcy Code) of the Borrower with the “estate” of any other Person, and in such connection the Borrower shall observe all corporate formalities, and maintain records separately and independently from those of any other Person.
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SECTION 7.16.Limitations on Employees, Subsidiaries. The Borrower will not employ or maintain any employees other than as required by Applicable Law; provided that officers and directors shall not be deemed to be employees for purposes of this Section 7.16.
SECTION 7.17. Independence of Covenants. All covenants contained herein shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that such action or condition would be permitted by an exception to, or otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default if such action is taken or condition exists.
SECTION 7.18. Funds to Repay Loans. The Borrower will not permit any part of the funds used in repayment of the Loan to be derived from a prohibited transaction with a Sanctioned Person.
SECTION 7.19. Sanctioned Person. The Borrower shall not, nor shall it permit any Subsidiary to, become a Sanctioned Person nor shall the Borrower permit any Person that owns or Controls the Borrower to become a Sanctioned Person.
SECTION 7.20. Tax Status. The Borrower will not elect to be treated as a corporation or enter into any transaction which could reasonably be expected to result in it becoming taxable as a corporation, for U.S. federal income tax purposes.
ARTICLE VIII.

OTHER COVENANTS
SECTION 8.01. Quiet Enjoyment. The Agent, the Collateral Agent and each Lender hereby covenant and agree that so long as no Event of Default or Lease Event of Default has occurred and is continuing, it shall not take or cause to be taken any action contrary to any Lessee’s or any permitted sublessee’s right to quiet enjoyment of, and the continuing possession, use and operation of, the relevant Portfolio Railcar during the term of such Lease and in accordance with the terms of such Lease. To the extent reasonably requested by a Lessee in connection with the Funding Date, the Agent, the Collateral Agent and each Lender shall confirm this Section 8.01.
ARTICLE IX.

DEFAULTS
SECTION 9.01. Events of Default. An Event of Default shall exist upon the occurrence of any of the following specified events or conditions (each an “Event of Default”):
(a)Payment.
(i)(A)     On any date on which any interest is payable hereunder, whether by scheduled payment, acceleration or otherwise, all accrued and unpaid interest as of such date (other than Aggregated Default Interest and interest accrued based on the Step-Up Margin) shall not be paid in full; or
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(B)     On any date on which any principal of the Loans is due, whether by scheduled maturity, required prepayment, acceleration or otherwise (other than payments of principal required under Section 2.07(b)(iii) to cause a Collateral Deficiency not to exist or under 2.07(c)(i) or to cause a Borrowing Base Deficiency not to exist) such principal shall not be paid in full;
in the case of each of clause (i)(A) or (i)(B) hereof, without regard to whether sufficient Cash Flow or Net Cash Proceeds are available for such payment on such date; or
(ii)any default (not otherwise described in clauses (i)(A) or (i)(B) of this Section 9.01(a) or in Section 9.01(b) below) shall occur, which default shall continue for 15 days after notice thereof has been given to the Borrower by the Agent, in the payment when due of any fees or other amounts owing hereunder, under any of the Loan Documents or in connection herewith or therewith.
(b)Out of Formula. A Collateral Deficiency shall exist on any three consecutive Settlement Dates (after giving effect to all Loans made pursuant to Section 2.01 and all amounts applied to repay the Loans pursuant to Section 2.07(c) on each such Settlement Date).
(c)Representations. Any representation, warranty or statement made or deemed to be made by any Facility Party herein, in any of the other Loan Documents or in any Servicing Document, or in any statement or certificate delivered or required to be delivered pursuant hereto or thereto shall prove untrue in any material respect on the date as of which it was made or deemed to have been made; provided, that with respect to any of the foregoing as to which the TRIP Purchase Obligation remedy is available under Section 4.11 of the Asset Contribution and Purchase Agreement, no Event of Default shall exist as a result of such event unless and until there has been a failure by TRIP to fulfill the TRIP Purchase Obligation described in said Section 4.11.
(d)Covenants. The Borrower (or, to the extent applicable, TRIP and TILC) shall:
(i)default in the due performance or observance by it of any term, covenant or agreement contained in Sections 6.01(a), 6.01(b), 6.02 (with respect only to the Borrower’s existence), 6.06, 6.09, 6.12, 6.13, 6.14, 6.15 or Article VII of this Agreement;
(ii)default in the due performance or observance by it of any term, covenant or agreement contained in Section 6.01(d) or 6.01(f) and such default shall continue unremedied for a period of 2 Business Days; or
(iii)default in the due performance or observance by it of any term, covenant or agreement contained in Article VI (other than those referred to in subsections (a), (b), (c), (d)(i) or (d)(ii) of this Section 9.01) and such default shall continue unremedied for a period of 15 days after the earlier of an executive officer of any Facility Party becoming aware of such default or notice thereof given by the Agent; or
(iv)default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in subsections (a), (b), (c) or (d)(i), (d)(ii),
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(d)(iii), or (l) of this Section 9.01) contained in this Agreement or in any other Transaction Document and such default shall continue unremedied for a period of 30 days after the earlier of an executive officer of a Facility Party becoming aware of such default or notice thereof given by the Agent.
(e)Loan Documents. Except pursuant to the terms thereof, any Loan Document shall (i) fail to be in full force and effect or any Facility Party shall so assert or (ii) fail to give the Collateral Agent and/or the Lenders the security interests, liens, rights, powers and privileges purported to be created thereby.
(f)Cross-Default.
(i)[Reserved].
(ii)There occurs under any Derivatives Agreement an Early Termination Date (as defined in such Derivatives Agreement) resulting from (A) any event of default under such Derivatives Agreement as to which the Borrower is the Defaulting Party (as defined in such Derivatives Agreement) or (B) any Termination Event (as so defined) as to which the Borrower is an Affected Party (as so defined), and, in either event, the Derivatives Termination Value owed by the Borrower as a result thereof is greater than $10,000,000.
(g)Insolvency Events. (i) Any Facility Party shall 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 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, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing or (ii) an involuntary case or other proceeding shall be commenced against any Facility Party 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, or any order for relief shall be entered against any Facility Party under the federal bankruptcy laws as now or hereafter in effect.
(h)Judgments. One or more judgments, orders, decrees or arbitration awards is entered against any Facility Party involving in the aggregate a liability (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), as to any single or related series of transactions, incidents or conditions, of $1,000,000 (in the case of the Borrower) or $250,000,000 (in the case of the Servicer) or more, and the same shall remain undischarged, unvacated and unstayed pending appeal for a period of 30 days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Servicer or the Borrower to enforce any such judgment or Borrower shall enter into any agreement to
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settle or compromise any pending or threatened litigation, as to any single or related series of claims, involving payment of $1,000,000 or more by the Borrower, or any non-monetary judgment, order or decree is entered against any Facility Party which has or would reasonably be expected to have a Material Adverse Effect, and there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
(i)ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $0, in the case of the Borrower, or $10,000,000, in the case of any other ERISA Affiliate.
(j)Impairment of Collateral. Any security interest purported to be created by any Collateral Document shall cease to be, or shall be asserted by any Facility Party not to be, a valid, perfected, first-priority (except as otherwise expressly provided in such Collateral Document) security interest in the securities, assets or properties covered thereby.
(k)Ownership. There shall occur a Change of Control.
(l)Servicer Event of Default; No Back-up Servicer. A Servicer Event of Default shall have occurred or a Back-up Servicer shall be required to be appointed under Section 8.06 of the Servicing Agreement and such appointment shall not be made within the time period specified in such Section 8.06 or at any time neither the Servicer or a Back-up Servicer are appointed.
SECTION 9.02. Acceleration; Remedies. Upon the occurrence of an Event of Default, and at any time thereafter unless and until such Event of Default has been waived in writing by the Required Lenders (or all of the Lenders as may be required pursuant to Section 11.03), the Collateral Agent at the written direction of the Agent or the Required Lenders, or the Agent upon the request and direction of the Required Lenders, as applicable, shall by written notice to the Borrower take any or all of the following actions without prejudice to the rights of the Collateral Agent, the Agent or any Lender to enforce its claims against any of the Facility Parties except as otherwise specifically provided for herein:
(a)Termination of Commitments. Declare the Commitments terminated whereupon the Commitments shall be immediately terminated.
(b)Acceleration of Loans. Declare the unpaid principal of and any accrued interest in respect of all Loans and any and all other indebtedness or obligations of any and every kind owing by the Borrower to any of the Lenders hereunder to be due whereupon the same shall be immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
(c)Enforcement of Rights. Enforce any and all rights and interests created and existing under the Loan Documents, including, without limitation, directing the Collateral
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Agent to enforce all rights and remedies existing under the Collateral Documents (including, without limitation, the seizure and liquidation of any Collateral) and all rights of set-off.
(d)Replacement of TILC as Servicer. Remove TILC as Servicer and appoint a Back-up Servicer (as such term is defined in the Servicing Agreement) in accordance with the terms of Section 8.06 of the Servicing Agreement.
(e)Payment Notice/Lessor Rights Notice. Deliver the Payment Notice/Lessor Rights Notice to the applicable Lessees with respect to any and all of the Portfolio Leases.
(f)Customer Collections Account Administration Agreement Severance. Within three (3) Business Days after receiving direction from the Required Lenders, each of the Agent and the Borrower (acting at the direction of the Agent) shall sever itself as a “Beneficiary” under the Customer Collections Account Administration Agreement (the “Customer Collections Account Administration Agreement Severance”) in accordance with Section 11(c) thereof and deliver the Payment Notice/Lessor Rights Notice to any and all Lessees with respect to any and all of the Portfolio Leases.
Notwithstanding the foregoing, if an Event of Default specified in Section 9.01(g) shall occur, then the Commitments shall automatically terminate and all Loans, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to the Lenders hereunder and under the other Loan Documents shall immediately become due and payable without the giving of any notice or other action by the Collateral Agent, the Agent or the Lenders, which notice or other action is expressly waived by the Borrower.
Notwithstanding the fact that enforcement powers reside primarily with the Collateral Agent and the Agent, each Lender has, to the extent permitted by law, a separate right of payment and shall be considered a separate “creditor” holding a separate “claim” within the meaning of Section 101(5) of the Bankruptcy Code or any other insolvency statute.
In case any one or more of the covenants and/or agreements set forth in this Agreement or any other Loan Document shall have been breached by any Facility Party, then the Collateral Agent and the Agent may proceed to protect and enforce the Lenders’ rights either by suit in equity and/or by action at law, including an action for damages as a result of any such breach and/or an action for specific performance of any such covenant or agreement contained in this Agreement or such other Loan Document. Without limitation of the foregoing, the Borrower agrees that failure to comply with any of the covenants contained herein may cause irreparable harm and that specific performance shall be available as a remedy in the event of any breach thereof. Each of the Agent and the Collateral Agent acting pursuant to this paragraph shall be indemnified by the Borrower against all liability, loss or damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses) in accordance with Section 11.05.
In the event a required payment is received in the Collection Account in connection with a TRIP Purchase Obligation, then the Collateral Agent agrees to release to the Borrower, free and clear of the lien of the Security Agreement, the relevant Lease(s) and Railcar(s) the subject of such payment in connection with a TRIP Purchase Obligation, to enable the
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Borrower to comply with its obligation to convey such assets to TRIP as described in Section 4.11 of the Asset Purchase and Contribution Agreement.
ARTICLE X.

AGENCY PROVISIONS
SECTION 10.01. Appointment; Authorization.
(a)Appointment. Each Lender hereby designates and appoints Credit Suisse AG, New York Branch, as Agent of such Lender to act as specified herein and in the other Loan Documents, and each such Lender hereby authorizes the Agent, as the agent for such Lender, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated by the terms hereof and of the other Loan Documents, together with such other powers as are reasonably incidental thereto, including but not limited to the appointing of the Collateral Agent under the Security Agreement. Notwithstanding any provision to the contrary elsewhere herein and in the other Loan Documents, the Agent shall not have any duties or responsibilities, except those expressly set forth herein and therein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any of the other Loan Documents, or shall otherwise exist against the Agent. In performing its functions and duties under this Agreement and the other Loan Documents, the Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation or relationship of agency or trust with or for any Facility Party. Without limiting the generality of the foregoing two sentences, the use of the term “agent” herein and in the other Loan Documents with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The provisions of this Article X (other than Section 10.09) are solely for the benefit of the Agent and the Lenders and none of the Facility Parties nor the Collateral Agent shall have any rights as a third party beneficiary of the provisions hereof (other than Section 10.09).
(b)[Reserved].
(c)Collateral Documents. Without limiting the generality of clause (a) of this Section 10.01, each Lender hereby further authorizes the Agent to appoint U.S. Bank National Association as Collateral Agent and Depositary to enter into any Collateral Document as secured party on behalf of and for the benefit of such Lender or otherwise and to require the delivery of any Collateral Document which the Agent determines is necessary or advisable to protect or perfect the interests of the Protected Parties in any Collateral and agrees to be bound by the terms of each of the Collateral Documents. Anything contained in any of the Loan Documents to the contrary notwithstanding, but subject to Section 11.08, each Lender agrees that no Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or Loan Document, it being understood and agreed that all powers, rights and remedies under the Collateral Documents may be exercised solely by the Agent (or its designee, including the Collateral Agent and the Depositary) for the benefit of
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Protected Parties in accordance with the terms thereof. Each Lender hereby authorizes the Agent (or, at the Agent’s discretion, its designee, including the Collateral Agent and the Depositary) (i) to release Collateral as permitted or required under this Agreement or the Collateral Documents or by Applicable Laws, and agrees that a certificate or other instrument executed by the Agent or the Collateral Agent evidencing such release of Collateral shall be conclusive evidence of such release as to any third party, and (ii) except as otherwise expressly provided in Section 11.03 hereof, to enter into any amendments or waivers of the Collateral Documents which the Agent determines are necessary or advisable, including, without limitation, those Collateral Documents the form of which are exhibits to this Agreement
SECTION 10.2. Delegation of Duties. The Agent and the Collateral Agent may execute any of their respective duties hereunder or under the other Loan Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. Neither the Agent nor the Collateral Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it in the absence of gross negligence or willful misconduct.
SECTION 10.3. Exculpatory Provisions.
(a)    General. Neither the Agent, the Collateral Agent, the Depositary nor any of their respective directors, officers, employees or agents shall be (i) liable for any action lawfully taken or omitted to be taken by any of them under or in connection herewith or in connection with any of the other Loan Documents or the transactions contemplated hereby or thereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein) or (ii) responsible in any manner to any of the Lenders or participants for any recitals, statements, representations or warranties made by any of the Facility Parties contained herein or in any of the other Loan Documents or in any certificate, report, document, financial statement or other written or oral statement referred to or provided for in, or received by the Agent, the Collateral Agent or the Depositary under or in connection herewith or in connection with the other Loan Documents, or enforceability or sufficiency therefor of any of the other Loan Documents, or for any failure of any Facility Party to perform its obligations hereunder or thereunder or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the existence or possible existence of any Default or Event of Default or to inspect the properties, books or records of the Facility Parties. Neither the Collateral Agent nor the Depositary shall have any liability or obligation with respect to any determination by the Agent, the Borrower or the Lenders that a Benchmark Transition Event or an Early Opt-in Election, as applicable, has occurred or the selection of any replacement index or Benchmark Replacement, or the effectiveness of any Benchmark Replacement Conforming Changes or any modification of the
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definition of “Interest Period”, or the removal or reinstatement of any tenor of a Benchmark, or the commencement or conclusion of any Benchmark Unavailability Period.
(b)    Advances. Under no circumstances shall the Collateral Agent or the Depositary have any responsibility, duty or obligation to advance their own funds.
(c)     Liability of Collateral Agent and Depositary. In no event shall the Collateral Agent or the Depositary be liable for failure to perform its duties hereunder or under the Collateral Documents if such failure is a direct or proximate result of another party’s failure to perform its obligations hereunder or under the Collateral Documents
SECTION 10.4. Reliance on Communications. Each of the Agent, the Collateral Agent and the Depositary shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex, teletype or e-mail message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to any of the Facility Parties, independent accountants and other experts selected by the Agent in the absence of gross negligence or willful misconduct). The Agent may deem and treat each Lender as the owner of its interests hereunder for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Agent in accordance with Section 11.06(b). Each of the Collateral Agent, the Depositary and the Agent shall be fully justified in failing or refusing to take any action under this Agreement or under any of the other Loan Documents unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each of the Agent, the Collateral Agent and the Depositary shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under any of the other Loan Documents in accordance with a request of the Required Lenders (or to the extent specifically provided in Section 11.03, all the Lenders) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders (including their successors and assigns). Where this Agreement expressly permits or prohibits an action unless the Required Lenders (or to the extent specifically provided in Section 11.03, all the Lenders) otherwise determine, each of the Agent and the Collateral Agent shall, and in all other instances the Agent and the Collateral Agent may, but shall not be required to, initiate any solicitation for the consent or vote of the Lenders. The Collateral Agent and the Depositary shall not be bound to make any independent investigation into the facts or matters stated in any such note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex, teletype or e-mail message, statement, order or other document or conversation; provided, however, that if the form thereof is specifically prescribed by the terms of this Agreement, the Collateral Agent or the Depositary, as applicable, shall examine the same to determine whether it substantially conforms on its face to such requirements hereof. Neither the Collateral Agent nor the Depositary shall be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by a Responsible Officer of the Collateral Agent or the Depositary or unless (and then only to the extent received) in writing by the Collateral Agent at its address below and specifically referencing this Agreement.
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SECTION 10.5. Notice of Default. Neither the Agent, the Collateral Agent nor the Depositary shall be deemed to have knowledge or notice of the occurrence of any Default, Servicer Event of Default or Event of Default, except, in the case of the Agent, with respect to defaults in the payment of principal, interest and fees required to be paid to the Agent for the accounts of the Lenders, unless the Agent or a Responsible Officer of the Collateral Agent has received written notice from a Lender, the Servicer or the Borrower referring to this Agreement or the Servicing Agreement, as applicable, describing such Default, the Servicer Event of Default or Event of Default and stating that such notice is a “notice of default”. If the Agent receives such a notice, the Agent shall give prompt notice thereof to the Lenders and the Collateral Agent. Each of the Agent and the Collateral Agent shall take such action with respect to such Default, Servicer Event of Default or Event of Default as shall be reasonably directed in writing by the Required Lenders; provided, however, that unless and until the Agent or the Collateral Agent, as the case may be, has received any such direction, the Agent or the Collateral Agent, as the case may be, may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default, Servicer Event of Default or Event of Default or it shall deem advisable or in the best interest of the Lenders.
SECTION 10.6. Credit Decision; Disclosure of Information by the Agent or the Collateral Agent. Each Lender expressly acknowledges that neither the Agent nor the Collateral Agent has made any representations or warranties to it and that no act by the Agent or the Collateral Agent hereinafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Facility Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Agent or the Collateral Agent to any Lender as to any matter, including whether the Agent or the Collateral Agent has disclosed material information in its possession. Each Lender represents to the Agent and Collateral Agent that it has, independently and without reliance upon the Agent, the Collateral Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of an investigation into the business, assets, operations, property, financial and other condition, prospects and creditworthiness of the Facility Parties, and all requirements of Applicable Law, and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Agent, the Collateral Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of each Facility Party. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Agent or the Collateral Agent hereunder, neither the Agent nor the Collateral Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of any Facility Party or their respective Affiliates which may come into the possession of the Agent or the Collateral Agent, as the case may be.
SECTION 10.7. Indemnification. Whether or not the transactions contemplated hereby are consummated, the Committed Lenders agree, severally but not jointly and subject to the provisions of Section 11.06(h), to indemnify the Agent and the Collateral Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do
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so), ratably according to their respective Commitments (or if the Commitments have expired or been terminated, in accordance with the respective principal amounts of outstanding Loans of the Lenders), from and against any and all Indemnified Liabilities which may at any time (including without limitation at any time following payment in full of the Obligations) be imposed on, incurred by or asserted against the Agent or the Collateral Agent in each of their respective capacities as such in any way relating to or arising out of this Agreement or the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent or Collateral Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment to the Agent or Collateral Agent of any portion of such Indemnified Liabilities resulting from such Person’s gross negligence or willful misconduct; provided, however, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. If any indemnity furnished to the Agent or Collateral Agent for any purpose shall, in the opinion of the Agent or Collateral Agent, as the case may be, be insufficient or become impaired, each of the Agent or Collateral Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. Without limitation of the foregoing, each Lender shall reimburse each of the Agent and Collateral Agent upon demand for its ratable share of any costs or outofpocket expenses (including fees and disbursements of counsel) incurred by each of the Agent and Collateral Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Agent or Collateral Agent is not reimbursed for such expenses by or on behalf of the Borrower. The agreements in this Section shall survive the payment of the Obligations and all other obligations and amounts payable hereunder and under the other Loan Documents.
SECTION 10.8. Agent and Collateral Agent in Their Individual Capacities. The Agent, the Collateral Agent and their respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in, and generally engage in any kind of banking, trust, financial advisory, underwriting and other business with either Facility Party as though the Agent or the Collateral Agent were not the Agent or the Collateral Agent hereunder or under another Loan Document. The Lenders acknowledge that, pursuant to any such activities, the Agent or its Affiliates may receive information regarding any Facility Party or its Affiliates (including information that may be subject to confidentiality obligations in favor of such Facility Party or such Affiliate) and acknowledge that neither the Agent nor the Collateral Agent shall be under any obligation to provide such information to them. With respect to the Loans made by and all obligations owing to it, each of the Agent and the Collateral Agent shall have the same rights and powers under this Agreement as any Lender and may exercise the same as though it was not the Agent or the Collateral Agent, and the terms “Lender” and “Lenders” shall include the Agent or the Collateral Agent, as the case may be, in their respective individual capacities.
SECTION 10.9. Successor Agents. The Agent may, at any time, resign upon 30 days’ written notice to the Lenders. If the Agent resigns under a Loan Document, the Required Lenders shall appoint from among the Lenders a successor Agent, which successor Agent, if other than a Committed Lender, shall be consented to by the Borrower at all times other than
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during the existence of an Event of Default (which consent of the Borrower shall not be unreasonably withheld or delayed). If no successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment prior to the effective date of the resignation of the resigning Agent, then the resigning Agent shall have the right, after consulting with the Lenders and the Borrower, to appoint a successor Agent; provided such successor Agent is a Lender hereunder or a commercial bank organized under the laws of the United States and has a combined capital and surplus of at least $500,000,000. If no successor Agent is appointed prior to the effective date of the resignation of the resigning Agent, the resigning Agent may appoint, after consulting with the Lenders and the Borrower, a successor Agent from among the Lenders. Upon the acceptance of any appointment as an Agent hereunder by a successor, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations as an Agent, as appropriate, under this Agreement and the other Loan Documents and the provisions of this Section 10.09 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Agent under this Agreement. If no successor Agent has accepted appointment as Agent within 60 days after the retiring Agent’s giving notice of resignation, the retiring Agent’s resignation shall nevertheless become effective and the Lenders shall perform all duties of the Agent hereunder until such time, if any, as the Required Lenders appoint a successor Agent as provided for above.
SECTION 10.10. Request for Documents. Each of the Agent and the Collateral Agent shall from time to time upon reasonable written request therefor furnish each Lender with copies of Funding Packages, Railcar Documentation, Lease Documents and/or Loan Documents (to the extent such Funding Packages, Railcar Documentation, Lease Documents and/or Loan Documents are provided by the Borrower or other third parties, in the form and to the extent provided to the Agent or the Collateral Agent by the Borrower or such third parties).
ARTICLE XI.

MISCELLANEOUS
SECTION 11.01. Notices and Other Communications.
(a)General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile transmission) and mailed, faxed or delivered, to the address, facsimile number or electronic mail address specified for notices as set forth on Schedule E or at such other address as shall be designated by such party in a notice to the Borrower and the Agent. All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the intended recipient and (ii) (A) if delivered by hand or by courier, when signed for by the intended recipient; (B) if delivered by mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail, when sent and confirmed by a copy sent by the methods described in (A), (B) or (C) above; provided, however, that notices and other communications to the Agent pursuant to Article II shall not be effective until actually received by such Person. Any notice or other communication permitted to be given, made or confirmed by telephone hereunder shall be given, made or confirmed by
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means of a telephone call to the intended recipient at the number specified on Schedule E, it being understood and agreed that a voicemail message shall in no event be effective as a notice, communication or confirmation hereunder.
(b)Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures shall, subject to requirements of Applicable Law, have the same force and effect as manually-signed originals and shall be binding on all Facility Parties, the Agent and the Lenders. The Agent may also require that any such documents and signatures be confirmed by a manually-signed original thereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.
(c)[Reserved].
(d)Reliance by Agent, Collateral Agent, Depositary and Lenders. The Agent, the Collateral Agent, the Depositary and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Agent, Collateral Agent, the Depositary and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.
SECTION 11.02. No Waiver; Cumulative Remedies. No failure or delay on the part of the Agent, Collateral Agent or any Lender in exercising any right, power or privilege hereunder or under any other Loan Document and no course of dealing between the Agent, Collateral Agent or any Lender and any of the Facility Parties shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights and remedies provided herein are cumulative and not exclusive of any rights or remedies which the Agent, Collateral Agent or any Lender would otherwise have. No notice to or demand on any Facility Party in any case shall entitle the Facility Parties to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Agent, Collateral Agent or the Lenders to any other or further action in any circumstances without notice or demand.
SECTION 11.03. Amendments, Waivers and Consents. None of this Agreement any other Loan Document or any of the terms hereof or thereof may be amended, changed, waived, discharged or terminated except, in the case of this Agreement or any other Loan Document, pursuant to an agreement or agreements or a consent or consents in writing entered into by the Borrower, the Servicer, to the extent it is a party thereto, the Required Lenders, and the Agent; provided that the foregoing shall not restrict the ability of the Required Lenders to waive any Event of Default prior to the time the Agent shall have declared, or the
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Required Lenders shall have requested the Agent to declare, the Loans immediately due and payable pursuant to Article IX; provided, however, that:
(i)no such amendment, change, waiver, discharge or termination shall, without the consent of each Lender affected thereby:
(A)extend the Step-Up Date or extend or waive the Maturity Date or any payment of the Loans due thereon; provided that this clause (A) shall not restrict the ability of the Required Lenders to waive any Event of Default (other than an Event of Default the waiver of which would effectively result in any such extension or waiver), prior to the time the Agent shall have declared, or the Required Lenders shall have requested the Agent to declare, the Loans immediately due and payable pursuant to Article IX;
(B)reduce the rate, or extend the time of payment, of interest (other than as a result of waiving the applicability of any post-default increase in interest rates) thereon or fees hereunder;
(C)reduce or waive the principal amount of any Loan;
(D)increase the Commitment of a Lender over the amount then in effect (it being understood and agreed that a waiver of any Default, Servicer Default, Servicer Event of Default or Event of Default or a mandatory reduction in the Commitments shall not constitute a change in the terms of any Commitment of any Lender);
(E)release all or substantially all of the Collateral securing the Credit Obligations hereunder (provided that the Collateral Agent may, without consent from any other Lender, release any Collateral that is sold or transferred by the Borrower in compliance with Section 7.05);
(F)release any Facility Party from its respective obligations under the Loan Documents and/or the Servicing Documents;
(G)amend, modify or waive any provision of this Section 11.03 or reduce any percentage specified in, or otherwise modify, the definitions of “Required Lenders” or “Majority Lenders”;
(H)amend or modify or, if applicable, waive the effects of the definitions of “Advance Rate”, “Flex Advance Rate”, “Borrowing Base”, “Borrowing Base Deficiency” “Flex Borrowing Base”, “Collateral Deficiency”, “Eligible Lease”, “Eligible Railcar”, “Excluded Assets Amount”, “Liquidity Reserve Target Amount”, “Debt Service Coverage Ratio”, “Hedging Event”, “Monthly Depreciation” or any term that is a component of any such definition; or
(I)consent to the assignment or transfer by either Facility Party of any of its rights and obligations under (or in respect of) the Loan Documents and the Servicing Agreement, except as permitted thereby.
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(ii)no provision of Article X may be amended without the consent of the Agent.
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above, (i) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein and (ii) the Required Lenders may consent to allow the Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding.
The various requirements of this Section 11.03 are cumulative. Each Lender and each holder of a Note shall be bound by any waiver, amendment or modification authorized by this Section 11.03 regardless of whether its Note shall have been marked to make reference therein, and any consent by any Lender or holder of a Note pursuant to this Section 11.03 shall bind any Person subsequently acquiring a Note from it, whether or not such Note shall have been so marked.
SECTION 11.04. Expenses. The Borrower shall pay promptly on demand, but in any event by the next Settlement Date following demand, all out-of-pocket expenses (including, without limitation, all reasonable attorneys’ fees and expenses of the Lenders) incurred by the Agent (and its Affiliates), the Collateral Agent, the Depositary and the Committed Lenders: (i) in connection with the preparation, execution, delivery, administration, modification and amendment of the Loan Documents including, without limitation, (A) due diligence, collateral review, syndication, transportation, computer, duplication, audit, insurance, consultant, search, filing and recording fees and expenses and (B) the reasonable fees and expenses of counsel for each of the Agent and the Collateral Agent with respect thereto, with respect to advising the Agent or the Collateral Agent as to its rights and responsibilities, or the perfection, protection or preservation of rights and interests, under the Loan Documents and Lease Documents, (ii) in connection with wire transfers to be made by the Agent or the Collateral Agent in connection with the distribution of proceeds under this Agreement and (iii) in connection with any amendment, refinancing, modification, supplement (or, if related to a request by any Facility Party or any Lessee, interpretation), or waiver under any of the Notes or other Loan Documents and Lease Documents whether or not such amendment, refinancing, modification, supplement, interpretation or waiver is obtained or becomes effective, and in connection with the consideration of any potential, actual or proposed restructuring or workout of the transactions contemplated hereby or by the other Loan Documents.
The Borrower shall pay promptly on demand, but in any event by the next Settlement Date following demand, (i) all reasonable filing fees and attorneys’ fees and expenses incurred by the Collateral Agent, the Depositary, the Agent and the Lenders and all reasonable fees and expenses of special STB or other collateral or regulatory counsel (and other local counsel reasonably engaged by the Collateral Agent, the Depositary or the Agent), as the case may be, in connection with the preparation and review of the Collateral Documents and the other Loan Documents and Lease Documents from time to time entered into or reviewed pursuant to this Agreement and all documents related thereto, the search of railcar conveyance and Lien records, the recordation of documents with the STB or other applicable Governmental Authority, inspection and appraisal fees and the making of the Loans hereunder, whether or not the Funding Date or other transaction contemplated hereby closes and (ii) all Taxes which the
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Collateral Agent or any Protected Party may be required to pay by reason of the security interests granted in the Collateral (including any applicable transfer Taxes) or to free any of the Collateral from the lien thereof.
In addition, the Borrower shall pay promptly on demand, but in any event by the next Settlement Date following demand, all reasonable out of pocket expenses (including, without limitation, reasonable attorneys’ fees and expenses and fees and expenses of any expert witnesses) incurred by the Agent, the Collateral Agent and the Lenders in connection with the enforcement and protection of the rights of the Agent, the Collateral Agent and the Lenders under any of the Loan Documents and any amendments thereto and waivers thereof and any Servicer Event of Default, Default or Event of Default, including without limitation, the performance by the Agent or the Lenders of any act any Facility Party has covenanted to do under the Loan Documents and/or the Servicing Documents to the extent such Facility Party fails to comply with any such covenant.
The Borrower shall pay all fees and expenses in connection with the Depository Agreement including, without limitation, all fees (including any annual fee payable to the Depositary pursuant to the Depository Agreement), expenses and any indemnity payments to the Depositary and all fees and expenses in creating, maintaining and administrating the Accounts.
This Section 11.04 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
SECTION 11.05. Indemnification. Whether or not the transactions contemplated hereby are consummated, Borrower (and TRIP, jointly and severally, to the extent caused by TRIP’s misrepresentation or failure to perform any of TRIP’s obligations under the Loan Documents or the Asset Contribution and Purchase Agreement) agrees to indemnify, save and hold harmless the Agent, the Collateral Agent, the Depositary, each Lender, each other Protected Party and their respective Affiliates, directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the “Indemnitees”) from and against (and without duplication of amounts payable or the provisions which relate to such payment under the other provisions of the Loan Documents): (i) any and all claims, demands, actions or causes of action that are asserted against any Indemnitee by any Person (other than the Agent, the Collateral Agent, the Depositary or any Lender) relating directly or indirectly to a claim, demand, action or cause of action that such Person asserts or may assert against any Facility Party, any Affiliate of any Facility Party or any of their respective officers or directors; (ii) any and all claims, demands, actions or causes of action that may at any time (including at any time following repayment of the Obligations and the resignation or removal of the Agent or the Collateral Agent or the replacement of any Lender) be asserted or imposed against any Indemnitee, arising out of or relating to, the Loan Documents, the Commitments, the use of or contemplated use of the proceeds of any Loan, or the relationship of any Facility Party, the Agent, the Collateral Agent, the Depositary, and the Lenders under this Agreement or any other Loan Document; (iii) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, judgments, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by, imposed on or asserted against such Indemnitee in connection with any administrative or investigative proceeding by any Governmental Authority arising out of or related to a claim, demand, action or cause of action
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described in clause (i) or (ii) above; (iv) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, judgments, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by, imposed on or asserted against such Indemnitee in connection with any Loan Document, Lease Document, other Transaction Document or any document contemplated hereby or thereby and payments made pursuant hereto or thereto or any transaction contemplated hereby or thereby or the exercise of rights and remedies hereunder or thereunder, any breach by any Facility Party of any Transaction Document or Lease Document or a Lessee of any Lease Document, (v) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, judgments, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by, imposed on or asserted against such Indemnitee in connection with any Railcar, any Part or the Borrower’s acquisition or ownership of, or the selection, design, financing, lease, control, operation, condition, location, storage, modification, repair, sale, use, maintenance, possession, registration, delivery, nondelivery, transportation, transfer or disposition of, any Railcar or Part; (vi) any liability arising under or in respect of any Environmental Law, in each case relating to any Railcar or the use, operation or ownership thereof, whether by any Facility Party, any Lessee or any other Person; (vii) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, judgments, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by, imposed on or asserted against such Indemnitee in connection with any investigation or administrative or judicial proceeding (whether or not such Indemnitee shall be designated a party thereto) brought or threatened relating to or arising out of any Collateral Document or in any other way connected with the enforcement of any of the terms of, or the presentation of any rights under, or in any way relating to or arising out of the manufacture, ownership, ordering, purchasing, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition or use of the Collateral (including, without limitation, intent or other defects, whether or not discoverable), the violation of any laws of any country, state or other governmental body or unit, or any tort (including, without limitation, any claims, arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Indemnitees)), or property damage or contract claim; and (viii) any and all liabilities (including liabilities under indemnities), losses, costs or expenses (including fees and disbursements of counsel) that any Indemnitee suffers or incurs as a result of the assertion of any foregoing claim, demand, action, cause of action or proceeding, or as a result of the preparation of any defense in connection with any foregoing claim, demand, action, cause of action or proceeding, in all cases, and whether or not an Indemnitee is a party to such claim, demand, action, cause of action, or Proceeding (all the foregoing, collectively; the “Indemnified Liabilities”). THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY INDEMNITEE; provided that no Indemnitee shall be entitled to indemnification for any claim caused by its own gross negligence or willful misconduct and provided further, that no Indemnitee shall be entitled to indemnification for any claim (i) arising solely out of (a) the bankruptcy, insolvency or other financial inability of one or more Lessees to make payments under a related Lease or (b) the decline in market value of a Portfolio Railcar, to the
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extent not attributable to the failure of a Facility Party to perform an obligation with respect to such Portfolio Railcar under a Transaction Document or (ii) with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim or as required by the following paragraph. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 11.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Facility Party, their respective directors, shareholders or creditors or an Indemnitee or any other Person or any Indemnitee is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. Each Facility Party agrees not to assert any claim against the Agent, the Collateral Agent, the Depositary, any Lender, any other Protected Party, any of their Affiliates or any of their respective directors, officers, employees, attorneys, agents and advisers, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Loan Documents, any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Loans. Without prejudice to the survival of any other agreement of the TRIP Parties hereunder and under the other Loan Documents, the agreements and obligations of the TRIP Parties contained in this Section 11.05 shall survive the repayment of the Loans and other obligations under the Loan Documents and the termination of the Commitments hereunder.
The TRIP Parties shall, no later than 20 days following demand, reimburse any Indemnitee for any Indemnified Liability referred to above or, upon request from any Indemnitee, shall pay such amounts directly. Any payment made to or on behalf of any Indemnitee pursuant to this Section 11.05 shall be adjusted to such amount as will, after taking into account all Taxes imposed with respect to the accrual or receipt of such payment (as the same may be increased pursuant to this sentence), equal the amount of the payment. To the extent that either TRIP Party in fact indemnifies any Indemnitee pursuant to the provisions of this Section 11.05 (other than in respect of Taxes), such TRIP Party shall be subrogated to such Indemnitee’s rights in the affected transaction and shall have a right to determine the settlement of claims therein.
If a claim of the type described above is made against an Indemnitee and such Indemnitee has notice thereof, such Indemnitee shall promptly, upon receiving such notice, give notice of such claim to the Borrower; provided that the failure to provide such notice shall not release any TRIP Party from any of its obligations hereunder except if and to the extent that such failure results in an increase in either TRIP Party’s indemnification obligations hereunder. The TRIP Parties shall be entitled, in each case at their sole cost and expense, acting through counsel reasonably acceptable to the relevant Indemnitee: (i) in any judicial or administrative proceeding that involves solely a claim of the type described above, to assume responsibility for and control thereof, (ii) in any judicial or administrative proceeding involving a claim of the type described above and other claims related or unrelated to the transactions contemplated by this Agreement or any other Loan Document (other than with respect to Taxes), to assume responsibility for and control of such claim, to the extent that the same may be and is severed from such other claims (and such Indemnitee shall use its best efforts to obtain such severance), and (iii) in any other case, to be consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee. Notwithstanding anything in the foregoing to the contrary, neither TRIP Party shall be entitled to assume responsibility for and control of any such judicial or administrative proceedings: (A) while an Event of Default shall have occurred and be continuing; (B) if such proceedings will involve any
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risk of criminal liability or a material risk of the sale, forfeiture or loss of any part of the Collateral; or (C) to the extent that the Indemnitee has defenses available to it which are not available to either TRIP Party and allowing such TRIP Party to assert such defenses will be prejudicial to the interests of such Indemnitee; provided that the limitation on the TRIP Parties’ ability to control such judicial or administrative proceeding shall apply only to those aspects of such proceeding which address issues with respect to which such defenses are available.
The relevant Indemnitee shall supply the Borrower with such information reasonably requested by the Borrower as is necessary or advisable for either Facility Party to control or participate in any proceeding to the extent permitted by this Section 11.05. Such Indemnitee shall not enter into a settlement or other compromise with respect to any covered claim without the prior written consent of the Borrower, which consent shall not be unreasonably withheld or delayed, unless such Indemnitee waives its right to be protected with respect to such covered claim.
SECTION 11.06. Successors and Assigns.
(a)Generally. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided that no Facility Party may assign or transfer any of its interests and obligations without the prior written consent of either the Required Lenders or the Lenders, as the terms set forth in Section 11.03 may require;
(b)Assignments. Upon notification to the Borrower, any Lender may assign all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Loans and its Commitments); provided, however, that
(i)each such assignment shall be to an Eligible Assignee who, unless otherwise consented to by the Borrower, is not a Competitor of the Borrower;
(ii)except in the case of an assignment to another Lender, an Affiliate of an existing Lender or any Approved Fund (A) the aggregate amount of the Commitment of the assigning Lender subject to such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Agent) shall not, without the consent of the Borrower and the Agent, be less than $5,000,000 and an integral multiple of $1,000,000 (or such other amount as shall equal the assigning Lender’s entire Commitment) and (B) after giving effect to such assignment, unless otherwise consented to by the Borrower, the aggregate amount of the Commitment and/or Loans of the assigning Lender shall not be less than $2,500,000 (unless the assigning Lender shall have assigned its entire Commitment and/or the entire balance of the outstanding Loans); and
(iii)the parties to such assignment shall execute and deliver to the Agent for its acceptance an Assignment and Acceptance in the form of Exhibit C, together with any Note subject to such assignment and a processing fee of $3,500, payable or agreed between the assigning Lender and the assignee;
provided further, however, notwithstanding anything to the contrary contained herein, upon the occurrence and during the continuance of an Event of Default hereunder, any Lender
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may assign all or a portion of its obligations under this Agreement in accordance with clause (iii) above.
(c)Assignment and Acceptance. By executing and delivering an Assignment and Acceptance in accordance with this Section 11.06, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and the assignee warrants that it is an Eligible Assignee; (ii) except as set forth in clause (i) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto or the financial condition of the Facility Parties or the performance or observance by any Facility Party of any of its obligations under this Agreement, any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee represents and warrants that it is legally authorized to enter into such assignment agreement; (iv) such assignee confirms that it has received a copy of this Agreement, the other Loan Documents, together with copies of the most recent financial statements delivered pursuant to Section 6.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the Agent, the Collateral Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (vi) such assignee appoints and authorizes each of the Agent and the Collateral Agent to take such action on its behalf and to exercise such powers under this Agreement or any other Loan Document as are delegated to each of the Agent and the Collateral Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender. Upon execution, delivery, and acceptance of such Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and benefits of a Lender hereunder and the assigning Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under this Agreement. Upon the consummation of any assignment pursuant to this Section 11.06(c), the assignor, the Agent and the Facility Parties shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee. In addition, the assignee shall deliver to the Borrower and the Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 3.01.
(d)Register. The Borrower hereby designates the Agent to serve as the Borrower’s agent, solely for purposes of this Section 11.06(d), to (i) maintain a register (the “Register”) on which the Agent will record the Commitments from time to time of each Lender, the Loans made by each Lender and each repayment in respect of the principal amount of the Loans of each Lender and to (ii) retain a copy of each Assignment and Acceptance delivered to the
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Agent pursuant to this Section 11.06(d). Failure to make any such recordation, or any error in such recordation, shall not affect the Borrower’s obligation in respect of such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders shall treat each Person in whose name a Loan and the Note evidencing the same is registered as the owner thereof for all purposes of this Agreement, notwithstanding notice or any provision herein to the contrary. With respect to any Lender, the assignment or other transfer of the Commitments of such Lender and the rights to the principal of, and interest on, the Loan made and any Note issued pursuant to this Agreement shall not be effective until such assignment or other transfer is recorded on the Register and, except to the extent provided in this Section 11.06(d), otherwise complies with Section 11.06, and prior to such recordation all amounts owing to the transferring Lender with respect to such Commitments, Loans and Notes shall remain owing to the transferring Lender. The registration of assignment or other transfer of all or part of any Commitments, Loans and Notes for a Lender shall be recorded by the Agent on the Register only upon the acceptance by the Agent of a properly executed and delivered Assignment and Acceptance and payment of the administrative fee referred to in Section 11.06(b)(iii). The Register shall be available at the offices where kept by the Agent for inspection by the Borrower and any Lender at any reasonable time upon reasonable prior notice to the Agent. In addition to such inspection rights, upon request of any Lender, the Agent will provide to such Lender an electronic copy of the Register, together with a current copy of Schedule E hereto.
(e)Participations. Each Lender may, without the consent of the Borrower or the Agent, sell participations to one or more Persons in all or a portion of its rights, obligations or rights and obligations under this Agreement (including all or a portion of its Commitment or the Loans owing to it and any Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participant shall be entitled to the benefit of right of setoff contained in Section 11.08 and the yield protection provisions contained in Sections 3.01, 3.03 and 3.04 to the same extent that the Lender from which such participant acquired its participation would be entitled to the benefits of such yield protections; provided that the Borrower shall not be required to reimburse any participant pursuant to Sections 3.01, 3.03 or 3.04 in an amount which exceeds the amount that would have been payable thereunder to such Lender had such Lender not sold such participation and (iv) the Facility Parties, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the obligations of the Facility Parties relating to the Obligations owing to such Lender and to approve any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing the amount of principal of or the rate at which interest is payable on such Loans or Notes, extending any scheduled principal payment date or date fixed for the payment of interest on such Loans or Notes or extending its Commitment). Each Lender that sells a participating interest in any Loan, Commitment or other interest to a participant shall, as agent of the Borrower solely for the purpose of this Section 11.06(e), maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in any Loan, Commitment or other interest (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the
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Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Loans, Commitments or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Loan, Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f)Other Assignments. Any Lender may at any time (i) assign all or any portion of its rights under this Agreement and any Loans or Notes to a Federal Reserve Bank, (ii) pledge or assign a security interest in all or any portion of its interest and rights under this Agreement (including all or any portion of its Loans or Notes, if any) to secure obligations of such Lender and (iii) grant to a Conduit Lender referred to in subsection (h) below identified as such in writing from time to time by such Lender to the Agent and the Borrower the option to provide to the Borrower all or any part of any Loan that such Lender would otherwise be obligated to make to the Borrower pursuant to the Agreement; provided that no such assignment, option, pledge or security interest shall release a Lender from any of its obligations hereunder or substitute any such Federal Reserve Bank or other person to which such option, pledge or assignment has been made for such Lender as a party hereto.
(g)Information. Any Lender may furnish any information concerning any Facility Party in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 11.07.
(h)Conduit Lenders, etc. Notwithstanding anything to the contrary contained herein, any Committed Lender, (a “Granting Lender”) may grant to a conduit lender, identified as such in writing from time to time by the Granting Lender to the Agent and the Borrower (a “Conduit Lender”) the option to fund all or any part of any Loan that such Granting Lender would otherwise be obligated to fund pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any Conduit Lender to fund any Loan and (ii) if a Conduit Lender elects not to exercise such option or otherwise fails to fund all or any part of such Loan, the Granting Lender shall be obligated to fund such Loan pursuant to the terms hereof. The funding of a Loan by a Conduit Lender hereunder shall utilize the Commitment of the Granting Lender to the same extent that, and as if, such Loan were funded by such Granting Lender. Each party hereto hereby agrees that no Conduit Lender shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable for so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment. Notwithstanding anything to the contrary contained in this Agreement, any Conduit Lender may disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer, or investors, or provider of any surety or guarantee to such Conduit Lender. This subsection (h) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Loan is being funded by a Conduit Lender at the time of such amendment. Each Conduit Lender shall be permitted, without the consent of the Borrower or the Agent, to assign any or all of its
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interests or obligations under this Agreement to its liquidity provider pursuant to the terms of the related liquidity asset purchase agreement, and for the avoidance of doubt, such assignment shall not be subject to the provisions of Section 11.06(b); provided, however, that (i) such Conduit Lender’s related Granting Lender’s obligations under this Agreement shall remain unchanged and (ii) such Granting Lender shall remain solely responsible to the other parties hereto for the performance of such obligations.
SECTION 11.7. Confidentiality. Subject to the provisions of Section 11.06(h), each of the Agent, the Depositary, the Collateral Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors and its insurers, reinsurers and brokers and each of their respective affiliates (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (ii) to the extent requested by any regulatory authority with jurisdiction over the Agent, the Collateral Agent, the Depositary, or Lender, as applicable; (iii) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process; (iv) to any other party to this Agreement; (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan Documents or the enforcement of rights hereunder or thereunder; (vi) subject to an agreement containing provisions substantially the same as those of this Section 11.07, to (A) any Eligible Assignee of or participant in, or any prospective Eligible Assignee of or participant in, any of its rights or obligations under this Agreement, (B) any direct or indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional advisor) to any credit derivative transaction relating to obligations of the Borrower or (C) any Support Party or any managing agent of a Lender that is a commercial paper conduit; (vii) with the written consent of the Borrower; (viii) to the extent such information (A) becomes publicly available other than as a result of a breach of this Section 11.07 or (B) becomes available to the Agent, the Collateral Agent, the Depositary, or any Lender on a nonconfidential basis from a source other than the Borrower; or (ix) to the National Association of Insurance Commissioners or any other similar organization or any nationally recognized rating agency that requires access to information about a Lender’s or its Affiliates’ investment portfolio in connection with ratings issued with respect to such Lender or its Affiliates. For the purposes of this Section 11.07, “Information” means all information received from or on behalf of any Facility Party relating to any Facility Party or its respective business, other than any such information that is available to the Agent, the Collateral Agent, the Depositary, or any Lender on a nonconfidential basis prior to disclosure by or on behalf of a Facility Party; provided that, in the case of information received from or on behalf of a Facility Party after the date hereof, such information is clearly identified in writing at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 11.07 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
SECTION 11.8. Set-off. In addition to any rights now or hereafter granted under Applicable Law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, each Lender (and each of its Affiliates) is authorized at any time and from time to time, without presentment, demand,
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protest or other notice of any kind (all of such rights being hereby expressly waived), to set-off and to appropriate and apply any and all deposits (general or specific) and any other indebtedness at any time held or owing by such Lender (including, without limitation, branches, agencies or Affiliates of such Lender wherever located) to or for the credit or the account of the Borrower against obligations and liabilities of the Borrower to the Lenders hereunder, under the Loans and Notes, under the other Loan Documents or otherwise, irrespective of whether the Agent or the Lenders shall have made any demand hereunder and although such obligations, liabilities or claims, or any of them, may be contingent or unmatured, and any such set-off shall be deemed to have been made immediately upon the occurrence of an Event of Default even though such charge is made or entered on the books of such Lender subsequent thereto. The Borrower hereby agrees that to the extent permitted by law any Person purchasing a participation in the Loans and Commitments hereunder may exercise all rights of set-off with respect to its participation interest as fully as if such Person were a Lender hereunder and any such set-off shall reduce the amount owed by the Borrower to the Lender.
SECTION 11.9. Interest Rate Limitation. The Agent, the Lenders and the Facility Parties and any other parties to the Loan Documents intend to contract in strict compliance with applicable usury law from time to time in effect. In furtherance thereof such Persons stipulate and agree that none of the terms and provisions contained in the Loan Documents shall ever be construed to create a contract to pay, for the use, forbearance or detention of money, interest in excess of the maximum amount of interest permitted to be charged by Applicable Law from time to time in effect. Neither any Facility Party nor any present or future guarantors, endorsers, or other Persons hereafter becoming liable for payment of any Credit Obligation shall ever be liable for unearned interest thereon or shall ever be required to pay interest thereon in excess of the maximum amount that may be lawfully charged under Applicable Law from time to time in effect, and the provisions of this Section 11.09 shall control over all other provisions of the Loan Documents which may be in conflict or apparent conflict herewith. The Lenders and the Agent expressly disavow any intention to charge or collect excessive unearned interest or finance charges in the event the maturity of any Credit Obligation is accelerated. If (i) the maturity of any Credit Obligation is accelerated for any reason, (ii) any Credit Obligation is prepaid and as a result any amounts held to constitute interest are determined to be in excess of the legal maximum, or (iii) any Lender of any other holder of any or all of the Credit Obligations shall otherwise collect moneys which are determined to constitute interest which would otherwise increase the interest on any or all of the Credit Obligations to an amount in excess of that permitted to be charged by Applicable Law then in effect, then all sums determined to constitute interest in excess of such legal limit shall, without penalty, be promptly applied to reduce the then outstanding principal of the related Credit Obligations or, at such Lender’s or holder’s option, promptly returned to the Borrower or the other payor thereof upon such determination. In determining whether or not the interest paid or payable, under any specific circumstance, exceeds the maximum amount permitted under Applicable Law, the Agent, the Lenders and the Facility Parties (and any other payors thereof) shall to the greatest extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and spread the total amount of interest throughout the entire contemplated term of the instruments evidencing the Credit Obligations in accordance with the amounts outstanding from time to time thereunder and the maximum legal rate of interest from time to time in effect under
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Applicable Law in order to lawfully charge the maximum amount of interest permitted under Applicable Law. In the event Applicable Law provides for an interest ceiling under Chapter 303 of the Texas Finance Code (the “Texas Finance Code”) as amended, for that day, the ceiling shall be the “weekly ceiling” as defined in the Texas Finance Code; provided that if any Applicable Law permits greater interest, the Law permitting the greatest interest shall apply. As used in this Section 11.09 the term “Applicable Law” includes, without limitation the laws of the State of Texas, the laws of the State of New York or the laws of the United States of America, whichever laws allow the greatest interest, as such laws now exist or may be changed or amended or come into effect in the future.
SECTION 11.10. Counterparts. This Agreement may be executed and delivered in counterparts (including by facsimile transmission or electronic transmission (including .pdf file, .jpeg file or any electronic signature complying with the U.S. federal ESIGN Act of 2000, including Orbit, Adobe Sign, DocuSign, or any other similar platform identified by the Agent)), each of which will be deemed an original, and all of which together constitute one and the same Agreement. It shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart. None of the Agent, the Collateral Agent or the Depositary shall incur any liability arising out of the use of electronic signatures and electronic methods to submit communications to the Agent, the Collateral Agent and the Depositary, including without limitation the risk of the Agent, the Collateral Agent or the Depositary acting on unauthorized instructions that the Agent, the Collateral Agent or the Depositary, as applicable, believes to be genuine, and the risk of interception and misuse by third parties. Neither the Agent, the Collateral Agent nor the Depositary shall have any liability for accepting and relying on electronic contracting and signatures it believes to be genuine.
SECTION 11.11. Integration. THIS WRITTEN AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agent, the Collateral Agent, the Depositary or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
SECTION 11.12. Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof and any subsequent making or deemed making thereof. Such representations and warranties have been or will be relied upon by the Agent, the Collateral Agent and each Lender, regardless of any investigation made by the Agent, the Collateral Agent or any Lender or on their behalf and notwithstanding that the Agent, the Collateral Agent or any Lender may have had notice or knowledge of any Default or Event of Default at the time of the Borrowing, and shall continue in full force and effect as long as any Loan or any other Obligation shall remain unpaid or unsatisfied.
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SECTION 11.13. Severability. Any provision of this Agreement and the other Loan Documents to which any Facility Party is a party that 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 thereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 11.14. Headings. The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
SECTION 11.15. Marshalling; Payments Set Aside. None of the Agent, the Collateral Agent or any Lender shall be under any obligation to marshal any assets in favor of the Borrower or any other party or against or in payment of any or all of the Obligations. To the extent that the Borrower makes a payment or payments to the Agent or the Collateral Agent (or to the Agent for the benefit of the Lenders or the Collateral Agent for the benefit of the Protected Parties), or the Agent or the Collateral Agent enforces any security interests or exercises its rights of set-off, and such payment or payments or the proceeds of such enforcement or set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or set-off had not occurred.
SECTION 11.16. Performance by the Agent. If any Facility Party fails to perform any of its obligations under this Agreement or any other Loan Document or any Servicing Document in a timely fashion, the Agent shall be entitled, but not obliged, to perform such obligation at the expense of the Borrower and without waiving any rights that it may have with respect to such breach.
SECTION 11.17. Third Party Beneficiaries. Each Protected Party, including without limitation each Support Party, is an express third party beneficiary hereof.
SECTION 11.18. No Proceedings. Each party hereto hereby agrees that it will not institute against any Conduit Lender, or join any other Person in instituting against any Conduit Lender, any bankruptcy, insolvency, receivership, liquidation or similar proceeding from the Facility Closing Date until one year plus one day following the last day on which all commercial paper notes and other publicly or privately placed indebtedness for borrowed money of such Conduit Lender together with all related derivative or other hedging obligations shall have been indefeasibly paid in full.
(b)No recourse under any obligation, covenant or agreement of Conduit Lender as contained in any Loan Document shall be had against any incorporator, stockholder, affiliate, officer, employee or director of the Conduit Lender, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of each Conduit Lender contained in any Loan
                            126                    Loan Agreement

Document are solely corporate obligations of such Conduit Lender and that no personal liability whatsoever shall attach to or be incurred by the incorporators, stockholders, affiliates, officers, employees or directors of such Conduit Lender, under or by reason of any of the respective obligations, covenants or agreements of such Conduit Lender contained in any Loan Document, or implied therefrom, and that any and all personal liability of every such incorporator, stockholder, affiliate, officer, employee or director of such Conduit Lender for breaches by such Conduit Lender of any such obligation, covenant or agreement, which liability may arise either at common law or in equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement.
(c)Notwithstanding anything contained in this Agreement to the contrary, no Conduit Lender shall have any liability or obligation hereunder unless and until such Conduit Lender has received such amounts pursuant to this Agreement. In addition, the parties hereto hereby agree that a Conduit Lender shall have no obligation to pay the parties hereto any amounts constituting fees, reimbursement for expenses or indemnities (collectively, “Expense Claims”) and such Expense Claims shall not constitute a claim (as defined in Section 101 of Title 11 of the United States Bankruptcy Code or similar laws of another jurisdiction) against such Conduit Lender, unless or until such Conduit Lender has received amounts sufficient to pay such Expense Claims pursuant to this Agreement and such amounts are not required to pay the outstanding indebtedness of such Conduit Lender
(d)The provisions of this Section 11.18 shall survive the termination of this Agreement.
SECTION 11.19. Governing Law; Submission to Jurisdiction. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan accounts and revolving tri-party accounts) does not apply to this Agreement or to any other Loan Document. Any legal action or proceeding with respect to this Agreement or any other Loan Document may be brought in the courts of the State of New York in New York County, or of the United States for the Southern District of New York and, by execution and delivery of this Agreement, each Facility Party hereby irrevocably accepts for itself and in respect of its property, generally and unconditional, the nonexclusive jurisdiction of such courts. Each Facility Party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such court and any claim that any such proceeding brought in any such court has been brought in an inconvenient forum.
(b)[Reserved].
SECTION 11.20. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY
                            127                    Loan Agreement

WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.20 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 11.21. Binding Effect. This Agreement shall become effective at such time when it shall have been executed by the Facility Parties, the Collateral Agent and the Agent, and the Agent shall have received copies hereof (telefaxed or otherwise) which, when taken together, bear the signatures of each Committed Lender, and thereafter this Agreement shall be binding upon and inure to the benefit of the Facility Parties, the Agent, the Collateral Agent, the Depositary and each Lender and their respective successors and assigns. For the avoidance of doubt, any amendment or amendment and restatement of this Agreement is not intended to be and should not be construed as a novation of any of the obligations of any Facility Party in existence on the date of such amendment or amendment and restatement.
SECTION 11.22. The Patriot Act. The Agent and each Lender hereby notifies the Borrower that pursuant to the requirements of the Patriot Act and any comparable law applicable to any Lender, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Agent and/or any Lender to identify the Borrower in accordance with the Patriot Act.
SECTION 11.23. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)the effects of any Bail-in Action on any such liability, including, if applicable:
(i)a reduction in full or in part or cancellation of any such liability;
(ii)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such
                            128                    Loan Agreement

shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
SECTION 11.24. Force Majeure. Neither the Collateral Agent, the Depositary nor the Agent shall be liable for delays, errors or losses occurring by reason of any events, circumstances or causes whatsoever beyond the Collateral Agent’s, the Depositary’s or the Agent’s reasonable control, including, without limitation, governmental restrictions, regulations or controls, mechanical breakdowns, shortages of or inability to obtain labor, fuel, steam, water, electricity or materials acts of God, inability to obtain governmental approvals or consents, adjustment of insurance claims, enemy action, national emergency, epidemics, pandemics, landslides, lightning, earthquake, civil commotion, fires, floods or any other casualties, events or circumstances; provided, however, that the Collateral Agent, the Depositary or the Agent, as applicable, shall have used reasonable efforts to perform its obligations notwithstanding such occurrences.
SECTION 11.25. Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Derivatives Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.
(b)As used in this Section 11.25, the following terms have the following meanings:
                            129                    Loan Agreement

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
(i)a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b)
(ii)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). .

[Signature Pages Follow]
                            130                    Loan Agreement

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
TRINITY INDUSTRIES LEASING COMPANY

By: /s/ Sara E. McCoy        
Name: Sara E. McCoy    
Title: Senior Vice President and Managing Director    

TRIP RAILCAR CO., LLC
By:    TRIP RAIL HOLDINGS LLC
its Manager
By:    Trinity Industries Leasing Company
its Agent

By: /s/ Sara E. McCoy        
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director


TRIP RAIL HOLDINGS LLC
By:    Trinity Industries Leasing Company
its Agent

By: /s/ Sara E. McCoy        
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director
Loan Agreement

CREDIT SUISSE AG, NEW YORK BRANCH, as Agent
By: /s/ Jason Ruchelsman    
Name: Jason Ruchelsman
Title: Director
By: /s/ Kevin Quinn    
Name: Kevin Quinn
Title: Director



        Loan Agreement

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Committed Lender
By: /s/ Jason Ruchelsman    
Name: Jason Ruchelsman
Title: Authorized Signatory
By: /s/ Kevin Quinn    
Name: Kevin Quinn
Title: Authorized Signatory












        Loan Agreement

BANK OF AMERICA, N.A., as Committed Lender
By: /s/ Bradley Sohl    
Name: Bradley Sohl
Title: Director

        Loan Agreement

WELLS FARGO BANK, N.A., as Committed Lender
By: /s/ John Fulvimar    
Name: John Fulvimar
Title: Director

        Loan Agreement

DEUTSCHE BANK AG, NEW YORK BRANCH, as Committed Lender
By: /s/ Daniel Gerber    
Name: Daniel Gerber
Title: Managing Director
By: /s/ Maureen Farley    
Name: Maureen Farley
Title: Director

        Loan Agreement

FIFTH THIRD BANK, NATIONAL ASSOCIATION, as Committed Lender
By: /s/ Andrew D. Jones    
Name: Andrew D. Jones
Title: Managing Director

        Loan Agreement

MORGAN STANLEY BANK, N.A., as Committed Lender
By: /s/ Michelangelo Raimondi    
Name: Michelangelo Raimondi
Title: Authorized Signatory


        Loan Agreement

ALPINE SECURITIZATION LTD, as a Conduit Lender
By: CREDIT SUISSE AG, NEW YORK BRANCH, as Attorney-in-fact

By: /s/ Jason Ruchelsman    
Name: Jason Ruchelsman
Title: Director
By: /s/ Kevin Quinn    
Name: Kevin Quinn
Title: Director



























        Loan Agreement


U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent and Depositary

By: /s/ Chris McKim        
Name: Chris McKim
Title: Vice President









        Loan Agreement

Exhibit 10.4.1

May 25, 2021

Credit Suisse AG, New York Branch, as Agent
Eleven Madison Avenue
New York, New York 10010
Attn: Patrick Hart
(212) 538-2007 (phone)
(212) 325-4519 (fax)

With a copy to:

Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Attn: Roman Schwartz
(212) 325-9896 (phone)
(212) 743-5442 (fax)

Re: Notice of Optional Reduction of Commitment

Ladies and Gentlemen:
Reference is made to the Term Loan Agreement dated as of May 18, 2021 (the “Loan Agreement”) among TRIP Railcar Co., LLC, as borrower, Trinity Industries Leasing Company, as servicer, TRIP Rail Holdings LLC, the banks and other lending institutions from time to time party thereto, Credit Suisse AG, New York Branch, as agent, and U.S. Bank National Association, as collateral agent and depositary. Capitalized terms used but not defined in this Notice of Optional Reduction of Commitment shall have the meanings given thereto in the Loan Agreement.
As Agent under the Loan Agreement, you are hereby notified pursuant to Section 2.08(a) of the Loan Agreement that the Borrower irrevocably reduces the Committed Amount by $200,000,000, to $335,000,000, effective as of two Business Days after the date hereof.
This Notice of Optional Reduction of Commitment shall be governed by the laws of the State of New York.
[Signature page to follow]



Very truly yours,

TRIP RAILCAR CO., LLC

By: TRIP Rail Holdings LLC
its Manager

By: Trinity Industries Leasing Company
its Agent



By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director



Exhibit 10.4.2





ASSET CONTRIBUTION AND PURCHASE AGREEMENT
dated as of May 18, 2021
between
TRIP RAILCAR CO., LLC
and
TRIP RAIL HOLDINGS LLC




ARTICLE I DEFINITIONS 1
Section 1.1 Definitions 1
Section 1.2 UCC Terms 3
Section 1.3 Interpretation 3
ARTICLE II CONTRIBUTION OF ASSETS; SALE AND PURCHASE OF ASSETS; ASSUMPTION OF ASSUMED OBLIGATIONS 3
Section 2.1 Transferred Assets 3
Section 2.2 Consideration 4
Section 2.3 Agent to Hold Existing Leases 4
Section 2.4 Assumed Obligations 4
Section 2.5 TRIP Intent 4
Section 2.6 Letter-of-Credit Rights 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF TRIP 5
Section 3.1 Organization and Good Standing 5
Section 3.2 Power; Authorization; Enforceable Obligations 5
Section 3.3 No Conflicts 5
Section 3.4 No Litigation Pending 6
Section 3.5 No Violation of Authority or Applicable Law 6
Section 3.6 Bulk Sales Notice 6
Section 3.7 Title 6
Section 3.8 Records 6
Section 3.9 Transfer Taxes 7
Section 3.10 No Restrictions on Transfer 7
Section 3.11 Broker’s Fees 7
Section 3.12 Railcars 7
Section 3.13 Marks 7
Section 3.14 Event of Loss 7
Section 3.15 Solvency 7
Section 3.16 Permits; etc. 8
Section 3.17 Leases 8
Section 3.18 Marks Company Interest 10
Section 3.19 No Adverse Selection 10
Section 3.20 Full Disclosure 10
ARTICLE IV COVENANTS OF TRIP 10
Section 4.1 Implementing Agreement 10
Section 4.2 Consents and Approvals 11
Section 4.3 Notification of Breach 11
Section 4.4 Taxes 11
Section 4.5 Property Tax Reimbursement 11
Section 4.6 Notice and Acknowledgements 11
Section 4.7 Transfer of Transferred Assets 12
i

Section 4.8 No Bankruptcy Petition Against the Company 12
Section 4.9 Substantive Consolidation 12
Section 4.10 [Reserved] 13
Section 4.11 Rescission of Transfer 13
ARTICLE V EFFECTIVENESS; DELIVERABLES 13
Section 5.1 Effectiveness 14
Section 5.2 Deliverables 14
ARTICLE VI INDEMNIFICATION 14
Section 6.1 Indemnification 14
Section 6.2 Right of Set Off 16
ARTICLE VII MISCELLANEOUS 16
Section 7.1 Expenses 16
Section 7.2 Notices and Other Communications 17
Section 7.3 Effectiveness of Facsimile Documents and Signatures 17
Section 7.4 Effect of Investigation 17
Section 7.5 Waivers 17
Section 7.6 Amendment 17
Section 7.7 Assignment 18
Section 7.8 Assignment to Collateral Agent 18
Section 7.9 Further Assurances 18
Section 7.10 Severability 18
Section 7.11 Remedies Cumulative 18
Section 7.12 Entire Understanding 18
Section 7.13 Headings 18
Section 7.14 Counterparts 18
Section 7.15 Survival of Representations and Warranties 19
Section 7.16 Governing Law; Submission to Jurisdiction 19
Section 7.17 Waiver of Jury Trial 19

EXHIBITS

EXHIBIT A Bill of Sale and Assignment and Assumption Agreement

ii

ASSET CONTRIBUTION AND PURCHASE AGREEMENT
This ASSET CONTRIBUTION AND PURCHASE AGREEMENT, dated as of May 18, 2021, is between TRIP RAILCAR CO., LLC, a Delaware limited liability company (the “Company”), and TRIP RAIL HOLDINGS LLC, a Delaware limited liability company (“TRIP Holdings”).
RECITALS
TRIP Holdings is the direct owner of 100% of the membership interests of the Company. TRIP Holdings desires to transfer and convey to the Company on the Transfer Date, and the Company desires to acquire from TRIP Holdings at such time, all of TRIP Holdings’ right, title and interest in certain Railcars (together with all assignable warranties, guaranties and Permits related thereto) and certain Leases, and all income, proceeds and reserves in connection therewith.
The Company will acquire ownership of such Railcars and such Leases from TRIP Holdings by paying the purchase price therefor (as set forth in Exhibit A to the Bill of Sale, the “Purchase Price”), to be funded through a combination of funds received through a borrowing under the Loan Agreement (as defined below), retained earnings (if any) then available to the Company for such purpose, and a capital contribution by TRIP to the Company.
The Company executed the Term Loan Agreement, dated as of the date hereof (as amended, supplemented, amended and restated, extended, renewed or otherwise modified from time to time, the “Loan Agreement”), among the Company, as the Borrower, TRIP Holdings, Trinity Industries Leasing Company (“TILC”), as Servicer, Credit Suisse AG, Cayman Islands Branch and the other committed lenders and the conduit lenders from time to time parties thereto, as Lenders, Credit Suisse AG, New York Branch, as Agent (in such capacity, the “Agent”), and U.S. Bank National Association, as collateral agent (together with its successor or successors in such capacity, the “Collateral Agent”) and Depositary (the “Depositary”), whereby the Lenders have agreed to advance to the Company certain amounts in order for the Company to make purchases hereunder. In connection with the financing of the Company’s purchase of certain Railcars and certain Leases under the Loan Agreement, the Company has executed and granted pursuant to a Security Agreement, dated as of the date hereof, a first priority Lien in such Railcars and such Leases and certain other Collateral (as defined in the Security Agreement). TRIP Holdings agrees that all representations, warranties, covenants and agreements made by TRIP Holdings herein shall be for the benefit of the Company, the Lenders, the Agent and the Collateral Agent.
NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used in this Agreement but not defined herein shall have the meaning assigned to such terms in the Loan Agreement.
1

Otherwise, terms defined herein shall have the following meanings and the definitions of such terms shall be equally applicable to the singular and plural forms of such terms:
“Agreement” means this Asset Contribution and Purchase Agreement, including all exhibits and schedules hereto, as it may be supplemented by the Bill of Sale and otherwise as amended, supplemented, amended and restated or modified from time to time.
“Assumed Obligations” has the meaning set forth in Section 2.4.
“Bill of Sale” means the bill of sale and assignment and assumption agreement substantially in the form of Exhibit A duly executed and delivered by TRIP Holdings in connection with the Company’s acquisition of Railcars and Leases from TRIP Holdings, and incorporated herein upon delivery thereof.
“Company” has the meaning set forth in the preamble.
“Indemnified Liabilities” has the meaning set forth in Section 6.1.
“Indemnitees” has the meaning set forth in Section 6.1.
“Letter-of-Credit Right” means a Letter-of-Credit Right as defined in the Security Agreement.
“Loan Agreement” has the meaning set forth in the preamble.
“Material Adverse Effect” means (i) any material adverse effect upon the operations, business, properties, condition (financial or otherwise) or prospects of TRIP Holdings or the Company (after taking into account any applicable insurance and any applicable indemnification (to the extent the provider of such insurance or indemnification has the financial ability to support its obligations with respect thereto and is not disputing or refusing to acknowledge the same)), (ii) a material adverse effect on the ability of the Company or TRIP Holdings to consummate the transactions contemplated hereby to occur on the Transfer Date, (iii) a material impairment of the ability of TRIP Holdings to perform any of its obligations under this Agreement or any other TRIP Holdings Agreement or (iv) a material impairment of the rights and benefits of the Company under this Agreement or any other TRIP Holdings Agreement.
“Supporting Obligation” means a Letter-of-Credit Right, guarantee or other secondary obligation supporting, or any Lien securing, the payment or performance of one or more receivables, accounts, chattel paper, general intangibles, documents, instruments or investment property.
“TILC” has the meaning set forth in the preamble.
“Transfer Date” means the date on which Railcars or Leases are transferred by TRIP Holdings to the Company pursuant to the terms of this Agreement.
“Transfer Taxes” has the meaning set forth in Section 3.9.
“Transferred Assets” has the meaning set forth in Section 2.1.
2

“Transferred Leases” means the Leases listed on Exhibit B to the Bill of Sale delivered on the Transfer Date.
“Transferred Railcars” means the Railcars described in Exhibit A to the Bill of Sale delivered on the Transfer Date, together with any and all options, warranties, service contracts, program services, test rights, maintenance rights, support rights, improvement rights, indemnifications, guarantees and Permits in connection therewith.
“TRIP Holdings” has the meaning set forth in the preamble.
“TRIP Holdings Agreements” means this Agreement and the Bill of Sale.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York.
Section 1.2 UCC Terms. Unless otherwise defined herein or in the Loan Agreement or the context otherwise requires, uncapitalized terms used herein which are defined in the UCC have the respective meanings provided in the UCC.
Section 1.3 Interpretation. The use of the masculine, feminine or neuter gender or the singular or plural form of words herein shall not limit any provision of this Agreement. The use of the terms “including” or “include” shall in all cases herein mean “including, without limitation” or “include, without limitation,” respectively. Reference to any Person includes such Person’s successors and assigns to the extent such successors and assigns are permitted by the terms of any applicable agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually. Reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof. Reference to any Applicable Law means such Applicable Law as amended, modified, codified, replaced or re-enacted, in whole or in part, and in effect on the date hereof, including rules, regulations, enforcement procedures and any interpretations promulgated thereunder. Underscored references to Articles, Sections, clauses, Exhibits or Schedules shall refer to those portions of this Agreement, and any underscored references to a clause shall, unless otherwise identified, refer to the appropriate clause within the same Section in which such reference occurs. The use of the terms “hereunder”, “hereof”, “hereto” and words of similar import shall refer to this Agreement as a whole and not to any particular Article, Section or clause of or Exhibit or Schedule to this Agreement.
ARTICLE II
CONTRIBUTION OF ASSETS; SALE AND PURCHASE OF ASSETS; ASSUMPTION OF ASSUMED OBLIGATIONS
Section 2.1 Transferred Assets. Subject to the terms and conditions of this Agreement, on the Transfer Date, TRIP Holdings shall sell, contribute, assign, convey, transfer and deliver to the Company, and the Company shall receive, accept and take assignment and delivery of (i) Transferred Railcars and (ii) Transferred Leases, and any and all Supporting Obligations, income, proceeds, rent and reserves related thereto and all other amounts payable but not yet (as of the Transfer Date) received in connection
3

therewith (including any and all income, rent and proceeds and all other such amounts due and owing but not yet received as of the Transfer Date (or which may become due and owing after the Transfer Date) whether or not relating to periods before or after the Transfer Date and all reserves, whether or not accrued to the Transfer Date) (collectively, the “Transferred Assets”).
Section 2.2 Consideration. On the Transfer Date, in exchange for the transfer and conveyance of the Transferred Assets by TRIP Holdings, the Company shall pay to TRIP Holdings the Purchase Price of such Transferred Assets (to consist of an amount equal to the fair market value of the related Railcars based on the Independent Appraisal) to be funded through a borrowing under the Loan Agreement (and, if available, from any retained earnings), and to the extent the Purchase Price is not paid in cash the remainder of the consideration in the amount of the Purchase Price for the Transferred Assets acquired by the Company from TRIP Holdings on such Transfer Date will be deemed to have been funded through capital contributed by TRIP to the Company.
Section 2.3 Agent to Hold Leases. Upon the Transfer Date, the Leases transferred on such date and related documentation shall be delivered by TRIP Holdings to TILC, as Servicer or its designee pursuant to the Loan Documents and shall be administered for the Company by TILC as Servicer under the Servicing Agreement, in each case subject to the security interest of the Collateral Agent for the benefit of the Lenders pursuant to the Security Agreement.
Section 2.4 Assumed Obligations. The Company shall assume, and agree to pay, perform, fulfill and discharge, the obligations of TRIP Holdings under each Transferred Lease (and each warranty, guarantee and Permit related to such Leases or the Railcars that are subject to such Leases) which are required to be performed, and which accrue, after the Transfer Date (but expressly excluded from such assumption and agreement are any and all liabilities and obligations of TRIP Holdings required to be paid or performed or arising prior to the Transfer Date), to the extent such Leases, warranties, guaranties and Permits, and all rights of TRIP Holdings thereunder, are effectively assigned to the Company pursuant to Sections 2.1 and 2.2 (the “Assumed Obligations”).
Section 2.5 TRIP Holdings Intent. It is the intention of TRIP Holdings that the transfer and assignment contemplated by this Agreement shall constitute a conveyance of ownership of the Transferred Assets from TRIP Holdings to the Company under applicable state law and that the beneficial interest in and title to the Transferred Assets shall not be part of TRIP Holdings’ estate in the event of the filing of a bankruptcy petition by or against TRIP Holdings under any bankruptcy law. In the event that, notwithstanding the intent of TRIP Holdings, the transfer and assignment contemplated hereby is held not to be a conveyance of ownership, (i) this Agreement shall constitute a grant of a security interest in the property referred to in this Section by TRIP Holdings for the benefit of the Company to secure the deemed repayment obligation associated with the deemed borrowing by TRIP Holdings in such circumstance and (ii) such grant of security shall continue without any interruption or limitation.
Section 2.6 Letter-of-Credit Rights. TRIP Holdings hereby assigns and conveys to the Company all of its beneficial interests in any letters of credit and all of its
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Letter-of-Credit Rights relating to the Transferred Leases, whether now existing or created in the future and whether possessed by TRIP Holdings on the Transfer Date or acquired by TRIP Holdings at any time thereafter.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRIP HOLDINGS
TRIP Holdings hereby makes the following representations and warranties for the benefit of the Lenders, the Agent, the Collateral Agent and the Company. Such representations and warranties are made as of the Transfer Date, but shall survive such assignment, transfer and conveyance of the Transferred Assets to the Company and its successors and assigns.
Section 3.1 Organization and Good Standing. TRIP Holdings is a limited liability company, duly incorporated, validly existing and in good standing under the laws of the State of Delaware, has all limited liability company powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and is duly qualified as a foreign corporation, licensed and in good standing in each jurisdiction where qualification or licensing is required by the nature of its business or the character and location of its property, business or customers and in which the failure to so qualify or be licensed or be in good standing, as the case may be, in the aggregate, could have a Material Adverse Effect.
Section 3.2 Power; Authorization; Enforceable Obligations. TRIP Holdings has the limited liability company or other necessary power and authority, and the legal right to execute, deliver and perform this Agreement and each other TRIP Holdings Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and each other TRIP Holdings Agreement. No consent or authorization of, filing with, notice to or other similar act by or in respect of, any Governmental Authority or any other Person is required to be obtained or made by or on behalf of TRIP Holdings in connection with the execution, delivery, performance, validity or enforceability of this Agreement and each other TRIP Holdings Agreement, except for (i) consents, authorizations, notices and filings disclosed in Schedule 5.02 to the Loan Agreement, all of which have been obtained or made and (ii) filings to perfect and maintain the perfection of Liens created by the Collateral Documents. Each TRIP Holdings Agreement has been duly executed and delivered on behalf of TRIP Holdings. Each TRIP Holdings Agreement constitutes a legal, valid and binding obligation of TRIP Holdings and is enforceable against TRIP Holdings in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by equitable principles of general applicability (regardless of whether enforcement is sought by proceedings in equity or at law).
Section 3.3 No Conflicts. Neither the execution and delivery by TRIP Holdings of this Agreement or each other TRIP Holdings Agreement, nor the consummation of the transactions contemplated herein or therein, nor performance of and compliance with the terms and provisions hereof or thereof by TRIP Holdings, nor the exercise of remedies by the Company under this Agreement and each other TRIP
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Holdings Agreement, will (i) violate or conflict with any provision of TRIP Holdings’ Organization Documents, (ii) violate, contravene or conflict with any Applicable Law, (iii) violate, contravene or conflict with any Contractual Obligation to which TRIP Holdings is a party or by which it may be bound, or (iv) result in or require the creation of any Lien upon or with respect to its properties (other than Liens created by the TRIP Holdings Agreements).
Section 3.4 No Litigation Pending. There are no proceedings pending or, to the knowledge of TRIP Holdings, threatened against TRIP Holdings in any court or before any Governmental Authority or arbitration board or tribunal which would affect adversely the ability of TRIP Holdings to perform its obligations under this Agreement or any other TRIP Holdings Agreement, nor is TRIP Holdings in default with respect to any order of any court or Governmental Authority or arbitration board or tribunal, the default under which would adversely affect the ability of TRIP Holdings to perform its obligations under or the enforcement ability of, this Agreement or any other TRIP Holdings Agreement.
Section 3.5 No Violation of Authority or Applicable Law. TRIP Holdings is not in violation of any term of any charter instrument, operating agreement or any other material agreement or instrument to which it is a party or by which it or its properties may be bound, except where non-compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. TRIP Holdings is in compliance with all Applicable Laws, ordinances, governmental rules and regulations to which it is subject, the failure to comply with which would have a material and adverse effect on its operations or condition, financial or otherwise, or would impair the ability of TRIP Holdings to perform its obligations under this Agreement or the other TRIP Holdings Agreements, and has obtained all licenses, permits, franchises and other governmental authorizations material to the conduct of its business.
Section 3.6 Bulk Sales Notice. TRIP Holdings has furnished all relevant parties with such notices required of it in a timely manner as are required under “bulk sale” laws of its state or any other relevant jurisdiction.
Section 3.7 Title. TRIP Holdings has conveyed to the Company good and marketable title to the Transferred Railcars and the Transferred Leases, free and clear of all Liens (other than Permitted Liens), and such conveyance is not void or voidable under any Applicable Law. All action necessary to convey to the Company all of TRIP Holdings’ right, title and interest in and to the Transferred Assets has been taken by TRIP Holdings. After and as of such conveyance, the Company shall be sole owner of such Railcars and Leases.
Section 3.8 Records. TRIP Holdings has caused its records to be marked to reflect the transfer of the Transferred Assets to the Company. TRIP Holdings has transferred the Transferred Assets to the Company which are intended to constitute sales, absolute assignments and conveyances of ownership thereof, such that such Railcars and related Leases would not be property of TRIP Holdings’ estate in the event of a bankruptcy of TRIP Holdings. The transfers are to be reflected on TRIP Holdings’ own balance sheet and other financial statements and/or internal records as transfers of ownership of such assts, consistent with GAAP (and for consolidated reporting purposes, TRIP Holdings’ financial statements will disclose, by footnote or otherwise,
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that ownership of such assets has been transferred to the Company). TRIP Holdings will respond to any third-party inquiry consistent with such characterization.
Section 3.9 Transfer Taxes. The sales, transfers, assignments and conveyances contemplated by this Agreement are not subject to and will not result in any tax, fee or governmental charge payable by TRIP Holdings to any governmental entity as a result of such event (“Transfer Taxes”) other than Transfer Taxes which have been or will be paid by TRIP Holdings as due. In the event that the Company receives actual notice of any Transfer Taxes arising out of such transfer, assignment and conveyance, on written demand by the Company, or upon TRIP Holdings’ otherwise being given notice thereof, TRIP Holdings shall pay, and otherwise indemnify and hold the Company, the Agent and the Lenders harmless, on an after-tax basis, from and against any and all such Transfer Taxes (it being understood that the Company, the Agent and the Lenders shall have no obligation to pay such Transfer Taxes).
Section 3.10 No Restrictions on Transfer. On the Transfer Date, all Railcars listed on Exhibit A to the Bill of Sale are free and clear of any restrictions on the sale, assignment or transfer thereof by TRIP Holdings.
Section 3.11 Broker’s Fees. No broker’s or finder’s or placement fee or commission is payable with respect to the transactions contemplated by this Agreement.
Section 3.12 Railcars. As of the Transfer Date, each Transferred Railcar (A) conforms with the specifications contained in each applicable Independent Appraisal, (B) has a Fair Market Value which is equal to the amount set forth in the Funding Package, (C) is marked with the railroad equipment number (also known as the running number) as noted on Exhibit A of the Bill of Sale, (D) has not been refurbished, modified or substantially rebuilt, excluding normal repairs in the ordinary course of maintenance, (E) is in good order and repair, ordinary wear and tear excepted, (F) is in compliance with all Applicable Laws (including applicable Interchange Rules of the AAR) governing the use and maintenance thereof, (G) is in material compliance with manufacturer’s warranties (to the extent such warranties are or should be then available other than due to the passage of time), and (H) is an Eligible Railcar.
Section 3.13 Marks. The railcar identification marks listed on Exhibit A to the Bill of Sale for each Railcar listed therein are the Marks used on such Railcars as of the Transfer Date, and each such Mark (to the extent constituting a Trinity Mark) is as of the Transfer Date owned of record by the Marks Company.
Section 3.14 Event of Loss. As of the Transfer Date, TRIP Holdings has not received any notice of the occurrence of any Event of Loss, or any event which with the passage of time would constitute an Event of Loss, with respect to any Transferred Railcar.
Section 3.15 Solvency. (i) Transfers of Transferred Railcars and Transferred Leases hereunder are made in good faith and not with the intent to hinder, delay or defraud any entity to which TRIP Holdings is or shall become indebted; and (ii) as of the time of such transfer, TRIP Holdings is Solvent, and TRIP Holdings will not cease to be Solvent as the result of such transfer.
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Section 3.16 Permits; etc. TRIP Holdings possesses all Permits, concessions and consents of or from all Governmental Authorities and agencies the absence of which in the aggregate would have a Material Adverse Effect.
Section 3.17 Leases. As of the Transfer Date,
(a)Each Transferred Lease provides for payment in Dollars.
(b)No default under any Transferred Lease has occurred which has been waived by any party thereto, and, to the best of TRIP Holdings’ knowledge, each party is in compliance with the terms of such Transferred Lease in all material respects.
(c)The Lessee under each Transferred Lease is (A) organized under the laws of the United States (or any state thereof or the District of Columbia), Canada (provincial or federal) or Mexico (state or federal) as a common carrier which is a “railroad” (as defined in the Bankruptcy Code), (B) a corporation, limited partnership or limited liability company (or analogous entity) organized under the laws of the United States (or any state thereof or the District of Columbia), Canada (provincial or federal) or Mexico (state or federal), or (C) a Lessee otherwise approved by the Agent in its sole discretion.
(d)All Applicable Laws in respect of each Transferred Lease have been complied with in all material respects and each Transferred Lease complies in all material respects with all Applicable Laws of the jurisdiction in which it was originated.
(e)Each Transferred Lease represents the legal, valid and binding obligation of the Lessee thereunder, enforceable against such Lessee in accordance with its terms (subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by equitable principles) and all parties to each Transferred Lease have the legal capacity to execute such Transferred Lease.
(f)Each Transferred Lease has not been satisfied, subordinated or rescinded and remains in full force and effect.
(g)No provision of any Transferred Lease has been waived, amended, or modified in any respect, except by instruments or documents, copies of which have been delivered to the Company and the Agent and, in any event, no Transferred Lease has been amended or modified since its origination to cure a non-payment thereunder, except as disclosed in accordance with Section 2.02(a) of the Loan Agreement.
(h)All payments under each Transferred Lease required to have been paid on or prior to the date hereof have been paid and the Lessee has not prepaid any payments for periods occurring after the date herein (except to the extent such amounts are being transferred to the Company hereunder).
(i)No proceedings or, to the best of TRIP Holdings’ knowledge, investigations, are pending, or have been threatened asserting the invalidity of any Transferred Lease, or seeking any determination or ruling that might adversely and materially affect the validity or enforceability of any Transferred Lease.
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(j)No Transferred Lease requires the consent of a Lessee that has not been obtained on or prior to the Transfer Date or contains any other restriction relating to the transfer or assignment of such Transferred Lease so as to adversely affect or prohibit the assignment of such Transferred Lease as contemplated hereby.
(k)With respect to any Transferred Lease for which TRIP Holdings collects maintenance payments, TRIP Holdings is not in default under any agreement with the applicable maintenance provider or the applicable Lessee related to maintenance payments due and owing on the Transfer Date to the applicable maintenance provider or the applicable Lessee, as the case may be.
(l)Any guarantees required at the time of origination of a Transferred Lease remain in full force and effect.
(m)The transfer and assignment to the Company of each Transferred Lease and TRIP Holdings’ right, title and interest in and to the subject Transferred Railcars will not violate the terms or provisions of such Transferred Lease or any other agreement to which TRIP Holdings then is a party or by which it is bound.
(n)Each Transferred Lease was originated or acquired by TRIP Holdings in the ordinary course of business. The origination and collection practices used by TRIP Holdings with respect to each Transferred Lease have been legal in all respects except where the failure to do so would not result in a material adverse effect on the collectability of such Transferred Leases.
(o)The Company and the Agent have been notified in writing (which notice shall describe the terms of any purchase option under a Transferred Lease) at the time of delivery of the Request and Funding Package of any Transferred Leases that contain purchase options. No Transferred Lease has been originated in or is subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof unlawful.
(p)The Lessee under each Transferred Lease has accepted the subject Transferred Railcars and, after reasonable opportunity to inspect and test, has not notified TRIP Holdings of any defects thereof.
(q)No event has occurred or act or thing has been done or omitted to be done by TRIP Holdings pursuant to which or as a result of which any Transferred Lease can be terminated or the obligations of any such party thereunder would be rendered invalid, illegal or unenforceable.
(r)TRIP Holdings has, or has caused to be, delivered to the Company (or to the Servicer) true and complete copies of each Transferred Lease and any and all material ancillary documents pertaining thereto (including, but not limited to, all amendments, consents and evidence of commencement dates and expiration dates).
(s)Each Transferred Lease is for the Railcars identified therein and each such Railcar is or will become, concurrently with such Transferred Lease, a Transferred Asset.
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(t)Each Transferred Lease is on rental and other terms which are no different, taken as a whole, than those for similar railcars owned, leased or managed by TRIP Holdings. Each Transferred Lease is substantially in the form of Exhibit J-1, J-2, J-3 or J-4 to the Loan Agreement, unless otherwise noted in the Funding Package and approved by the Agent.
(u)Each Transferred Lease is an Eligible Lease.
(v)Any letter of credit or Letter-of-Credit Right relating to each Transferred Lease names TRIP Holdings as the beneficiary of such letter of credit or Letter-of-Credit Right.
(w)Each Committed Lease is the subject of a binding agreement to lease and will constitute an Eligible Lease upon execution thereof.
Section 3.18 Marks Company Interest. As of the Transfer Date, TRIP Holdings has caused the Marks Company Interests with respect to the Trinity Marks on each Transferred Railcar bearing a Trinity Mark to be issued to the Company by the Marks Company.
Section 3.19 No Adverse Selection. In selecting Railcars and Leases to be transferred hereunder, TRIP Holdings has not selected Railcars and Leases in such a way which could reasonably be expected to be adverse to the interests of the Company, the Agent or the Lenders.
Section 3.20 Full Disclosure. (a) TRIP Holdings is not aware of any facts pertaining to the Transferred Railcars or the Transferred Leases which could reasonably be expected to result in a Material Adverse Effect which have not been disclosed to the Company and the Agent by TRIP Holdings in writing.
(b)No representation or warranty of TRIP Holdings in this Agreement, nor any statement or certificate furnished or to be furnished to the Company pursuant to this Agreement, or in connection with the transactions contemplated by this Agreement, contains or will contain any untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the statements contained herein or therein, in the light of the circumstances under which they were made, not misleading.
ARTICLE IV
COVENANTS OF TRIP HOLDINGS
TRIP Holdings hereby covenants and agrees for the benefit of the Company, the Agent and the Lenders to perform each of the following covenants.
Section 4.1 Implementing Agreement. Subject to the terms and conditions hereof, TRIP Holdings shall take all action required of it to fulfill its obligations under the terms of this Agreement and shall otherwise use all commercially reasonable efforts to facilitate the consummation of the transactions contemplated hereby. Except as otherwise expressly permitted hereby, TRIP Holdings agrees that it will not take any action that would have the effect of preventing or impairing TRIP Holdings’ performance of its obligations under this Agreement.
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Section 4.2 Consents and Approvals. TRIP Holdings shall obtain all consents, approvals, certificates and other documents required in connection with the performance by it of its obligations under this Agreement and the other TRIP Holdings Agreements and the consummation by it of the transactions contemplated hereby and thereby, including all such consents and approvals required in connection with any of the Transferred Leases and Permits. TRIP Holdings shall make, or cause to be made, all filings, notices, applications, statements and reports to all Governmental Authorities and other Persons that are required to be made prior to the Transfer Date by or on behalf of TRIP Holdings or any of its Affiliates pursuant to any Applicable Law or Transferred Lease in connection with this Agreement and the other TRIP Holdings Agreements and the transactions contemplated hereby and thereby and shall cooperate with the Company in making all such filings, notices, applications, statements and reports that are required to be made prior to the Transfer Date by or on behalf of the Company or any of its Affiliates pursuant to any Applicable Law in connection with this Agreement and the other TRIP Holdings Agreements and the transactions contemplated hereby and thereby.
Section 4.3 Notification of Breach. TRIP Holdings will advise the Company and the Agent promptly, in reasonable detail, upon discovery of the occurrence of any breach by TRIP Holdings of any of its representations, warranties and covenants contained herein.
Section 4.4 Taxes. TRIP Holdings shall promptly pay all Taxes required to be paid in connection with the sale and transfer of the Transferred Railcars and acknowledges that the Company shall have no responsibility with respect thereto. TRIP Holdings shall promptly pay and discharge, or cause the payment and discharge of, all federal income taxes and other material taxes of TRIP Holdings which could leave a Lien on the Transferred Railcars when due and payable by TRIP Holdings, except such as may be contested in good faith by appropriate proceedings and for which an adequate reserve has been established and is maintained in accordance with GAAP. TRIP Holdings shall promptly notify the Agent and the Lenders of any material challenge, contest or proceeding pending by or against TRIP Holdings before any taxing authority.
Section 4.5 Property Tax Reimbursement. TRIP Holdings shall reimburse Company for property Taxes paid or to be paid by the Company for any period arising out of ownership of the Transferred Railcars prior to the Transfer Date. TRIP Holdings shall make such reimbursement promptly upon payment by the Company of such Taxes.
Section 4.6 Notice and Acknowledgments. TRIP Holdings will (i) upon the effectiveness of the Depository Agreement and establishment of the Collection Account thereunder as contemplated in Section 6.13 of the Loan Agreement, and thereafter on or prior to the Transfer Date with respect to each Transferred Lease, notify the applicable Lessee that all payments thereunder shall thereafter be made to the Collection Account and (ii) on or prior to the Transfer Date with respect to each Transferred Lease, deliver to the Agent executed and undated notices of assignment in the form attached as Schedule E-4 to the Loan Agreement.
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Section 4.7 Transfer of Transferred Assets. TRIP Holdings understands that the Company intends to convey the Transferred Assets and its rights under this Agreement to the Agent on behalf of the Lenders pursuant to the Security Agreement. TRIP Holdings agrees that any such assignee of the Company may exercise the rights of the Company hereunder and shall be entitled to all of the benefits of the Company hereunder to the extent provided for in such assignment.
Section 4.8 No Bankruptcy Petition Against the Company. TRIP Holdings will not, prior to the date that is one year and one day after the payment in full of all amounts owing pursuant to the Transaction Documents, institute against the Company, or join any other Person in instituting against the Company, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of any applicable jurisdiction. This Section 4.8 shall survive the termination of this Agreement.
Section 4.9 Substantive Consolidation. TRIP Holdings will be operated in such a manner so that it would not be substantively consolidated with the Company, so that the separate existences of TRIP Holdings and the Company would not be disregarded in the event of a bankruptcy or insolvency of TRIP Holdings, and in such regard, among other things:
(a)TRIP Holdings will not be involved in the day-to-day management of the Company (although officers or employees of TRIP Holdings or its parent may serve as officers and/or directors of the Company);
(b)TRIP Holdings will maintain separate corporate records and books of account from the Company and otherwise will observe corporate formalities;
(c)TRIP Holdings will maintain its assets separately from the assets of the Company (including through the maintenance of a separate bank account), and TRIP Holdings’ assets, and records relating thereto, have not been, are not and will not be, commingled with those of the Company (except as may occur as a result of misdirected payments by Lessees);
(d)all of TRIP Holdings’ business correspondence and other communications will be conducted in TRIP Holdings’ own name and on its own respective stationery;
(e)TRIP Holdings will not act as an agent for the Company (except to the extent contemplated in the Transaction Documents);
(f)TRIP Holdings will not conduct any of the business of the Company in TRIP Holdings’ name;
(g)TRIP Holdings will not pay any liabilities of the Company, with the exception of certain fees prior to the Closing Date and as otherwise expressly provided in the Transaction Documents;
(h)TRIP Holdings will maintain an arm’s-length relationship with the Company;
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(i)TRIP Holdings will not assume or guarantee or become obligated for the debts of the Company or hold out its credit as being available to satisfy the obligations of the Company;
(j)TRIP Holdings will not acquire obligations of the Company;
(k)TRIP Holdings will allocate fairly and reasonably overhead or other expenses that are properly shared with the Company, including without limitation, shared office space;
(l)TRIP Holdings will identify and hold itself out as a separate and distinct entity from the Company;
(m)TRIP Holdings will correct any known misunderstanding regarding its separate identity from the Company;
(n)TRIP Holdings will not identify the Company as a division or part of itself;
(o)TRIP Holdings will not enter into, or be a party to, any other transactions with the Company except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party; and
(p)TRIP Holdings will not pay the salaries of the Company employees, if any.
Section 4.10 [Reserved].
Section 4.11 TRIP Holdings Purchase Obligation. Without limiting its rights to indemnification pursuant to Section 6.1, the Company shall have the right, at any time, to require TRIP Holdings to purchase any particular Transferred Railcars and the Transferred Leases effected hereunder if, as of the Transfer Date, any of TRIP Holdings’ representations, warranties, covenants or agreements contained in Article III with respect to the Transferred Railcars or the Transferred Leases are untrue or unperformed in any material respect (the “TRIP Purchase Obligation”). The TRIP Purchase Obligation may also be exercised by the Agent. Within thirty (30) days following notice by the Company or the Agent of its exercise of the TRIP Purchase Obligation under this Section 4.11, TRIP shall acquire the Transferred Assets subject of such TRIP Purchase Obligation from the Company for a purchase price equal to the Depreciated Appraised Value of such Transferred Assets, plus all costs and expenses, including, without limitation, interest, fees, and counsel expenses, incurred by the Company in connection with such Transferred Assets, by wire transfer in immediately available funds to the Collection Account and, upon receipt of such amounts in the Collection Account, the Company will transfer to TRIP the applicable Transferred Assets.
ARTICLE V
EFFECTIVENESS; DELIVERABLES
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Section 5.1 Effectiveness. The effectiveness of this Agreement is contingent upon each of the representations and warranties contained herein being true and correct and the satisfaction of the conditions set forth in Section 4.01 of the Loan Agreement or the waiver thereof by the Lenders.
Section 5.2 Deliverables. On the Transfer Date, TRIP Holdings shall deliver to the Company:
(a)a Bill of Sale covering each Transferred Railcar and each Transferred Lease;
(b)other instruments of transfer reasonably required by the Company to evidence the transfer of the Transferred Assets to the Company, duly executed by TRIP Holdings; and
(c)such other documents and instruments as may be required by any other provision of this Agreement or as may reasonably be required to consummate the transactions contemplated by this Agreement and the other TRIP Holdings Agreements, including, without limitation, such documents and instruments as may be required to be delivered to the Agent, the Lender or any designee thereof.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification. Whether or not the transactions contemplated hereby are consummated, TRIP Holdings agrees to indemnify, save and hold harmless the Company, the Agent, the Collateral Agent, each Lender, each Protected Party and their respective Affiliates, directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the “Indemnitees”) from and against (and without duplication of amounts payable or the provisions which relate to such payment under the other provisions of the other TRIP Holdings Agreements): (i) any breach of or inaccuracy in any representation or covenant made by TRIP Holdings in this Agreement or any other TRIP Holdings Agreement or in any certificate delivered pursuant thereto; (ii) any and all claims, demands, actions or causes of action that are asserted against any Indemnitee by any Person relating directly or indirectly to a claim, demand, action or cause of action that such Person asserts or may assert against TRIP Holdings, any Affiliate of TRIP Holdings or any of their respective officers or directors; (iii) any and all claims, demands, actions or causes of action that may at any time (including at any time following the effectiveness of this Agreement) be asserted or imposed against any Indemnitee, arising out of or relating to, any TRIP Holdings Agreement, any document contemplated hereby or thereby and payments made pursuant hereto or thereto or any transaction contemplated hereby or thereby or the exercise of rights and remedies hereunder or thereunder, any breach by TRIP Holdings of any TRIP Holdings Agreement, or the relationship of TRIP Holdings and the Company under this Agreement or any other TRIP Holdings Agreement; (iv) any administrative or investigative proceeding by any Governmental Authority arising out of or related to a claim, demand, action or cause of action described in clause (ii) or (iii) above; (v) any Environmental Liability relating to any Transferred Railcar or the use, operation or ownership thereof, whether by any Facility Party, any Lessee or any other Person; and
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(vi) any and all liabilities (including liabilities under indemnities), losses, costs or expenses (including fees and disbursements of counsel) that any Indemnitee suffers or incurs as a result of the assertion of any foregoing claim, demand, action, cause of action or proceeding, or as a result of the preparation of any defense in connection with any foregoing claim, demand, action, cause of action or proceeding, in all cases, and whether or not an Indemnitee is a party to such claim, demand, action, cause of action, or Proceeding (all the foregoing, collectively, the “Indemnified Liabilities”). THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY INDEMNITEE; provided that no Indemnitee shall be entitled to indemnification for any claim caused by its own gross negligence or willful misconduct; provided further, that no Indemnitee shall be entitled to indemnification for any claim arising solely out of (i) the bankruptcy, insolvency or other financial inability of one or more Lessees to make payments under a related Lease or (ii) the decline in market value of a Transferred Railcar, to the extent not attributable to the failure of a Facility Party to perform an obligation with respect to such Transferred Railcar under a Transaction Document. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 6.1 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by TRIP Holdings, its directors, shareholders or creditors or an Indemnitee or any other Person or any Indemnitee is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. TRIP Holdings agrees not to assert any claim against the Company, the Agent, the Collateral Agent, any of the Lenders, any of their respective Affiliates or any of their respective directors, officers, employees, attorneys, agents and advisers, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to this Agreement or any other TRIP Holdings Agreement, any of the transactions contemplated herein or therein. Without prejudice to the survival of any other agreement of TRIP Holdings hereunder and under the other TRIP Holdings Agreements, the agreements and obligations of TRIP Holdings contained in this Section 6.1 shall survive the termination of this Agreement and the other TRIP Holdings Agreements.
TRIP Holdings shall, no later than 10 days following demand, reimburse any Indemnitee for any Indemnified Liability referred to above or, upon request from any Indemnitee, shall pay such amounts directly. Any payment made to or on behalf of any Indemnitee pursuant to this Section 6.1 shall be adjusted to such amount as will, after taking into account all Taxes imposed with respect to the accrual or receipt of such payment (as the same may be increased pursuant to this sentence), equal the amount of the payment. To the extent that TRIP Holdings in fact indemnifies any Indemnitee pursuant to the provisions of this Section 6.1 (other than in respect of Taxes), TRIP Holdings shall be subrogated to such Indemnitee’s rights in the affected transaction and shall have a right to determine the settlement of claims therein.
If a claim of the type described above is made against an Indemnitee and such Indemnitee has notice thereof, such Indemnitee shall promptly, upon receiving such notice, give notice of such claim to TRIP Holdings; provided that the failure to provide such notice shall not release TRIP Holdings from any of its obligations hereunder except
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if and to the extent that such failure results in an increase TRIP Holdings’ indemnification obligations hereunder. TRIP Holdings shall be entitled, in each case at its sole cost and expense, acting through counsel reasonably acceptable to the relevant Indemnitee: (i) in any judicial or administrative proceeding that involves solely a claim of the type described above, to assume responsibility for and control thereof, (ii) in any judicial or administrative proceeding involving a claim of the type described above and other claims related or unrelated to the transactions contemplated by this Agreement or TRIP Holdings Agreement (other than with respect to Taxes), to assume responsibility for and control of such claim, to the extent that the same may be and is severed from such other claims (and such Indemnitee shall use its best efforts to obtain such severance), and (iii) in any other case, to be consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee. Notwithstanding anything in the foregoing to the contrary, TRIP Holdings shall not be entitled to assume responsibility for and control of any such judicial or administrative proceedings: (A) while a Default or Event of Default shall have occurred and be continuing; (B) if such proceedings will involve any risk of criminal liability or a material risk of the sale, forfeiture or loss of any part of the Collateral; or (C) to the extent that the Indemnitee has defenses available to it which are not available to TRIP Holdings and allowing TRIP Holdings to assert such defenses will be prejudicial to the interests of such Indemnitee; provided that the limitation on TRIP Holdings’ ability to control such judicial or administrative proceeding shall apply only to those aspects of such proceeding which address issues with respect to which such defenses are available.
The relevant Indemnitee shall supply TRIP Holdings with such information reasonably requested by TRIP Holdings as is necessary or advisable for TRIP Holdings to control or participate in any proceeding to the extent permitted by this Section 6.1. Such Indemnitee shall not enter into a settlement or other compromise with respect to any covered claim without the prior written consent of TRIP Holdings, which consent shall not be unreasonably withheld or delayed, unless such Indemnitee waives its right to be protected with respect to such covered claim.
Section 6.2 Right of Set Off. To the extent an Indemnified Party is entitled to indemnification hereunder, if the Indemnifying Party fails or refuse to promptly indemnify such Indemnified Party as provided herein then, in addition to any other rights or remedies available to the Indemnified Party, the Indemnified Party may offset the full amount to which the Indemnified Party is entitled against any payment or payments, if any, owed to the Indemnifying Party or its Affiliates pursuant to this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Expenses. TRIP Holdings shall pay on demand all out-of-pocket expenses incurred by the Company, the Agent (and its Affiliates), the Collateral Agent and the Lenders (including, without limitation, all reasonable attorneys’ fees and expenses of the Agent and the Lenders): (i) in connection with the preparation, execution, delivery, administration, modification and amendment of the TRIP Holdings Agreements including, without limitation, (A) due diligence, transportation, computer, duplication, audit, insurance, consultant, search, filing and recording fees and expenses and (B) the reasonable fees and expenses of counsel for the Company, the Agent and
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the Lenders with respect thereto, with respect to advising the Company, the Agent and the Lenders as to their rights and responsibilities, or the perfection, protection or preservation of rights and interests, under the TRIP Holdings Agreements and Transferred Leases and (ii) in connection with any amendment, refinancing, modification, supplement, or waiver under this Agreement or any of the other TRIP Holdings Agreements whether or not such amendment, refinancing, modification, supplement, interpretation or waiver is obtained or becomes effective.
In addition, TRIP shall pay on demand all reasonable out of pocket expenses (including, without limitation, reasonable attorneys’ fees and expenses and fees and expenses of any expert witnesses) incurred by the Company, the Agent and the Lenders in connection with the enforcement and protection of the rights of the Company, the Agent, the Collateral Agent and the Lenders under any of the TRIP Holdings Agreements and any amendments thereto and waivers thereof and any default by TRIP Holdings hereunder, including without limitation, the performance by the Company or the Agent of any act TRIP Holdings has covenanted to do under the TRIP Holdings Agreements to the extent TRIP Holdings fails to comply with any such covenant.
Unless specifically otherwise provided in the Loan Agreement, TRIP Holdings shall pay the costs and expenses of all Independent Appraisals.
Section 7.2 Notices and Other Communications. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be given in accordance with Section 11.01 of the Loan Agreement.
Section 7.3 Effectiveness of Electronic Documents and Signatures. This Agreement may be transmitted and/or signed by facsimile or e-mail. The effectiveness of any such documents and signatures shall, subject to requirements of Applicable Law, have the same force and effect as manually-signed originals and shall be binding on TRIP Holdings and the Company.
Section 7.4 Effect of Investigation. Any due diligence review, audit or other investigation or inquiry undertaken or performed by or on behalf of the Company shall not limit, qualify, modify or amend the representations, warranties or covenants of, or indemnities by, TRIP Holdings made or undertaken pursuant to this Agreement, irrespective of the knowledge and information received (or which should have been received) therefrom by the Company.
Section 7.5 Waivers. The failure of a party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a party of any condition or of any breach of any term, covenant, representation or warranty contained in this Agreement shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty.
Section 7.6 Amendment. This Agreement may be amended, modified or supplemented but only in writing signed by the Company and TRIP Holdings, and approved by the Agent (acting at the direction of the Required Lenders).
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Section 7.7 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no assignment of any rights or obligations shall be made by TRIP Holdings without the written consent of the Company and the Agent (acting at the direction of the Required Lenders) or, except pursuant to the Security Agreement and the other Loan Documents, by the Company without the written consent of TRIP Holdings and the Agent (acting at the direction of the Required Lenders).
Section 7.8 Assignment to Collateral Agent. It is understood that this Agreement and all rights of the Company hereunder will be collaterally assigned by the Company to the Collateral Agent for the benefit of the Protected Parties as provided in the Loan Documents. TRIP Holdings expressly agrees to such assignment and agrees that all of its duties, obligations, representations and warranties hereunder shall be for the benefit of, and, subject to the terms of the Loan Documents, may be enforced by, the Collateral Agent and any successor to or assignee of the rights of any thereof under the Loan Documents.
Section 7.9 Further Assurances. Upon the reasonable request of the Company, TRIP Holdings will on and after the Transfer Date execute and deliver to the Company such other documents, releases, assignments and other instruments and do all other things as may be required to effectuate completely the transfer and assignment to the Company of, and to vest fully in the Company title to, each of the Transferred Assets, and to otherwise carry out the purposes of this Agreement.
Section 7.10 Severability. Any provision of this Agreement and the other TRIP Holdings Agreements is a party that 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 thereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 7.11 Remedies Cumulative. The remedies provided in this Agreement shall be cumulative and shall not preclude the assertion or exercise of any other rights or remedies available under Applicable Law, in equity or otherwise.
Section 7.12 Entire Understanding. This Agreement set forth the entire agreement and understanding of the parties hereto with respect to the transactions contemplated hereby and supersede any and all prior agreements, arrangements and understandings among the parties relating to the subject matter hereof.
Section 7.13 Headings. The headings of the articles, sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
Section 7.14 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.
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Section 7.15 Survival of Representations and Warranties. All representations and warranties made hereunder or in any other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Company, regardless of any investigation made by the Company or on its behalf and notwithstanding that the Company may have had notice or knowledge of any default at the time of any transfer or conveyance hereunder or under the Bill of Sale.
Section 7.16 Governing Law; Submission to Jurisdiction. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of New York in New York County, or of the United States for the Southern District of New York and, by execution and delivery of this Agreement, TRIP Holdings hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the nonexclusive jurisdiction of such courts. TRIP Holdings irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such court and any claim that any such proceeding brought in any such court has been brought in an inconvenient forum.
Section 7.17 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO OR TO THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written.
TRIP RAILCAR CO., LLC


By: TRIP RAIL HOLDINGS LLC, its sole equity member and manager, by TRINITY INDUSTRIES LEASING COMPANY, its agent

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director
TRIP Rail Holdings LLC


by: TRINITY INDUSTRIES LEASING COMPANY, its agent

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director


Exhibit 10.5
Execution Version
$325,000,000
Trinity Rail Leasing 2021 LLC
Green Secured Railcar Equipment Notes, Series 2021-1
Class Principal Amount of Offered Notes Interest Rate
Class A………………………. $305,200,000 2.26%
Class B………………………. $19,800,000 3.08%
NOTE PURCHASE AGREEMENT
June 22, 2021
Wells Fargo Securities LLC
550 S. Tryon Street
Charlotte, NC 28202
BofA Securities, Inc.
One Bryant Park, 11th Floor
New York, NY 10036
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, NY 10019 		Citizens Capital Markets, Inc.
600 Washington Boulevard
Stamford, CT 06901
Credit Suisse Securities (USA) LLC Eleven Madison Avenue
New York, NY 10010 		PNC Capital Markets LLC
300 Fifth Ave. 10th Floor
Pittsburgh, PA 15222
Regions Securities LLC
1180 West Peachtree Street, NW
Suite 1400
Atlanta, GA 30309
Dear Ladies and Gentlemen:
1. Introductory. Trinity Rail Leasing 2021 LLC, a Delaware limited liability company (the “Issuer”) and a direct, wholly‑owned special purpose subsidiary of Trinity Industries Leasing Company (“TILC”), proposes, subject to the terms and conditions stated herein, to issue and sell to Wells Fargo Securities LLC (“Wells”), Credit Agricole Securities (USA) Inc., BofA Securities, Inc., Citizens Capital Markets, Inc., Credit Suisse Securities (USA) LLC, PNC Capital Markets LLC and Regions Securities LLC (each, an “Initial Purchaser” and collectively, the “Initial Purchasers”) U.S.$305,200,000 principal amount of its Series 2021-1 Class A Green Secured Railcar Equipment Notes (the “Class A Notes”), U.S.$19,800,000 principal amount of its Series 2021-1 Class B Green Secured Railcar Equipment Notes (the “Class B Notes” and, together with the Class A Notes, the “Offered Notes”), to be issued pursuant to the Master Indenture (the “Master Indenture”), as supplemented by the Series 2021-1 Supplement thereto (the “Series 2021-1 Supplemental Indenture” and, together with the Master Indenture, the “Indenture”), each to be dated on or about June 30, 2021, between the Issuer and U.S. Bank National Association, as indenture trustee (the “Trustee”). The United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder are herein referred to as the “Securities Act.” Capitalized terms used but not
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defined herein shall have the meanings given to such terms in the Offering Circular (as defined below).
2. Representations and Warranties of the Issuer and TILC. Each of the Issuer and TILC, jointly and severally, represents and warrants to, and agrees with, the Initial Purchasers that, as of the date hereof (unless otherwise indicated below):
(a) The Issuer has prepared a preliminary offering circular dated June 17, 2021 (the “Preliminary Offering Circular”), and the Issuer will prepare a final offering circular dated the date hereof (the “Offering Circular”), in each case relating to the Offered Notes to be offered by the Initial Purchasers. The Preliminary Offering Circular and the Offering Circular, together with any General Use Issuer Free Writing Communication (as hereinafter defined) and all amendments and supplements to such documents, are hereinafter collectively referred to as the “Offering Document”.
The Offering Document at a particular time means the Offering Document in the form actually amended or supplemented and issued at that time. “Final Offering Document” means the Offering Document that discloses the offering price and other final terms of the Offered Notes and is dated as of the date of this Note Purchase Agreement (this “Agreement”) (even if finalized and issued subsequent to the date of this Agreement). “General Disclosure Package” means the Preliminary Offering Circular, together with any General Use Issuer Free Writing Communications (as hereinafter defined) at the Applicable Time (as hereinafter defined) considered together with the offering price on the cover page of the Offering Circular and the information contained in Schedule D hereto. “Applicable Time” means 3:34 P.M. (New York time) on the date of this Agreement. As of its date and as of the Closing Date, the Final Offering Document will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. At the Applicable Time, neither (i) the Preliminary Offering Circular, (ii) the General Disclosure Package, nor (iii) any individual Limited Use Issuer Free Writing Communication (as hereinafter defined), when considered together with the General Disclosure Package, contained, nor as of the Closing Date will contain, any untrue statement of a material fact or omitted, or will omit, to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding two sentences do not apply to statements in or omissions from the Offering Document, the General Disclosure Package or any Limited Use Issuer Free Writing Communication (as hereinafter defined) based upon written information furnished to the Issuer or TILC by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Sections 8(b) hereof.
“Free Writing Communication” means a written communication (as such term is defined in Rule 405 under the Securities Act) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Notes and is made by means other than the Preliminary Offering Circular or the Offering Circular. “Issuer Free Writing Communication” means a Free Writing Communication prepared by or on behalf of, or authorized for distribution to investors by, the Issuer or TILC or used or referred to by the Issuer or TILC, in the form retained in the records of the Issuer or TILC. “General Use Issuer Free Writing Communication” means any Issuer Free Writing Communication that is intended for general distribution to prospective investors and is set forth on Schedule B hereto. “Limited Use Issuer Free Writing Communication” means any Issuer Free Writing Communication that is not a General Use Issuer Free Writing Communication and is set forth on Schedule C hereto.
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(b) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information (as hereinafter defined); and the Issuer is duly qualified to do business as a foreign limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(c) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; and TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(d) As of the Closing Date, the Indenture and each other Transaction Document (as defined in Section 5(d)) will have been duly authorized, executed and delivered by the Issuer or TILC, as the case may be; the Offered Notes have been duly authorized by the Issuer, and when the Offered Notes are duly authenticated by the Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Offered Notes will have been duly executed, authenticated, issued and delivered by the Issuer and each of the Indenture, each other Transaction Document and the Offered Notes will conform to the description thereof contained in the Final Offering Document and each of the Indenture and the other Transaction Documents (assuming the valid execution and delivery thereof by the other parties thereto) and the Offered Notes will constitute valid and legally binding obligations of the Issuer or TILC, as the case may be, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Except as contemplated by the Transaction Documents, no consent, approval, authorization, order of, filing with, or any other action by any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement or any Transaction Document in connection with the issuance of the Offered Notes and sale of the Offered Notes.
(f) The execution, delivery and performance of the Indenture, this Agreement and each other Transaction Document and the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof by the Issuer or TILC, as the case may be, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or conflict with, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Issuer or TILC or any of their respective properties, or (ii) any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC are subject, or (iii) the limited liability company agreement or certificate of formation of the Issuer or the certificate of incorporation or by‑laws of TILC. The Issuer has full power and authority to sell the Offered Notes as contemplated by this Agreement.
(g) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC.
(h) Except as disclosed in the General Disclosure Package, the Issuer has good and marketable title to all real properties and all other properties and assets owned by it,
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free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by it; and except as disclosed in the General Disclosure Package, the Issuer holds any leased real or personal property held by it under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by it.
(i) Each of the Issuer and TILC possesses all material certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it and has not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Issuer or TILC, as applicable, would individually or in the aggregate have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Issuer or TILC, as applicable, taken as a whole (“Material Adverse Effect”).
(j) Except as disclosed in the General Disclosure Package, neither the Issuer nor TILC is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “environmental laws”), nor owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off‑site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and neither the Issuer or TILC is aware of any pending investigation which might lead to such a claim.
(k) Except as disclosed in the General Disclosure Package, there are no pending actions, suits, proceedings or investigations against or affecting the Issuer or TILC or their respective properties that, if determined adversely to the Issuer or TILC, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform its obligations under the Indenture, this Agreement, or any other Transaction Document to which it is a party, or would seek to materially and adversely affect the federal income tax attributes of the Offered Notes, or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits, proceedings or investigations are threatened or, to the Issuer’s or TILC’s knowledge, contemplated.
(l) Since December 31, 2020, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in each case, other than as disclosed in the Offering Document, in the condition (financial or other), business, properties or results of operations of TILC and TILC’s subsidiaries taken as a whole.
(m) The Issuer is not, and is not controlled by, an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”) and, after giving effect to the offering and sale of the Offered Notes and the application of proceeds thereof as described in the Offering Document, will not be, and will not be controlled by, an “investment company” registered or required to be registered under the Investment Company Act. The Issuer will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act, although there may be additional exemptions or exclusions available to the Issuer. The Issuer is not relying on the exemptions set forth in Section 3(c)(1) or Section 3(c)(7) of the Investment
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Company Act. The Issuer does not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “Volcker Rule”.
(n) No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Offered Notes are listed on any national securities exchange registered under Section 6 of the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (“Exchange Act”) or quoted in a U.S. automated inter‑dealer quotation system. The securities are eligible for resale pursuant to Rule 144A under the Securities Act (“Rule 144A”). The General Disclosure Package contains, and the Offering Document will contain, all the information specified in and meeting the requirements of Rule 144A.
(o) No member of the “expanded group” (including any “controlled partnership” with respect thereto), if any, of which the Issuer is a member (or, in the event the Issuer is a disregarded entity for U.S. federal income tax purposes, of which the Issuer’s owner is a member or controlled partnership with respect thereto) has purchased, or is purchasing, any of the Offered Notes. For these purposes, “controlled partnership” and “expanded group” are defined in Treasury Regulation sections 1.385‑1(c)(1) and 1.385‑1(c)(4), respectively.
(p) Assuming the representations of the Initial Purchasers set forth in Section 4(a) and (b) are true and accurate, the offer, sale and delivery of the Offered Notes to the Initial Purchasers and to subsequent purchasers in the manner contemplated by this Agreement and the Offering Document will be exempt from the registration requirements of the Securities Act, and it is not necessary to qualify an indenture in respect of the Offered Notes under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(q) Neither the Issuer or TILC, or any of their respective affiliates, or any person acting on its or their behalf (other than the Initial Purchasers, as to whom no such representation is made) (i) has, within the six‑month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (“Regulation S”)) the Offered Notes or any security of the same class or series as the Offered Notes or (ii) has offered or will offer or sell the Offered Notes (A) in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S, by means of any directed selling efforts within the meaning of Rule 902(c) of Regulation S. The Issuer, TILC, and their respective affiliates and any person acting on its or their behalf (other than the Initial Purchasers, as to whom no such representation is made) have complied and will comply with the offering restrictions requirement of Regulation S. Neither the Issuer or TILC has entered and none will enter into any contractual arrangement with respect to the distribution of the Offered Notes except for this Agreement.
(r) The proceeds to the Issuer from the offering of the Offered Notes and the related transactions will not be used to purchase or carry any security (except as contemplated in Permitted Investments in respect of the Indenture Accounts).
(s) There is no “substantial U.S. market interest” as defined in Rule 902(j) of Regulation S in the Issuer’s debt securities.
(t) Except as contemplated in the applicable Engagement Letter (as defined below) and as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings between the Issuer or TILC and any person that would give rise
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to a valid claim against the Issuer or TILC, or any Initial Purchaser for a brokerage commission, finder’s fee or other like payment.
(u) On the Closing Date, the Issuer will own all of its right, title and interest in and to the Railcars, together with the related Leases thereon and certain other related assets specified therein, free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or other security interest (collectively, “Liens”), except to the extent permitted in the Indenture or any other Transaction Document, as applicable.
(v) As of the Closing Date, each of the representations and warranties of the Issuer or TILC set forth in each of the Transaction Documents to which they are parties will be true and correct in all material respects.
(w) Any taxes, fees and other governmental charges that would be incurred by reason of the execution and delivery of the Transaction Documents or the execution, delivery and sale of the Offered Notes and that would be due and payable as of the Closing Date have been or will be paid prior to the Closing Date.
(x) Each of the Issuer, TILC, and their respective subsidiaries and, to their knowledge, their respective affiliates, is in compliance, in all material respects, with (i) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto, and (ii) the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (the “USA Patriot Act of 2001”), as may be applicable to each of them. No part of the proceeds of the Offered Notes will be used by the Issuer, any subsidiary of the Issuer or any affiliate of the Issuer, directly or, to the knowledge of the Issuer, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of (i) the U.S. Foreign Corrupt Practices Act of 1977, as amended, or, as applicable (ii) the U.K. Bribery Act of 2010, as amended, or (iii) any other anti‑bribery or anti‑corruption laws, regulations or ordinances in any jurisdiction in which the Issuer or TILC is located or doing business (collectively, the “Anti‑Corruption Laws”).
(y) The operations of the Issuer, TILC and their respective subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”). The Issuer, TILC and their respective subsidiaries (i) have instituted, maintained and are complying with policies, procedures and controls reasonably designed to comply with all Anti‑Corruption Laws and Money Laundering Laws and are currently complying with, and will at all times comply with, all Anti‑Corruption Laws and Money Laundering Laws, and (ii) are not knowingly and have not been under administrative, civil or criminal investigation with respect to any Anti‑Corruption Laws or Money Laundering Laws or received written notice from or made a voluntary disclosure to any governmental entity regarding a possible violation by it of any Anti‑Corruption Laws or Money Laundering Laws. The Issuer, TILC and their respective subsidiaries will not fund any repayment of the Offered Notes in violation of any Anti‑Corruption Laws or Money Laundering Laws. No part of the proceeds of any Notes will be used by the Issuer, TILC or any of their respective subsidiaries or affiliates directly or to their knowledge, indirectly, in violation of any Anti‑Corruption Laws or Money Laundering Laws.
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(z) Neither the Issuer or TILC, any of their respective subsidiaries or, to the knowledge of the Issuer or TILC, any director, officer, agent, employee or affiliate of the Issuer or TILC or, to the knowledge of the Issuer or TILC, any of their respective subsidiaries (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), as amended by Executive Order 13886 of September 9, 2019 Modernizing Sanctions to Combat Terrorism (84 Fed. Reg. 48041 (2019)) (the “Executive Order”), or (ii) engages in any dealings or transactions with blocked persons prohibited by Section 2 of such Executive Order.
(aa) None of the Issuer or TILC, or any of their respective subsidiaries (x) is a person named on the list of “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) available at: https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists, or as otherwise published from time to time; (y) is (A) an agency of the government of a country, (B) an organization controlled by a country, or (C) a Person resident in a country that is subject to a sanctions program identified by OFAC and available at: https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country-information, or as otherwise published from time to time, as such program may be applicable to such agency, organization or person; or (z) derives more than 10% of its assets or operating income from investments in or transactions with any such country, agency, organization or Person. None of the proceeds from the Offered Notes will be used by the Issuer, TILC, or any of their respective subsidiaries or affiliates to finance any operations, investments or activities in, or make any payments to, any such country, agency, organization, or Person in violation of Sanctions.
(ab) None of the Issuer, TILC, or any of their respective subsidiaries or, to their knowledge, any of their respective affiliates (i) is a Sanctioned Person (as hereinafter defined), (ii) is controlled by, or is acting on behalf of, a Sanctioned Person, (iii) is knowingly under investigation for an alleged breach of Sanction(s) by the government authority that enforces Sanctions (as hereinafter defined), (iv) will use the proceeds of any Offered Note for the purpose of providing financing to, or otherwise making funds directly or indirectly available to, any Sanctioned Person, or providing financing to or otherwise funding any transaction which would be prohibited by any applicable Sanction or, to the knowledge of the Issuer or TILC, would otherwise cause the Indenture Trustee, any Noteholder or any party to this Agreement or any entity affiliated with any such party, to be in violation of any applicable Sanction, (v) will fund any repayment of the Offered Notes with proceeds derived from any transaction that would be prohibited by applicable Sanctions or, to the knowledge of the Issuer or TILC, would otherwise cause the Indenture Trustee, any Noteholder or any party to this Agreement, to their knowledge, to be in violation of any applicable Sanction, and (vi) will fail to notify the Indenture Trustee and the Initial Purchasers in writing not more than five (5) Business Days after becoming aware of any breach of this clause (bb).
For purposes of this Agreement, a “Sanction” means any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by a Sanctions Authority.
“Sanctions Authority” means (a) the United States Government, (b) the United Nations Security Council, (c) the European Union, (d) the United Kingdom, (e) the Swiss Secretariat of Economic Affairs, (f) the governments, official institutions or agencies and other relevant sanctions authorities of any of the foregoing in clauses (a) through (e), including
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OFAC, the US Department of State, and Her Majesty’s Treasury or (g) any other governmental authority with jurisdiction over the Issuer, TILC, any of their affiliates or, to the knowledge of the Issuer, TILC, the Indenture Trustee or the Initial Purchasers.
“Sanctioned Person” means (a) any Person that is listed on, or owned or controlled by a Person listed on (or a Person acting on behalf of such a Person) (i) the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists or as otherwise published from time to time, the “Sectoral Sanctions Identifications” list maintained by OFAC available at https://home.treasury.gov/policy-issues/financial-sanctions/consolidated-sanctions-list/sectoral-sanctions-identifications-ssi-list or as otherwise published from time to time, or the “Foreign Sanctions Evaders” list maintained by OFAC available at https://home.treasury.gov/policy-issues/financial-sanctions/consolidated-sanctions-list/foreign-sanctions-evaders-fse-list or as otherwise published from time to time, (ii) the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by Her Majesty’s Treasury or (iii) any similar list maintained by, or public announcement of a Sanctions designation made by, a Sanctions Authority having jurisdiction over the Issuer or TILC, each as amended, supplemented or substituted from time to time; or (b) (i) an agency of the government of a Sanctioned Jurisdiction, (ii) an organization directly or indirectly controlled by a Sanctioned Jurisdiction or (iii) a Person resident in (or organized under the laws of) a Sanctioned Jurisdiction (to the extent subject to a Sanctions program administered by OFAC, the European Union or the United Nations), or (iv) a Person who is owned or controlled by, or acting on behalf of such a Person.
“Sanctioned Jurisdiction” means any country or territory to the extent that the government of such country or territory is the subject of Sanctions consisting of a general embargo imposed by any Sanctions Authority.
(ac) The operations of the Issuer and TILC and their respective subsidiaries are and have been conducted at all times in material compliance with the USA Patriot Act of 2001, as amended, and the rules and regulations thereunder.
(ad) In connection with any rating for the Offered Notes, the Issuer has provided to each rating agency rating the Offered Notes a written representation that satisfies the requirement of paragraph (a)(3)(iii) of Rule 17g‑5 under the Exchange Act (“Rule 17g‑5”). The Issuer has complied, and as of the Closing Date, the Issuer will comply, in all material respects with the representations, certifications and covenants made by the Issuer to S&P and KBRA (the “Hired NRSROs”) in connection with the engagement of the Hired NRSROs to issue and monitor a credit rating on the Offered Notes, including any representation provided to the Hired NRSROs by the Issuer in connection with Rule 17g‑5, and has made accessible, via a password‑protected internet website established and maintained by TILC, to any non‑hired nationally recognized statistical rating organization, as contemplated by Rule 17g‑5, all information provided to the Hired NRSROs in connection with the issuance and monitoring of the credit ratings on the Offered Notes in accordance with Rule 17g‑5. The Issuer shall be solely responsible for compliance with Rule 17g‑5 in connection with the issuance, monitoring and maintenance of the credit rating on the Offered Notes. The Initial Purchasers are not responsible for compliance with any aspect of Rule 17g‑5 in connection with the Offered Notes.
(ae) TILC engaged independent accountants for the purpose of delivering the Independent Accountants’ Report on Applying Agreed-Upon Procedures, dated on or about June 30, 2021 (such independent accountants, the “Accountants”, and such report, the
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“Report”), and the only report generated as a result of such engagement is the Report. Neither the Issuer nor TILC has engaged any third-party due diligence services providers to provide any services that would be “due diligence services” (as defined in Rule 17g-10(d)(1) under the Exchange Act) were the Offered Notes subject to such Rule.
(af) [Reserved].
(ag) The requirements imposed on the “sponsor of a securitization transaction” in accordance with the final rules contained in Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”) implementing the credit risk retention requirements of Section 15G of the Exchange Act, do not apply to TILC, as sponsor or the transaction the subject of the Offered Notes.
3. Purchase, Sale and Delivery of Offered Notes. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Issuer agrees to sell to the Initial Purchasers, severally and not jointly, and each Initial Purchaser agrees severally and not jointly to purchase from the Issuer, at a purchase price of 99.19241% of the principal amount of the Class A Notes and 99.18610% of the principal amount of the Class B Notes, the principal amount of Offered Notes set forth opposite the name of such Initial Purchaser in Schedule A hereto.
(b) The Issuer will deliver against payment of the purchase price the Offered Notes to be offered and sold by the Initial Purchasers in reliance on Regulation S (the “Regulation S Notes”), each in the form of one or more permanent global notes in registered form without interest coupons (the “Regulation S Global Notes”) which will be deposited with the Trustee as custodian for Cede & Co., as nominee of The Depository Trust Company (“DTC”) for the respective accounts of the DTC participants for Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream, Luxembourg”) and registered in the name of Cede & Co., as nominee for DTC. The Issuer will deliver against payment of the purchase price the Offered Notes to be purchased by the Initial Purchasers hereunder and to be offered and sold by the Initial Purchasers in reliance on Rule 144A under the Securities Act (the “144A Notes”), each in the form of one permanent global note in definitive form without interest coupons (the “Restricted Global Note”) deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as nominee for DTC. The Regulation S Global Notes and the Restricted Global Note shall be assigned separate CUSIP numbers. The Global Notes shall include the legend regarding restrictions on transfer set forth under “Transfer Restrictions” in the Final Offering Document. Until the termination of the distribution compliance period (as defined in Regulation S) with respect to the offering of the Offered Notes, interests in the Regulation S Global Notes may only be held by the DTC participants for Euroclear and Clearstream, Luxembourg. Interests in any permanent Global Notes will be held only in book‑entry form through Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the limited circumstances described in the Final Offering Document.
Payment for the Regulation S Notes and the 144A Notes shall be made by each Initial Purchaser in Federal (same day) funds by or wire transfer to an account at a bank acceptable to it, on June 30, 2021, or at such other time not later than seven full business days thereafter as the Initial Purchasers and the Issuer determine, such time being herein referred to as the “Closing Date”, against delivery to the Trustee as custodian for DTC of (i) the Regulation S Global Notes representing all of the Regulation S Notes for the respective accounts of the DTC participants for Euroclear and Clearstream, Luxembourg and (ii) the Restricted Global Note representing all of the 144A Notes. The Regulation S Global Notes and
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the Restricted Global Note will be made available for checking at the office of Vedder Price P.C., 1633 Broadway, New York, New York 10019, at least 24 hours prior to the Closing Date.
(c) The Issuer agrees to pay each Initial Purchaser for its own account all fees and expenses as provided in the applicable engagement letter, fee letter or other written correspondence, dated or communicated on or about the date hereof, among the Issuer, TILC and the applicable Initial Purchaser (each, an “Engagement Letter”).
4. Representations by Initial Purchasers; Resale by Initial Purchasers. (a) Each Initial Purchaser severally represents and warrants to the Issuer that it is an “accredited investor” within the meaning of Regulation D under the Securities Act.
(b) Each Initial Purchaser severally acknowledges that the Offered Notes have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S or pursuant to an exemption from the registration requirements of the Securities Act. Each Initial Purchaser severally represents and agrees that it has offered and sold the Offered Notes, and will offer and sell the Offered Notes (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly, none of the Initial Purchasers nor its affiliates, nor any persons acting on its behalf or their behalf, has engaged or will engage in any directed selling efforts with respect to the Offered Notes, and such Initial Purchaser, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirement of Regulation S. Each Initial Purchaser severally agrees that, at or prior to confirmation of sale of the Offered Notes, other than a sale pursuant to Rule 144A, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases the Offered Notes from it during the restricted period a confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meanings given to them by Regulation S.”
Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Initial Purchaser severally agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement (other than any agreement among the Initial Purchasers) with respect to the distribution of the Offered Notes except with the prior written consent of the Issuer.
(d) Each Initial Purchaser severally agrees that it and each of its affiliates will not offer or sell the Offered Notes in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act, including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Initial Purchaser severally agrees, with respect to resales made in
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reliance on Rule 144A of any of the Offered Notes, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered Notes has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
(e) Each Initial Purchaser severally agrees that it and each of its affiliates will not communicate or cause to be communicated the Offering Document in Canada or to any resident of Canada and understands that any Canadian residents may not, directly or indirectly, purchase the Offered Notes or any beneficial interest therein from such Initial Purchaser.
(f) Each Initial Purchaser severally represents and agrees that (i) with respect to any oral communications regarding Rating Information with the Hired NRSROs which are initiated by the Hired NRSROs or arranged by such Initial Purchaser in connection with the issuance or monitoring of a credit rating on the Offered Notes, such Initial Purchaser (A) has referred and will refer such oral communication to the Issuer to respond to the Hired NRSROs or (B) has invited and will invite the Issuer to participate in such oral communication and (ii) any communication (other than oral communications) regarding Rating Information or delivery of Rating Information to the Hired NRSROs has been and will immediately be disclosed to the Issuer for the purpose of allowing the Issuer to make accessible to any non‑hired nationally recognized statistical rating organization all Rating Information provided to the Hired NRSROs in connection with the issuance and monitoring of the credit rating on the Offered Notes in accordance with Rule 17g‑5. “Rating Information” means any information provided to the Hired NRSROs for the purpose of (A) determining the initial credit rating for the Offered Notes, including information about the characteristics of the Railcars, related property and the legal structure of the Offered Notes, and (B) undertaking credit rating surveillance on the Offered Notes, including information about the characteristics and performance of the Railcars and related property.
(g) Each Initial Purchaser severally represents and agrees that (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (as amended, the “FSMA”)) received by it in connection with the issue or sale of any Offered Notes in circumstances in which section 21(1) of the FSMA does not apply to the Issuer; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Offered Notes in, from or otherwise involving the United Kingdom.
(h) Each Initial Purchaser severally represents and agrees that that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Offered Notes to any EU Retail Investor in the European Economic Area or any UK Retail Investor in the United Kingdom. For the purposes of this provision, (i) the expression “EU Retail Investor” means a person who is one (or more) of the following: (A) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”), (B) a customer within the meaning of Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (C) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended), (ii) the expression “UK Retail Investor” means a person who is one (or more) of the following: (A) a retail client, as defined in point (8) of Article 2 of Commission Delegated Regulation (EU) No 2017/565 as it forms part of domestic law of the UK by virtue of the European Union Withdrawal Act 2018 (as amended, the “EUWA”) and as amended; (B) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to
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implement Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of UK domestic law by virtue of the EUWA, and as amended; or (C) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129, as it forms part of UK domestic law by virtue of the EUWA and as amended and (iii) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Offered Notes.
5. Certain Agreements of the Issuer and TILC. The Issuer and TILC jointly and severally agree with the Initial Purchasers that:
(a) The Issuer will advise the Initial Purchasers promptly of any proposal to amend or supplement the Offering Document and will not effect any such amendment or supplementation without the consent of the Initial Purchasers. If, at any time following delivery of any document included in the Offering Document or any Limited Use Issuer Free Writing Communication and prior to the completion of the resale of the Offered Notes by the Initial Purchasers, there occurs an event or development as a result of which such document included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time not misleading, or if it is necessary at any such time to amend or supplement the Offering Document or any Limited Use Issuer Free Writing Communication to comply with any applicable law, the Issuer will promptly notify the Initial Purchasers of such event and will promptly prepare, at its own expense, an amendment or supplement which will correct such statement or omission. Neither the Initial Purchasers’ consent to, nor the delivery by the Initial Purchasers to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7. The first sentence of this subsection does not apply to statements in or omissions from any document in the General Disclosure Package or any Limited Use Issuer Free Writing Communication in reliance upon and in conformity with written information furnished to the Issuer or TILC by the Initial Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Sections 8(a) and 8(b) hereof.
(b) The Issuer will furnish to each Initial Purchaser copies of each document comprising a part of the Offering Document and each Limited Use Issuer Free Writing Communication, in each case as soon as available and in such quantities as such Initial Purchaser requests, and the Issuer will furnish to each Initial Purchaser on the date hereof three (3) copies of each document comprising a part of the Offering Document and each Limited Use Issuer Free Writing Communication signed by a duly authorized officer of the Issuer, one of which will include the independent accountants’ reports in the Offering Document manually signed by such independent accountants. At any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, the Issuer will promptly furnish or cause to be furnished to the Initial Purchasers and, upon request of holders and prospective purchasers of the Offered Notes, to such holders and purchasers, copies of the information (the “Additional Issuer Information”) required to be delivered to holders and prospective purchasers of the Offered Notes in accordance with Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Notes. TILC will pay the expenses of printing and distributing to the Initial Purchasers all such documents. Any Additional Issuer Information delivered to any holders and prospective purchasers of the Offered Notes will not contain any untrue statement
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of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) The Issuer will arrange for the qualification of the Offered Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as the Initial Purchasers designate and will continue such qualifications in effect so long as required for the resale of the Offered Notes by the Initial Purchasers, provided that the Issuer will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction.
(d) So long as the Offered Notes are outstanding, if not filed electronically with the Securities and Exchange Commission (the “Commission”) or posted on the website of TILC, the Issuer will furnish to the Initial Purchasers (i) as soon as available, copies of each report furnished to the Issuer or any of its affiliates, in the case of the Issuer, pursuant to any Operative Agreement (collectively, the “Transaction Documents”), by first class mail as soon as practicable after such reports are furnished to the Issuer or any of its affiliates or shareholders, as the case may be, (ii) copies of each amendment to any of the Transaction Documents, (iii) copies of all reports and other communications (financial or other) furnished to the Trustee under the Indenture or to holders of the Offered Notes, and copies of any reports and financial statements, if any, furnished to or filed with the Commission, any governmental or regulatory authority or any national securities exchange, and (iv) from time to time such other information as the Initial Purchasers may reasonably request relating to the Issuer or TILC, or any of their respective affiliates, the Offered Notes and the Transaction Documents. TILC and the Issuer shall make their officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers.
(e) During the period of three (3) years after the Closing Date, the Issuer will, upon request, furnish to the Initial Purchasers and any holder of Offered Notes a copy of the restrictions on transfer applicable to the Offered Notes.
(f) During the period of two (2) years after the Closing Date none of the Issuer and TILC will, or will permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Notes that have been reacquired by any of them.
(g) The Issuer or TILC will pay all expenses incidental to the performance of their respective obligations under this Agreement, including but not limited to: (i) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Notes, the preparation and printing of this Agreement, the Offered Notes, the documents comprising any part of the Offering Document, each Limited Use Issuer Free Writing Communication and any other document relating to the issuance, offer, sale and delivery of the Offered Notes; (ii) the cost of any advertising approved by the Issuer or TILC in connection with the issue of the Offered Notes; (iii) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Notes for sale under the laws of such jurisdictions in the United States as the Initial Purchasers designate and the printing of memoranda relating thereto; (iv) any fees charged by the Hired NRSROs for the rating of the Offered Notes and charged by the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture; and (v) expenses incurred in distributing the documents comprising any part of the Offering Document (including any amendments and supplements thereto) and any Limited Use Issuer Free Writing Communications to the Initial Purchasers or to prospective purchasers of the Offered Notes. The Issuer and TILC jointly and severally will also pay or reimburse the Initial Purchasers (to the extent incurred by them) for all travel expenses of the Initial Purchasers’, the Issuer’s,
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TILC’s officers and employees and any other expenses of the Initial Purchasers, the Issuer or TILC in connection with attending or hosting meetings with prospective purchasers of the Offered Notes from the Initial Purchasers. In addition to the foregoing, but without duplication, the Issuer or TILC will pay to each Initial Purchaser on the Closing Date the amounts in respect of its costs and expenses as set forth in the applicable Engagement Letter as reimbursement of such Initial Purchaser’s other expenses, including fees and disbursements of legal counsel retained by the Initial Purchasers consistent with prior approvals of TILC.
(h) In connection with the offering and the sale of the Offered Notes, until the Initial Purchasers shall have notified the Issuer, TILC and the other Initial Purchasers of the completion of the resale of the Offered Notes, neither the Issuer nor TILC or any of their respective affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Notes or attempt to induce any person to purchase any Offered Notes; and neither the Issuer nor TILC or any of their respective affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Notes.
(i) For a period of 90 days, with respect to the Issuer, and 45 days, with respect to TILC, after the date of the Offering Circular, neither the Issuer nor TILC will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any United States dollar‑denominated asset‑backed debt securities issued, sponsored or guaranteed by the Issuer, TILC or any of their respective affiliates and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Initial Purchasers. Neither the Issuer nor TILC will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Notes.
(j) The Issuer, TILC or any of their respective affiliates, or any person acting on its or their behalf (other than the Initial Purchasers, as to which no agreement is being made pursuant to this clause (j)), shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security that would be integrated with the offer or sale of the Offered Notes in a manner that would require the registration under the Securities Act of the sale of the Offered Notes or that would be integrated with the offer or sale of the Offered Notes for purposes of the rules and regulations of any trading market.
(k) The Issuer and TILC (the “Indemnitors”) jointly and severally will indemnify and hold harmless the Initial Purchasers against any documentary, stamp or similar issuance tax, including any interest and penalties, on the creation and issuance of the Offered Notes, and on the sale of the Offered Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer or TILC under this Agreement shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Issuer or TILC is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer or TILC, as applicable, shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made; provided that the Indemnitors will not be required to indemnify or gross‑up for such taxes and withholdings to the extent imposed as a result of a failure of such Initial Purchaser to provide any duly executed and completed form or document
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described in the last sentence of this paragraph upon the execution of this Agreement or to be delivered thereafter upon the reasonable request of its Indemnitors which evidences such Initial Purchaser’s entitlement to a complete exemption for such taxes and withholdings. Furthermore, the Indemnitors hereby request that each Initial Purchaser hereby provides to them IRS Form W‑9 or IRS Form W‑8BEN, W‑8BEN‑E, W‑8IMY or W‑8ECI, whichever is applicable, to the extent not already provided.
(l) To the extent, if any, that the rating provided with respect to the Offered Notes by the Hired NRSROs is conditional upon the furnishing of documents or the taking of any other action on or prior to the Closing Date by the Issuer or TILC, the Issuer or TILC, as the case may be, shall use its reasonable best efforts to promptly furnish such documents and take any other such action on or prior to the Closing Date.
(m) The cash proceeds of the Offered Notes, together with any necessary capital contribution made by TILC to the Issuer, will be used by the Issuer as follows: (i) to add funds to the Collections Account in connection with the issuance of the Offered Notes, if necessary to assure sufficient funds are available for payments on the first Payment Date; (ii) to pay certain costs of issuance; and (iii) to fund cash payments to TILC and Trinity Rail Leasing Warehouse Trust (“TRLWT”) as the purchase price for the Issuer’s acquisition of the Railcars from TILC and TRLWT, at a price equal to the Railcars’ Initial Appraised Value.
(n) The Issuer will comply with the representation made by the Issuer to each Hired NRSRO pursuant to paragraph (a)(3)(iii) of Rule 17g‑5.
6. Free Writing Communications. (a) Each of the Issuer and TILC, jointly and severally, represents and agrees that, without the prior consent of the Initial Purchasers, and each Initial Purchaser severally represents and agrees that, without the prior consent of TILC and the Initial Purchasers, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Communication. Any such Issuer Free Writing Communication consented to by TILC and the Initial Purchasers is hereinafter referred to as a “Permitted Free Writing Communication.” The parties hereto agree that the Issuer Free Writing Communications listed on Schedules B and C hereto are each Permitted Free Writing Communications.
(b)To the extent it would be an Issuer Free Writing Communication, each of the Issuer and TILC consents to the use by the Initial Purchaser of a Free Writing Communication that (a) contains only information describing the preliminary or final terms of the Offered Notes or the offering thereof, and (b) does not contain any material information about the Issuer or TILC or the securities of any of them that was provided by any of the Issuer and TILC or on behalf of any of them. Any such Free Writing Communication is a Permitted Free Writing Communication for purposes of this Agreement.
7. Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties herein on the part of the Issuer and TILC, to the accuracy of the statements of officers of the Issuer and TILC made pursuant to the provisions hereof, to the performance by each of the Issuer and TILC of its obligations hereunder and to the following additional conditions precedent on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received from a third party that is a nationally recognized accounting firm reasonably satisfactory to the Initial Purchasers a letter or letters, in the form heretofore agreed to regarding the Preliminary
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Offering Circular and Offering Circular, each dated as of the review date or the date of the Preliminary Offering Circular or Offering Circular, as applicable.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Issuer or TILC and its subsidiaries taken as one enterprise which, in the judgment of the Initial Purchasers or any of their affiliates, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Notes; (ii) any downgrading in the rating of any debt securities of TILC by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of TILC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by such organization that the Issuer or TILC has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions (including, but not limited to, as the result of the outbreak or increase in severity of any pandemic) or currency exchange rates or exchange controls as would, in the judgment of the Initial Purchasers or any of their affiliates, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading, or maximum ranges for prices for securities have been required, on such exchange; (v) any suspension of trading of any securities of the Issuer or TILC or any of its affiliates on any exchange or in the over‑the‑counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Initial Purchasers or any of their affiliates, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Notes.
(c) The Initial Purchasers shall have received opinions, dated the Closing Date, of (i) Vedder Price P.C., counsel for the Issuer, (ii) the Secretary of TILC, and (iii) such other law firms acceptable to the Initial Purchasers and their counsel, to the effect that:
(i) The Issuer has been duly formed and is a validly existing limited liability company in good standing under the laws of the state of Delaware, with power and authority (as a limited liability company and otherwise) to own its properties and conduct its business as described in the General Disclosure Package or Additional Issuer Information;
(ii) (A) TILC has been duly incorporated and is a validly existing corporation in good standing under the laws of the state of Delaware, with power and authority (as a corporation and otherwise) to own its properties and conduct its business as described in the General Disclosure Package; TILC is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party, and (B) TRLWT is a statutory trust duly
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formed, validly existing and in good standing under the Delaware Statutory Trust Act, with power and authority to own its properties and to conduct its business as described in the General Disclosure Package;. TRLWT is duly qualified to do business as a foreign trust in good standing in any jurisdiction other than the State of Delaware in which its ownership or lease of property or the conduct of its business requires such qualification if the failure to be so qualified would materially and adversely affect its ability to perform its obligations under the Transaction Documents to which it is a party;
(iii) The Indenture and the other Transaction Documents have been duly authorized, executed and delivered by the Issuer or TILC, as applicable; the Offered Notes have been duly authorized, executed, authenticated, issued and delivered and conform to the description thereof contained in the Final Offering Document; and each Transaction Document with respect to which it is a party, constitutes a valid and legally binding obligation of the Issuer or TILC, as applicable, enforceable against the Issuer or TILC, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Indenture creates a valid lien upon all of the Collateral (as defined in the Indenture) as granted under the Indenture and subject to the lien thereof, subject only to the exceptions referred to in the Indenture, and will create a similar lien upon all properties and assets that become part of the Collateral after the date of such opinion and required to be subjected to the lien of the Indenture, subject only to the exceptions referred to in the Indenture; the Trustee for the benefit of the holders of the Offered Notes from time to time will have, upon the filing of certain financing statements, a perfected security interest in the Collateral;
(v) The Issuer is not and, after giving effect to the offering and sale of the Offered Notes and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act and will not constitute a “covered fund” for purposes of the banking regulations adopted under Section 13 of the Bank Holding Company Act of 1956, as amended, commonly known as the “Volcker Rule”;
(vi) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance of the Offered Notes or sale of the Offered Notes, except for security interest filings contemplated by the Transaction Documents and except such as may be required under state securities laws;
(vii) There are no pending actions, suits or proceedings against or affecting the Issuer, TILC or any of their respective subsidiaries, or any of their respective properties that, if determined adversely to the Issuer, TILC or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuer or TILC to perform their respective obligations under the Indenture, this Agreement, or any other Transaction Document or which are otherwise material in the context of the sale of the Offered Notes; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated;
(viii) The execution, delivery and performance of the Indenture, the other Transaction Documents to which the Issuer or TILC is a party, and this Agreement and
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the issuance of the Offered Notes and sale of the Offered Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer, TILC, or any of their properties, or any agreement or instrument to which the Issuer or TILC is a party or by which the Issuer or TILC is bound or to which any of the properties of the Issuer or TILC is subject, or the organizational or formation documents of the Issuer or TILC, and the Issuer has full power and authority to authorize, issue and sell the Offered Notes as contemplated by this Agreement;
(ix) Such counsel have no reason to believe that (i) the Preliminary Offering Circular or (ii) the Final Offering Document, or any amendment or supplement thereto, as of the Applicable Time and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading; and such counsel have no reason to believe that the information specified in a schedule, if any, to such counsel’s letter, which information, when taken together with the Preliminary Offering Circular, will comprise the General Disclosure Package, as of the Applicable Time and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading;
(x) This Agreement has been duly authorized, executed and delivered by each of the Issuer and TILC;
(xi) It is not necessary in connection with (i) the offer, sale and delivery of the Offered Notes by the Issuer to the Initial Purchasers pursuant to this Agreement, or (ii) the resales of the Offered Notes by the Initial Purchasers in the manner contemplated by this Agreement, to register the Offered Notes under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act;
(xii) The statements in the Preliminary Offering Circular and the Offering Circular under the captions “The Issuer”, “The Railcars”, “The Lessees”, “The Leases”, “TILC”, “The Servicer”, “Description of the Servicing Agreement”, “Description of the Administrative Services Agreement”, “Description of the Purchase and Contribution Agreement”, “Description of the Insurance Agreement”, “Description of the Hedge Agreements”, “Description of the Liquidity Facility Documents” and “Description of the Offered Notes and the Indenture”, insofar as they purport to summarize certain terms of the Offered Notes and the applicable Transaction Documents, constitute a fair summary of the provisions purported to be summarized;
(xiii) The statements contained in the Preliminary Offering Circular and the Offering Circular under the captions “Certain Considerations for ERISA and Other Benefit Plans” and “Certain United States Federal Income Tax Considerations”, to the extent that they constitute matters of federal law or legal conclusions with respect thereto, while not purporting to discuss all possible consequences of investment in the Offered Notes, are correct in all material respects with respect to those consequences or matters that are discussed therein; and
(xiv) (A) In a properly presented and decided case, in the event TILC or TRLWT became a debtor in a voluntary or involuntary bankruptcy case under the Bankruptcy Code, the bankruptcy court would not substantially consolidate the assets and liabilities of the Issuer with those of TILC or TRLWT, as applicable, and (B) in a properly presented and decided case, in the event TILC or TRLWT became a debtor in
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a voluntary or involuntary bankruptcy case under the Bankruptcy Code, the bankruptcy court would determine that the transfer of the Transferred Assets by TILC or TRLWT to the Company pursuant to the Purchase and Contribution Agreement constitutes an assignment or sale of such assets to the Company by TILC or TRLWT, as opposed to being collateral for a loan by the Company to the TILC or TRLWT.
(d) The Initial Purchasers shall have received from Chapman and Cutler LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(e) The Initial Purchasers shall have received the opinion or opinions of Chapman and Cutler LLP, special counsel to the Trustee, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(f) The Initial Purchasers shall have received the opinion of Alvord and Alvord PLLC, special STB counsel, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received the opinion of Fasken LLP, special Canadian counsel, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(h) The Initial Purchasers shall have received the in-house opinion of Landesbank Hessen-Thüringen Girozentrale, in its capacity as Liquidity Facility Provider, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(i) The Initial Purchasers shall have received a copy of each opinion provided to the Hired NRSROs in connection with its rating of the Offered Notes, each of which shall state therein that the Initial Purchasers may rely thereon, in form and substance reasonably satisfactory to the Initial Purchasers.
(j) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the President or any Vice President or a principal financial or accounting officer of each of the Issuer and TILC (it being understood that a certificate of TILC on its own behalf and in its capacity as sole equity member and manager of the Issuer shall be sufficient for purposes of the compliance by the Issuer and TILC with this requirement) in which such officer, to the best of such officer’s knowledge, after reasonable investigation, shall state that (i) the representations and warranties of the Issuer and TILC, as the case may be, in this Agreement are true and correct, that each of the Issuer and TILC has performed and complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements of each of the Issuer and TILC, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of each of the Issuer and TILC and its subsidiaries taken as a whole except as described in such certificate, (ii) nothing has come to such officer’s attention that would lead such officer to conclude that the General Disclosure Package included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, under the circumstances in which they were made, not misleading and (iii) since the date of the Offering Circular there shall not have been any change in the capital stock of TILC or the membership interests of the Issuer, or the long term debt of the Issuer or TILC except as described in such certificate.
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(k) On or before the Closing Date, this Agreement, the Offering Document and each Transaction Document shall be satisfactory in form and substance to the Initial Purchasers, shall have been duly executed and delivered by the parties thereto (except that the execution and delivery of the documents referred to above (other than this Agreement) by a party hereto or thereto shall not be a condition precedent to such party’s obligations hereunder), shall each be in full force and effect and executed counterparts of each shall have been delivered to the Initial Purchasers or its counsel on or before the Closing Date.
(l) Each of TILC and the Issuer shall have delivered to the Initial Purchasers a certificate (it being understood that a certificate of TILC in its capacity as sole equity member and manager of the Issuer shall be sufficient for purposes of the Issuer’s compliance with this requirement), dated the Closing Date, of its secretary or other duly elected, qualified and acting officer certifying its certificate of incorporation, limited liability company agreement, bylaws or other organizational documents; board or similar resolutions authorizing the execution, delivery and performance of the Transaction Documents to which it is a party, as applicable; and the incumbency of all officers that signed any of the Transaction Documents.
(m) The Initial Purchasers shall have received a certificate from a nationally recognized insurance broker with respect to the public liability insurance required by Section 5.04(f) of the Indenture.
(n) Any Transaction Documents which are required to be executed on or prior to the Closing Date that have not been executed by the date of this Agreement will be subject to a condition precedent that requires such agreements to be in form and substance satisfactory to the Initial Purchasers.
(o) (i) The Hired NRSROs shall have delivered to the Issuer, TILC and the Initial Purchasers a final rating letter setting forth a rating with respect to the Class A Notes of at least “A (sf)” and the Class B Notes of at least “BBB (sf)” and (ii) subsequent to the execution and delivery of this Agreement the Hired NRSROs shall not have announced in writing (which shall include, without limitation, any press release by such organization) that it has under surveillance or review its rating of any of the Offered Notes (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating).
(p) On or prior to the Closing Date, DTC shall have approved as to form the “Regulation S Temporary Global Note” and the “144A Book‑Entry Note” as those terms are defined in the Indenture.
(q) On or before the Closing Date the Issuer shall have caused the Indenture (or memorandum thereof) delivered at the Closing Date, to be duly filed, recorded and deposited with the Surface Transportation Board of the United States of America in conformity with 49 U.S.C. §11301 and with the Registrar General of Canada pursuant to Section 90 of the Railway Act of Canada, and the Issuer shall furnish the Initial Purchasers with proof thereof.
Documents described as being “in the agreed form” are documents which are in the form reasonably satisfactory to the Initial Purchasers and Chapman and Cutler LLP.
The Issuer and TILC will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers reasonably request.
8. Indemnification and Contribution. (a) The Issuer and TILC will jointly and severally indemnify and hold harmless (i) each Initial Purchaser and (ii) its respective officers, partners, members, directors, employees, agents and affiliates and each person, if any, who controls
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such Initial Purchaser, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (the “Initial Purchaser Representatives”), against any losses, claims, damages, liabilities or expenses, joint or several, to which such Initial Purchaser or the Initial Purchaser Representatives may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) relate to, arise out of or are based upon (1) any breach of any of the representations, warranties and covenants of the Issuer or TILC contained herein, (2) any untrue statement or alleged untrue statement of any material fact contained in any document comprising a part of the Offering Document, any Limited Use Issuer Free Writing Communication or any amendment or supplement thereto, or any Additional Issuer Information or (3) any omission or alleged omission to state, in any document comprising a part of the Offering Documents, any Limited Use Issuer Free Writing Communication, or any amendment of or supplement thereto, or any Additional Issuer Information, a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, including, without limitation, any losses, claims, damages, liabilities or expenses arising out of or based upon the Issuer’s or TILC’s failure to perform its obligations under Section 5 of this Agreement, and will reimburse each Initial Purchaser and the Initial Purchaser Representatives for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action as such expenses are incurred; provided, however, that none of the Issuer or TILC will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Issuer or TILC by such Initial Purchaser specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) below.
(b) Each Initial Purchaser severally and not jointly will indemnify and hold harmless (i) the Issuer and TILC and (ii) their respective directors and officers and each person, if any, who controls the Issuer or TILC within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (the “Seller Representatives”), against any losses, claims, damages, liabilities or expenses to which the Issuer, TILC or the Seller Representatives may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any document comprising a part of the Offering Document, any Limited Use Issuer Free Writing Communication or any amendment or supplement thereto, or any related preliminary offering circular, or arise out of or are based upon the omission or the alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Issuer or TILC by the Initial Purchasers specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Issuer, TILC or the Seller Representatives in connection with investigating or defending any such loss, claim, damage, liability, expense or action as such expenses are incurred, it being understood and agreed that the only such information furnished by the Initial Purchasers consists of the information in the Offering Document as highlighted in the excerpt from the Offering Document set forth on Schedule E hereto; provided, however, that the Initial Purchasers shall not be liable for any losses, claims, damages, liabilities or expenses arising
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out of or based upon the Issuer’s or TILC’s failure to perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that differing interests may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties, and the indemnifying party will reimburse any legal expenses incurred by the indemnified party having separate counsel, as incurred. And after any such notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence, (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party or parties, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party. It is understood that all such fees and expenses of counsel for the indemnified party for which the indemnifying party is liable shall be reimbursed as they are incurred. Notwithstanding the foregoing, the indemnifying party shall have no right to retain counsel or otherwise participate in or assume the defense or settlement of any such action brought by a governmental agency, regulatory authority or self-regulatory organization having or claiming to have jurisdiction over the business or financial affairs of the relevant indemnified party or any of its affiliates. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which will not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which such indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes (i) an unconditional
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release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer and TILC on the one hand and the Initial Purchasers on the other from the offering of the Offered Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Issuer and TILC on the one hand and the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations. The relative benefits received by the Issuer and TILC on the one hand and the Initial Purchasers on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Issuer bear to the total discounts, commissions and fees received by the Initial Purchasers from the Issuer under this Agreement. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer, TILC or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Initial Purchaser shall be required to contribute any amount in excess of the total discounts, commissions and fees received by such Initial Purchaser from the Issuer and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Initial Purchasers in this subsection (d) to contribute are several in proportion to their respective purchase obligations and not joint.
(e) The obligations of the Issuer and TILC under this Section shall be in addition to any liability which the Issuer or TILC may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Initial Purchaser within the meaning of the Securities Act or the Exchange Act; and the obligations of each Initial Purchaser under this Section shall be in addition to any liability which it may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Issuer or TILC within the meaning of the Securities Act or the Exchange Act.
9. Default of Initial Purchasers, Special Resolution Regime.
(a) If any one or more Initial Purchasers shall fail to purchase and pay for the Offered Notes agreed to be purchased by such Initial Purchasers (the “Defaulting Initial Purchasers”) hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the non‑Defaulting Initial Purchasers (the “Non‑Defaulting Initial Purchasers”) may make arrangements satisfactory to the Issuer for the purchase of the Offered Notes by other persons, including any of the
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Non‑Defaulting Initial Purchasers, but if no such arrangements are made by the Closing Date, the Non‑Defaulting Initial Purchasers shall be obligated severally and not jointly to take up and pay for (in the respective proportions that the amount of Offered Notes set forth opposite their names in Schedule A bears to the aggregate amount of Offered Notes set forth opposite the names of all the Non‑Defaulting Initial Purchasers) the Offered Notes which the Defaulting Initial Purchasers agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Offered Notes which the Defaulting Initial Purchasers agreed but failed to purchase shall exceed 10% of the aggregate amount of the Offered Notes set forth in Schedule A, the Non‑Defaulting Initial Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Offered Notes. If the Non‑Defaulting Initial Purchasers do not purchase all the Offered Notes, this Agreement will terminate without liability on the part of any Non‑Defaulting Initial Purchaser, the Issuer or TILC, except as provided in Section 10. As used in this Agreement, the term “Initial Purchaser” includes any person substituted for an Initial Purchaser under this Section. Nothing herein will relieve any Defaulting Initial Purchaser from liability for its default.
(b) In the event that any Initial Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Initial Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. In the event that any Initial Purchaser that is a Covered Entity or a BHC Act Affiliate of such Initial Purchaser becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Initial Purchaser are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 9(b):
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Issuer, TILC or their
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respective officers and of the Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Initial Purchasers, the Issuer or TILC, or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Notes. If this Agreement is terminated pursuant to Section 9 or if for any reason the purchase of the Offered Notes by the Initial Purchasers is not consummated, the Issuer and TILC shall remain responsible for the expenses to be paid or reimbursed by them pursuant to Section 5 and the respective obligations of the Issuer, TILC and the Initial Purchasers pursuant to Section 8 shall remain in effect. Further, if the purchase of the Offered Notes by the Initial Purchasers is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9, the Issuer or TILC will reimburse each Initial Purchaser for all out‑of‑pocket expenses (including fees and disbursements of counsel) reasonably incurred by it in connection with the offering of the Offered Notes.
11. Notices. All communications hereunder will be in writing and, if sent to the Initial Purchasers will be mailed, delivered or telegraphed and confirmed to each of the Initial Purchasers at its respective address below:
Wells Fargo Securities LLC
550 S. Tryon Street
Charlotte, NC 28202
BofA Securities, Inc.
One Bryant Park, 11th Floor
New York, NY 10036
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, NY 10019 		Citizens Capital Markets, Inc.
600 Washington Boulevard
Stamford, CT 06901
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010
Attn: SP Finance Group 		PNC Capital Markets LLC
300 Fifth Ave. 10th Floor
Pittsburgh, PA 15222
Regions Securities LLC
1180 West Peachtree Street, NW
Suite 1400
Atlanta, GA 30309
If sent to the Issuer or TILC, as the case may be, will be mailed, delivered or emailed and confirmed to such party at the following address:
c/o Trinity Industries Leasing Company
14221 N. Dallas Parkway, Suite 100
Dallas, TX 75254
Attention: TILC Capital Markets Group
Re: Trinity Rail Leasing 2021 LLC
Email: TILC.CapitalMarkets.notices@trin.net
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder, except that holders of Offered Notes shall be entitled to enforce the agreements for their benefit contained in the second and
25

third sentences of Section 5(b) hereof against the Issuer as if such holders were parties thereto.
13. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement and any party may enter into this Agreement by executing a counterpart. Delivery by facsimile or other electronic transmission of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart hereof.
14. Absence of Fiduciary Relationship. Each of the Issuer and TILC acknowledges and agrees that:
(a) Each Initial Purchaser has been retained solely to act as an initial purchaser in connection with the initial purchase, offering and resale of the Offered Notes, and no Initial Purchaser shall be liable to the Issuer or TILC for any losses, claims, damages or other liabilities with respect to any other Notes (as defined in the Master Indenture), and that no fiduciary, advisory or agency relationship between any of the Issuer or TILC or their respective affiliates, stockholders, creditors or employees, on the one hand, and such Initial Purchaser, on the other hand, has been created in respect of any of the transactions contemplated by this Agreement or the Offering Document, irrespective of whether such Initial Purchaser has advised or is advising the Issuer or TILC on other matters;
(b) the purchase and sale of the Offered Notes pursuant to this Agreement, including the determination of the offering price of the Offered Notes and any related discount and commissions, is an arm’s‑length commercial transaction among the Initial Purchasers, the Issuer and TILC, and the Issuer and TILC are capable of evaluating and understanding, and do understand and hereby accept, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Issuer and TILC have been advised that the Initial Purchasers and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Issuer and TILC and the Initial Purchasers have no obligation to disclose such interests and transactions to any of the Issuer or TILC by virtue of any fiduciary, advisory or agency relationship; and
(d) each of the Issuer or TILC waives, to the fullest extent permitted by law, any claims it may have against any Initial Purchaser for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that no Initial Purchaser shall have any liability (whether direct or indirect) to any of the Issuer or TILC in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of any of the Issuer or TILC, including stockholders, employees or creditors of the Issuer or TILC.
15. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the state of New York without regard to principles of conflicts of laws (other than Section 5‑1401 of the New York General Obligations Law).
Each of the Issuer and TILC hereby submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States of America for the Southern District of New York, in each case sitting in the Borough of Manhattan in The City of New York and appellate courts from any thereof in any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
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EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, THE OFFERED NOTES OR ANY OF THE OTHER OPERATIVE AGREEMENTS, WHICH WAIVER IS INFORMED AND VOLUNTARY.
16. No Petition in Bankruptcy. Each Initial Purchaser agrees that, prior to the date which is one year and one day after the payment in full of all outstanding Offered Notes, such Initial Purchaser will not institute against, or join any other Person in instituting against, the Issuer an action in bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceeding under the laws of the United States or any state of the United States.
17. Integration. As to the matters set forth in this Agreement, so long as this Agreement is in full force and effect, the provisions herein shall supersede any and all prior agreements as to such subject matter, except any Engagement Letter and any other fee arrangement entered into between any Initial Purchaser, the Issuer and TILC.
18. Amendments. This Agreement may not be amended, waived, discharged or terminated unless such amendment, waiver, discharge or termination is in writing and signed by each of the parties hereto.
19. Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement, unless such continued effectiveness of this Agreement, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.
20. USA Patriot Act. Each of the Issuer and TILC acknowledges that the Initial Purchasers are required by U.S. Federal law, in an effort to help fight the funding of terrorism and money laundering activities, to obtain, verify and record information that identifies each person or corporation who opens an account or enters into a business relationship with a financial institution.
Titles. Wells is hereby designated as Sole Structuring Agent, Credit Agricole Securities (USA) Inc. is hereby designated as Joint Bookrunner and Green Advisor, BofA Securities, Inc. is hereby designated as Joint Bookrunner and each of Citizens Capital Markets, Inc., Credit Suisse Securities (USA) LLC, PNC Capital Markets LLC and Regions Securities LLC are hereby designated as Co-Managers.

[Signature pages follow]


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If the foregoing is in accordance with the Initial Purchasers’ understanding of our agreement, kindly sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement between the Issuer, TILC and the Initial Purchasers in accordance with its terms.
Very truly yours,

TRINITY RAIL LEASING 2021 LLC,

By: TRINITY INDUSTRIES LEASING COMPANY, as sole equity member and manage


By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director
TRINITY INDUSTRIES LEASING COMPANY

By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director




The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
WELLS FARGO SECURITIES LLC


By: /s/ John Fulvimar
Name: John Fulvimar
Title: Director







BOFA SECURITIES, INC.


By: /s/ Bradley Sohl
Name: Bradley Sohl
Title: Director





CREDIT AGRICOLE SECURITIES (USA) INC.


By: /s/ Michael Regan
Name: Michael Regan
Title: Managing Director





CITIZENS CAPITAL MARKETS, INC.


By: /s/ Gordon Wong
Name: Gordon Wong
Title: Vice President





CREDIT SUISSE SECURITIES (USA) LLC


By: /s/ Shailesh S. Deshpande
Name: Shailesh S. Deshpande
Title: MD





PNC CAPITAL MARKETS LLC


By: /s/ Valerie Shadeck
Name: Valerie Shadeck
Title: Managing Director




REGIONS SECURITIES LLC


By: /s/ Joseph R. Franke
Name: Joseph R. Franke
Title: Managing Director


Exhibit 10.5.1
EXECUTION VERSION
MASTER INDENTURE
dated as of June 30, 2021
by and between
TRINITY RAIL LEASING 2021 LLC,
a Delaware limited liability company,
as the Issuer,
and
U.S. BANK NATIONAL ASSOCIATION,
a national banking association,
as Indenture Trustee


TABLE OF CONTENTS
Page
GRANTING CLAUSES...................................................................................................................… 1

ARTICLE I DEFINITIONS.......................................................................................................... 8
Section 1.01        Definitions.....................................................................................…... 8
Section 1.02        Rules of Construction.......................................................................... 9
Section 1.03        Compliance Certificates and Opinions.....................................…...... 10
Section 1.04        Acts of Noteholders....................….................................................... 11

ARTICLE II THE NOTES......................................................................................................... 12
Section 2.01    Authorization, Issuance and Authentication of the Notes; Amount of Outstanding Principal Balance; Terms; Form; Execution and Delivery...............................................................................................12
Section 2.02    Restrictive Legends.........….............................................................. 16
Section 2.03    Note Registrar and Paying Agent...................................................... 22
Section 2.04    Paying Agent to Hold Money in Trust................................................ 23
Section 2.05    Method of Payment........................................................................... 24
Section 2.06    Minimum Denomination.................................................................... 25
Section 2.07    Exchange Option.............................................................................. 25
Section 2.08    Mutilated, Destroyed, Lost or Stolen Notes...................................... 27
Section 2.09    Payments of Transfer Taxes............................................................. 27
Section 2.10    Book-Entry Registration.................................................................... 27
Section 2.11    Special Transfer Provisions.............................................................. 29
Section 2.12    Temporary Definitive Notes    ........................................................... 33
Section 2.13    Statements to Noteholders............................................................... 33
Section 2.14    CUSIP, CINS and ISIN Numbers...................................................... 35
Section 2.15    Debt Treatment of the Notes............................................................ 35
Section 2.16    Compliance with Withholding Requirements.................................... 35
Section 2.17    Limitation on Transfers..................................................................... 36
Section 2.18    Noteholder Tax Identification Information......................................... 38
Section 2.19    Later Sold Notes............................................................................... 38

ARTICLE III INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS...................................... 40
Section 3.01    Establishment of Indenture Accounts; Investments.......................... 40
Section 3.02    Collections Account........................................................................... 44
Section 3.03    Withdrawal upon an Event of Default................................................ 44
Section 3.04    Liquidity Reserve Account; Liquidity Facilities................................... 44
Section 3.05    Optional Reinvestment Account........................................................ 46
Section 3.06    Expense Account.............................................................................. 47
Section 3.07    Series Accounts................................................................................ 48
Section 3.08    Redemption/Defeasance Account..................................................... 48
Section 3.09    [Reserved.]........................................................................................ 49
Section 3.10    Calculations....................................................................................... 49
Section 3.11    Payment Date Distributions from the Collections Account................ 52
Section 3.12    Optional Redemptions....................................................................... 65
Section 3.13    Procedure for Redemptions............................................................... 66
Section 3.14    Adjustments in Targeted Principal Balances..................................... 68
Section 3.15    Liquidity Facilities.............................................................................. 69
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TABLE OF CONTENTS
(continued)
Page
Section 3.16    Hedge Agreements............................................................................ 70
Section 3.17    Capital Contributions to Indenture Accounts and/or Portfolio............ 73

ARTICLE IV DEFAULT AND REMEDIES.................................................................................. 73
Section 4.01    Events of Default............................................................................... 73
Section 4.02    Remedies Upon Event of Default...................................................... 76
Section 4.03    Limitation on Suits............................................................................. 79
Section 4.04    Waiver of Existing Defaults............................................................... 80
Section 4.05    Restoration of Rights and Remedies................................................ 80
Section 4.06    Remedies Cumulative....................................................................... 81
Section 4.07    Authority of Courts Not Required...................................................... 81
Section 4.08    Rights of Noteholders to Receive Payment...................................... 81
Section 4.09    Indenture Trustee May File Proofs of Claim...................................... 81
Section 4.10    Undertaking for Costs........................................................................ 81
Section 4.11    Purchase Right of Class B Noteholders............................................ 82
Section 4.12    Purchase Right of Class C Noteholders............................................ 83

ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS.................................. 84
Section 5.01    Representations and Warranties....................................................... 84
Section 5.02    General Covenants............................................................................ 90
Section 5.03    Portfolio Covenants........................................................................... 97
Section 5.04    Operating Covenants....................................................................... 102

ARTICLE VI THE INDENTURE TRUSTEE............................................................................. 112
Section 6.01    Acceptance of Trusts and Duties..................................................... 112
Section 6.02    Absence of Duties........................................................................... 112
Section 6.03    Representations or Warranties........................................................ 112
Section 6.04    Reliance; Agents; Advice of Counsel............................................... 113
Section 6.05    Not Acting in Individual Capacity...................................................... 116
Section 6.06    No Compensation from Noteholders............................................... 117
Section 6.07    Notice of Defaults; Communications During Continuance of Event of Default............................................................................................. 117
Section 6.08    Indenture Trustee May Hold Securities........................................... 117
Section 6.09    Corporate Trustee Required; Eligibility............................................ 117
Section 6.10    Reports by the Issuer...................................................................... 117
Section 6.11    Compensation................................................................................. 118
Section 6.12    Certain Rights of the Requisite Majority.......................................... 118
Section 6.13    Lessee Contact............................................................................... 118

ARTICLE VII SUCCESSOR TRUSTEES................................................................................ 118
Section 7.01    Resignation and Removal of Indenture Trustee.............................. 118
Section 7.02    Appointment of Successor............................................................... 119

ARTICLE VIII INDEMNITY........................................................................................................ 120
Section 8.01    Indemnity......................................................................................... 121
Section 8.02    Noteholders’ Indemnity.................................................................... 121
Section 8.03    Survival............................................................................................ 121
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TABLE OF CONTENTS
(continued)
Page
ARTICLE IX     SUPPLEMENTAL INDENTURES....................................................................... 121
Section 9.01    Supplemental Indentures Without the Consent of the Noteholders 121
Section 9.02    Supplemental Indentures with the Consent of Noteholders............ 122
Section 9.03    Execution of Indenture Supplements and Series Supplements...... 124
Section 9.04    Effect of Indenture Supplements..................................................... 124
Section 9.05    Reference in Notes to Supplements................................................ 124
Section 9.06    Issuance of Additional Series of Notes............................................ 124

ARTICLE X     MODIFICATION AND WAIVER......................................................................... 126
Section 10.01    Modification and Waiver with Consent of Noteholders.................... 126
Section 10.02    Modification Without Consent of Noteholders................................. 127
Section 10.03    Consent of Servicer, Hedge Providers and Liquidity Facility Providers......................................................................................... 127
Section 10.04    Subordination and Priority of Payments.......................................... 128
Section 10.05    Execution of Amendments by Indenture Trustee............................. 128

ARTICLE XI     SUBORDINATION............................................................................................ 128
Section 11.01    Subordination.................................................................................. 128

ARTICLE XII     DISCHARGE OF INDENTURE; DEFEASANCE.............................................. 130
Section 12.01    Discharge of Liability on the Notes; Defeasance............................ 130
Section 12.02    Conditions to Defeasance............................................................... 131
Section 12.03    Application of Trust Money.............................................................. 132
Section 12.04    Repayment to the Issuer................................................................. 132
Section 12.05    Indemnity for Government Obligations and Corporate Obligations. 133
Section 12.06    Reinstatement................................................................................. 133

ARTICLE XIII     MISCELLANEOUS............................................................................................ 133
Section 13.01    Right of Indenture Trustee to Perform............................................. 133
Section 13.02    Waiver.............................................................................................. 133
Section 13.03    Severability...................................................................................... 134
Section 13.04    Notices............................................................................................ 134
Section 13.05    Assignments.................................................................................... 135
Section 13.06    Currency Conversion....................................................................... 135
Section 13.07    Application to Court......................................................................... 137
Section 13.08    Governing Law................................................................................. 137
Section 13.09    Jurisdiction....................................................................................... 137
Section 13.10    Jury Trial.......................................................................................... 137
Section 13.11    Counterparts; Electronic Signatures................................................ 138
Section 13.12    No Petition in Bankruptcy................................................................ 138
Section 13.13    Table of Contents, Headings, Etc.................................................... 138
iii





Annex
Description
Annex A Defined Terms
Schedule Description
Schedule 1 Account Information
Exhibit Description
Exhibit A-1 Form of Certificate to be Given by Noteholders
Exhibit A-2 Form of Certificate to be Given by Euroclear or Clearstream
Exhibit A-3 Form of Certificate to Depository Regarding Interest
Exhibit A-4 Form of Depositary Certificate Regarding Interest
Exhibit A-5 Form of Transfer Certificate for Exchange or Transfer from 144A Book-Entry Note to Regulation S Book-Entry Note
Exhibit A-6 Form of Initial Purchaser Exchange Instructions
Exhibit A-7 Form of Certificate to be Given by Transferee of Beneficial Interest in a Regulation S Book-Entry Note
Exhibit A-8 Form of Transfer Certificate for Exchange or Transfer from Unrestricted Book-Entry Note to 144A Book-Entry Note
Exhibit B Form of Investment Letter to be Delivered in Connection with Transfers to Non-QIB Accredited Investors
Exhibit C-1 Form of Monthly Report
Exhibit C-2 Form of Annual Report
Exhibit D-1 Form of Full Service Freight Railcar Lease
Exhibit D-2 Form of Full Service Tank Railcar Lease
Exhibit E-1 Form of Net Freight Railcar Lease
Exhibit E-2 Form of Net Tank Railcar Lease

iv


This MASTER INDENTURE, dated as of June 30, 2021 (as modified, amended or supplemented from time to time by Indenture Supplements, this “Master Indenture”) between TRINITY RAIL LEASING 2021 LLC, a Delaware limited liability company, as the issuer of the Notes hereunder (the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as indenture trustee for the Notes hereunder (the “Indenture Trustee”).

W I T N E S S E T H:
WHEREAS, the Issuer and the Indenture Trustee are executing and delivering this Master Indenture in order to provide for the issuance from time to time by the Issuer of Notes in one or more Series, the Principal Terms of which shall be specified in one or more Series Supplements to this Master Indenture; and
WHEREAS, except as otherwise provided herein, the obligations of the Issuer under the Notes issued pursuant to this Master Indenture and the other Secured Obligations shall be secured on a pari passu basis by the Collateral further granted and described below;
NOW THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
GRANTING CLAUSES
The Issuer hereby pledges, transfers, assigns, and otherwise conveys to the Indenture Trustee for the benefit and security of the Noteholders and other Secured Parties, and grants to the Indenture Trustee for the benefit and security of the Noteholders and other Secured Parties a security interest in and Encumbrance on, all of the Issuer’s right, title and interest, whether now existing or hereafter created or acquired and wherever located, in, to and under the assets and property described below (collectively, the “Collateral”):
(a)    each Issuer Document, in each case, as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”);
(b)    (i) all Railcars described on a schedule to a Series Supplement, together with all other Railcars conveyed to the Issuer from time to time, whether pursuant to an Asset Transfer Agreement or otherwise, and any and all substitutions and replacements therefor, (ii) all licenses, manufacturer’s warranties and other warranties, Supporting Obligations (including in respect of any related Lease), Payment Intangibles, Accounts, Instruments, Chattel Paper (including the Leases described on a schedule to a Series Supplement and any other related Leases of the Railcars and all related Lease Payments), General Intangibles and all other rights and obligations related to any such aforementioned Assigned Agreement, Railcars or Leases, including, without limitation,


all rights, powers, privileges, options and other benefits of the Issuer to receive moneys and other property due and to become due under or pursuant to such Assigned Agreements, such Railcars or Leases, including, without limitation, all rights, powers, privileges, options and other benefits to receive and collect rental payments, income, revenues, profits and other amounts, payments, tenders or security (including any cash collateral) from any other party thereto (including, in the case of related Leases, from the Lessees thereunder), (iii) all rights, powers, privileges, options and other benefits of the Issuer to receive proceeds of any casualty insurance, condemnation award, indemnity, warranty or guaranty with respect to such Assigned Agreements, Railcars or Leases, (iv) all claims of the Issuer for damages arising out of or for breach of or default under any Assigned Agreement or in respect of any related Lease, and (v) the rights, powers, privileges, options and other benefits of the Issuer to perform under each Assigned Agreement and related Lease, to compel performance and otherwise exercise all remedies thereunder and to terminate each Assigned Agreement and related Lease;
(c)    all (i) Railroad Mileage Credits allocable to such Railcars and any payments in respect of such credits, (ii) tort claims or any other claims of any kind or nature related to such Railcars and any payments in respect of such claims, (iii) SUBI Certificates evidencing a 100% special unit of beneficial interest in the Trinity Marks related to such Railcars and (iv) other payments owing by any Person (including any railroads or similar entities) in respect of or attributable to such Railcars or the use, loss, damage, casualty, condemnation of such Railcars or the Marks associated therewith, in each case whether arising by contract, operation of law, course of dealing, industry practice or otherwise;
(d)    all Indenture Accounts (other than Series Accounts) and any other deposit accounts and securities accounts established in connection with any Liquidity Facility Documents, and all the funds standing to the credit thereof, all Investment Property credited thereto (including, without limitation, all (i) securities, whether certificated or uncertificated, (ii) Security Entitlements, (iii) Securities Accounts, (iv) commodity contracts and (v) commodity accounts) in which the Issuer has now, or acquires from time to time hereafter, any right, title or interest in any manner, and the certificates or instruments, if any, representing or evidencing such Investment Property, and all dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Investment Property with respect thereto, including, without limitation, any Permitted Investments purchased with funds on deposit in any Indenture Accounts or in any other deposit accounts and securities accounts established in connection with any Liquidity Facility Documents, and all income from the investment of funds therein;
(e)    all insurance policies maintained by the Issuer or for its benefit (including, without limitation, all insurance policies maintained by the Servicer or the Insurance Manager for the benefit of the Issuer) covering all or any portion of the Collateral, and all payments thereon or with respect thereto;
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(f)    all other Accounts, Chattel Paper, commercial tort claims (as defined in the UCC), documents (as defined in the UCC), equipment (as defined in the UCC), General Intangibles, Instruments, inventory (as defined in the UCC), letter-of-credit rights (as defined in the UCC), and Supporting Obligations; and
(g)    all Proceeds, accessions, profits, products, income benefits, substitutions and replacements, whether voluntary or involuntary, of and to any of the property of the Issuer described in the preceding clauses (including, without limitation, the Issuer’s claims for indemnity thereunder and payments with respect thereto).
Such Security Interests are granted and subject to the terms and conditions of this Master Indenture as collateral security for the payment and performance in full by the Issuer of all Outstanding Obligations and for the prompt payment in full by the Issuer of the respective amounts due and the prompt performance in full by the Issuer of all of its other obligations, in each case, under this Master Indenture, the other Issuer Documents and the other Operative Agreements to which the Issuer is a party (collectively, the “Secured Obligations”), all as provided in this Master Indenture.
For the avoidance of doubt it is expressly understood and agreed that, to the extent the UCC is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties hereto desire that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision.
The Indenture Trustee acknowledges such Security Interests, accepts the duties created hereby in accordance with the provisions hereof and agrees to hold and administer all Collateral for the use and benefit of all present and future Secured Parties.
The Issuer hereby irrevocably authorizes the Indenture Trustee at any time, and from time to time, to file, without the signature of the Issuer, in any filing office in any UCC jurisdiction necessary or desirable to perfect the Security Interests granted herein, any initial financing statements, continuation statements and amendments thereto that (i) indicate or describe the Collateral regardless of whether any particular asset constituting Collateral falls within the scope of Article 9 of the UCC in the same manner as described herein or in any other manner as is necessary or desirable to ensure the perfection of the Security Interests granted herein, or (ii) provide any other information required by Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement, continuation statement or amendment, including whether the Issuer is an organization, the type of organization and any organization identification number issued to the Issuer. The Issuer agrees to furnish the information described in clause (ii) of the preceding sentence to the Indenture Trustee promptly upon the Indenture Trustee’s request. Nothing in the foregoing shall be deemed to create an obligation of the Indenture Trustee to file any financing statement, continuation statements or amendment thereto.
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1. Priority. The Issuer intends the Security Interests in favor of the Indenture Trustee to be prior to all other Encumbrances (other than Permitted Encumbrances) in respect of the Collateral, and the Issuer has taken and shall take or cause to be taken all actions necessary to obtain and maintain, in favor of the Indenture Trustee, for the benefit of the Noteholders and other Secured Parties, a first priority, perfected security interest in the Collateral, to the extent that perfection can be achieved by the filing of a UCC-1 financing statement in any UCC jurisdiction and/or other similar filings with the STB, subject to Permitted Encumbrances. With respect to Leases related to Portfolio Railcars where the Lessee thereunder is a Canadian resident, the Issuer has taken and shall take or cause to be taken all actions necessary or advisable to obtain and maintain, in favor of the Indenture Trustee, a first priority, perfected security interest in the related Railcars including, without limitation, making all such filings, registrations and recordings with the Registrar General of Canada as are necessary or advisable to obtain and maintain a first priority, perfected security interest in such Railcars (subject to Permitted Encumbrances). Notwithstanding the foregoing, the Issuer shall not be required to make any filings, registrations or recordation in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada. The Indenture Trustee shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party under all applicable law in addition to, and not in limitation of, the other rights, remedies and recourses granted to the Indenture Trustee by this Master Indenture or any law relating to the creation and perfection of security interests in the Collateral.
2. Continuance of Security.
(a)    Except as otherwise provided under “Releases” in subsection 4(e) below, the Security Interests created under this Master Indenture shall remain in force as continuing security to the Indenture Trustee, for the benefit of the Noteholders and other Secured Parties, until the repayment and performance in full of all Secured Obligations, notwithstanding any intermediate payment or satisfaction of any part of the Secured Obligations or any settlement of account or any other act, event or matter whatsoever, and shall secure Secured Obligations, including, without limitation, the ultimate balance of the moneys and liabilities hereby secured.
(b)    No assurance, security or payment which may be avoided or adjusted under the law, including under any enactment relating to bankruptcy or insolvency, and no release, settlement or discharge given or made by the Indenture Trustee on the faith of any such assurance, security or payment, shall prejudice or affect the right of the Indenture Trustee to recover the Secured Obligations from the Issuer (including any moneys which it may be compelled to pay or refund under the provisions of any applicable insolvency legislation of any applicable jurisdiction and any costs payable by it pursuant to or otherwise incurred in connection therewith) or to enforce the Security Interests granted under this Master Indenture to the full extent of the Secured Obligations and accordingly, if any release, settlement or discharge is or has been given hereunder and there is subsequently any such avoidance or adjustment under the law, it
4


is expressly acknowledged and agreed that such release, settlement or discharge shall be void and of no effect whatsoever.
(c)    If a Responsible Officer of the Indenture Trustee shall have received written notice from a Secured Party or the Issuer or Administrator that the Issuer may be insolvent pursuant to the provisions of any applicable insolvency legislation in any relevant jurisdiction as at the date of any payment made by the Issuer to the Indenture Trustee (provided that the Indenture Trustee shall have no duty to inquire or investigate and shall not be deemed to have knowledge of same absent written notice received by a Responsible Officer of the Indenture Trustee), the Indenture Trustee shall retain the Security Interests contained in or created pursuant to this Master Indenture until the expiration of a period of one month plus such statutory period within which any assurance, security, guarantee or payment can be avoided or invalidated after the payment and discharge in full of all Secured Obligations notwithstanding any release, settlement, discharge or arrangement which may be given or made by the Indenture Trustee on, or as a consequence of, such payment or discharge of liability.
3. No Transfer of Duties. The Security Interests granted hereby are granted as security only and shall not (i) transfer or in any way affect or modify, or relieve the Issuer from, any obligation to perform or satisfy any term, covenant, condition or agreement to be performed or satisfied by the Issuer under or in connection with this Master Indenture or any Issuer Document or any Collateral or (ii) impose any obligation on any of the Secured Parties or the Indenture Trustee to perform or observe any such term, covenant, condition or agreement or impose any liability on any of the Secured Parties or the Indenture Trustee for any act or omission on the part of the Issuer relative thereto or for any breach of any representation or warranty on the part of the Issuer contained therein or made in connection therewith unless otherwise expressly provided therein.
4. Collateral.
(a)    Generally. On each Closing Date, all Instruments, Chattel Paper, Securities or other documents, including, without limitation, any SUBI Certificates, representing or evidencing Collateral (to the extent not held by the Servicer pursuant to the terms of the Servicing Agreement) shall be delivered to and held by or on behalf of the Indenture Trustee on behalf of the Secured Parties pursuant hereto all in form and substance reasonably necessary to protect the pledge of such Collateral. Subject to subsection (e) under this heading, until the termination of the Security Interest granted hereby, if the Issuer shall acquire (by purchase, contribution, substitution, replacement or otherwise) any additional Collateral evidenced by Instruments or Chattel Paper at any time or from time to time after the date hereof, the Issuer shall promptly pledge the Collateral so evidenced as security for the Secured Obligations with the Indenture Trustee and deliver same to the custodial possession of the Servicer in accordance with Section 5.04(v), and the Servicer shall accept under this Master Indenture such delivery.
(b)    Safekeeping. The Indenture Trustee agrees to maintain the Collateral received by it and all records and documents relating thereto at such address or
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addresses as may from time to time be specified by the Indenture Trustee in writing to each Secured Party and the Issuer. The Indenture Trustee shall keep all Collateral and related documentation in its possession separate and apart from all other property that it is holding in its possession and from its own general assets and shall maintain accurate records pertaining to the Permitted Investments and Indenture Accounts included in the Collateral in such a manner as shall enable the Indenture Trustee, the Secured Parties and the Issuer to verify the accuracy of such record keeping. The Indenture Trustee’s books and records shall at all times show that to the extent that any Collateral is held by the Indenture Trustee such Collateral shall be held as agent of and custodian for the Secured Parties and is not the property of the Indenture Trustee. The Indenture Trustee will promptly report to each Secured Party and the Issuer any failure on its part to hold the Collateral as provided in this subsection and will promptly take appropriate action to remedy any such failure.
(c)    Limitation on Non-Severable Mixed Riders. The percentage of Portfolio Railcars in the aggregate (measured by Adjusted Value) contained on Non-Severable Mixed Riders shall not exceed twenty percent (20%) of the Portfolio Railcars in the aggregate (measured by Adjusted Value).
(d)    Notifications. The Indenture Trustee at the expense of the Issuer shall promptly forward to the Issuer and the Servicer a copy of each notice, request, report, or other document relating to any Issuer Document included in the Collateral that is received by a Responsible Officer of the Indenture Trustee from any Person other than the Issuer or the Servicer on and after the Closing Date.
(e)    Releases. If at any time all or any part of the Collateral is to be sold, transferred, assigned or otherwise disposed of by the Issuer or the Indenture Trustee or any Person on its or their behalf (but in any such case only as required or permitted by the Operative Agreements), the Indenture Trustee agrees, upon receipt of written notice from the Issuer or the Administrator, which notice shall be delivered at least five (5) Business Days prior to such sale, transfer, assignment or disposal, on or prior to the date of such sale, transfer, assignment or disposal (but not to be effective until the date of such sale, transfer, assignment or disposal) (or, in the case of a Lessee’s exercise of a purchase option, on, immediately prior to or after the date of such purchase, as may be requested by the Issuer or the Administrator), at the expense of the Issuer, to execute such instruments of release prepared by the Issuer or the Administrator, in recordable form, if necessary, in favor of the Issuer or any other Person as the Issuer or the Administrator may reasonably request, deliver the relevant part of the Collateral in its possession to the Issuer, otherwise release the Security Interest evidenced by this Master Indenture on such Collateral and release and deliver such Collateral to the Issuer and issue confirmation, to the relevant purchaser, transferee, assignee, insurer, and such other Persons as the Issuer may direct in writing, upon being requested to do so by the Issuer, that the relevant Collateral is no longer subject to the Security Interests. Any such release to the Issuer shall be deemed to release or reassign as appropriate in respect of the Collateral such grants and assignments arising hereunder.
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At the written request of the Issuer, upon the payment in full of all Secured Obligations, including, without limitation, the payment in full in cash of all unpaid principal of and accrued interest on the Notes and all actual and contingent amounts (other than inchoate indemnification amounts) payable under the Hedge Agreements, the Indenture Trustee shall release the Security Interests in the Portfolio and the other Collateral hereunder. In connection therewith, the Indenture Trustee agrees, at the expense of the Issuer and without the necessity of any consent from any Secured Party, to execute such instruments of release, in recordable form if necessary, in favor of the Issuer as the Issuer may reasonably request in respect of the release of the Portfolio and the other Collateral from the Security Interests, and to otherwise release the security interests evidenced by this Master Indenture in and with respect to such Collateral to the Issuer and to issue confirmation to such Persons as the Issuer may direct, upon being requested to do so by the Issuer, that such Collateral is no longer subject to the Security Interests.
In connection with an Optional Redemption, concurrently with the deposit of the Redemption Price into the Redemption/Defeasance Account, if such Optional Redemption shall effect a redemption in whole of a Class or Series of Notes then Outstanding, the Indenture Trustee shall be deemed to have been authorized to permit a release of Collateral in accordance with this paragraph. In order to effect any such Collateral release, the Servicer on behalf of the Issuer will identify in a Release Identification Letter a pool of individual Railcars and Leases (i) that were originally acquired by the Issuer on or prior to the issuance date of the Class or Series being redeemed or substituted therefor, and (ii) that if such pool were released from the lien of this Master Indenture, would not result in (A) the Issuer being in violation of the Concentration Limits immediately after such proposed release of Collateral, (B) the Issuer’s remaining Portfolio Railcars immediately after such proposed release of Collateral having an average age which is more than twenty percent (20%) greater than the average age of the Issuer’s remaining Portfolio Railcars immediately prior to such proposed release of Collateral, (C) the Issuer’s remaining Portfolio Leases immediately after such proposed release of Collateral having an average remaining term which is less than eighty percent (80%) of the average remaining term of the Issuer’s Portfolio Leases immediately prior to such proposed release of Collateral, (D) the Book LTV Ratio immediately after such proposed release of Collateral being greater than the Book LTV Ratio immediately prior to such proposed release of Collateral and (E) the Current LTV Ratio immediately after such proposed release of Collateral being greater than the Current LTV Ratio immediately prior to such proposed release of Collateral. For this purpose:
“Release Identification Letter” means a letter from the Servicer (on behalf of the Issuer) addressed to the Indenture Trustee that identifies a pool of Railcars and Leases referred to in the preceding paragraph and certifies as to the satisfaction of the conditions in clause (ii) of the preceding paragraph. The Indenture Trustee shall be entitled to rely conclusively and exclusively on a Release Identification Letter without
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further investigation in connection with any release contemplated by the preceding paragraph.
“Book LTV Ratio” means, as of any date of determination, a ratio equivalent to a fraction, the numerator of which is the Outstanding Principal Balance of the Equipment Notes as of such date of determination, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such date of determination.
“Current LTV Ratio” means, as of any date of determination, a ratio equivalent to a fraction, the numerator of which is the Outstanding Principal Balance of the Equipment Notes as of such date of determination, and the denominator of which is the aggregate Special Appraised Value of the Portfolio Railcars as of such date of determination.
“Special Appraised Value” means the value assigned to the Railcars by Rail Solutions, Inc., Edward S. Biggs III, LLC (d/b/a Biggs Appraisal) or another independent railcar appraiser that is of comparable standing and reputation in the good faith judgment of the Servicer, as performed no earlier than ninety (90) days prior to the release date and obtained by the Servicer at the cost of the Issuer.
5. Exercise of the Issuer’s Rights Concerning the Servicing Agreement. The Issuer hereby agrees that, whether or not an Event of Default has occurred and is continuing, so long as this Master Indenture has not been terminated and the Security Interests on the Collateral released, the Indenture Trustee (acting at the Direction of the Requisite Majority) shall have the exclusive right to exercise and enforce all of the rights of the Issuer set forth in Sections 8.2, 8.3, 8.5 (other than the right to propose the list of replacement servicers pursuant to Section 8.5(b)) and 8.6 of the Servicing Agreement (including, without limitation, the rights to deliver all notices, declare a Servicer Termination Event, terminate the Servicing Agreement, elect to replace the Servicer and/or elect to appoint a Successor Servicer and select any replacement Servicer, and the right to increase the Servicing Fee and/or add an incentive fee payable to any such Successor Servicer); provided that so long as no Event of Default has occurred and is continuing, the Issuer shall retain the non-exclusive right to approve the list of proposed replacement Servicers (such approval not to be unreasonably withheld or delayed) and to deliver notices under Section 8.2 of the Servicing Agreement and declare a Servicer Termination Event thereunder. In furtherance of the foregoing, the Issuer hereby irrevocably appoints the Indenture Trustee as its attorney-in-fact to exercise all rights described in this Granting Clause provision in its place and stead.
ARTICLE I

DEFINITIONS
Section 1.01Definitions. For purposes of this Master Indenture, the terms set forth in Annex A hereto shall have the meanings indicated in such Annex A.
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Section 1.02Rules of Construction. Unless the context otherwise requires:
(a)A term has the meaning assigned to it and an accounting term not otherwise defined has the meaning assigned to it in accordance with U.S. GAAP.
(b)The terms “herein”, “hereof” and other words of similar import refer to this Master Indenture as a whole and not to any particular Article, Section or other subdivision.
(c)Unless otherwise indicated in context, all references to Articles, Sections, Schedules, Exhibits or Annexes refer to an Article or Section of, or a Schedule, Exhibit or Annex to, this Master Indenture.
(d)Words of the masculine, feminine or neuter gender shall mean and include the correlative words of other genders, and words in the singular shall include the plural, and vice versa.
(e)The terms “include”, “including” and similar terms shall be construed as if followed by the phrase “without limitation”.
(f)References in this Master Indenture to an agreement or other document (including this Master Indenture) mean the agreement or other document and all schedules, exhibits, annexes and other materials that are part of such agreement and include references to such agreement or document as amended, supplemented, restated or otherwise modified in accordance with its terms and the provisions of this Master Indenture, and the provisions of this Master Indenture apply to successive events and transactions.
(g)References in this Master Indenture to any statute or other legislative provision shall include any statutory or legislative modification or re-enactment thereof, or any substitution therefor.
(h)References in this Master Indenture to the Notes of any Series or any Class, as the case may be, include the terms and conditions applicable to the Notes of such Series or such Class, as the case may be, and any reference to any amount of money due or payable by reference to the Notes of any Series or any Class, as the case may be, shall include any sum covenanted to be paid by the Issuer under this Master Indenture and the related Series Supplement in respect of the Notes of such Series or such Class, as applicable.
(i)References in this Master Indenture to any action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security shall be deemed to include, in respect of any jurisdiction other than the State of New York, references to such action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security available or appropriate in such
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jurisdiction as shall most nearly approximate such action, remedy or method of judicial proceeding described or referred to in this Master Indenture.
(j)Where any payment is to be made, funds applied or any calculation is to be made hereunder on a day which is not a Business Day, unless this Master Indenture or any other Operative Agreement otherwise provides, such payment shall be made, funds applied and calculation made on the next succeeding Business Day, and payments shall be adjusted accordingly.
(k)For purposes of determining the balance of amounts credited to and/or deposited in an Indenture Account, the “value” of Permitted Investments deposited in and/or credited to an Indenture Account shall be the lower of the acquisition cost thereof and the then fair market value thereof and the “value” of Dollars and cash equivalents of Dollars (other than cash equivalents of Dollars included in the definition of Permitted Investments) shall be the face value thereof.
Section 1.03Compliance Certificates and Opinions. Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Master Indenture or any Series Supplement, the Issuer shall furnish to the Indenture Trustee an Officer’s Certificate stating that, in the opinion of the signers thereof, all conditions precedent, if any, provided for in this Master Indenture and/or such Series Supplement relating to the proposed action have been complied with, and, if requested by the Indenture Trustee, an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Master Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Master Indenture, any Series Supplement or any Indenture Supplement shall include:
(a)a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions in this Master Indenture, such Series Supplement and/or such Indenture Supplement relating thereto;
(b)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c)a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
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(d)a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.04Acts of Noteholders.
(a)Any direction, consent, waiver or other action provided by this Master Indenture in respect of the Notes of any Series or Class or the Collateral to be given or taken by the Indenture Trustee at the Direction of Noteholders (including a Control Party or a Requisite Majority) may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders, Control Party or Requisite Majority, as applicable, in person or by an agent or proxy duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, to each Rating Agency where it is hereby expressly required pursuant to this Master Indenture and to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Noteholders, Control Party or Requisite Majority signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose under this Master Indenture and any Series Supplement and conclusive in favor of the Indenture Trustee or the Issuer, if made in the manner provided in this Section.
(b)The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or such other officer and where such execution is by an officer of a corporation or association, trustee of a trust or member of a partnership, on behalf of such corporation, association, trust or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner that the Indenture Trustee deems sufficient.
(c)In determining whether any Noteholders, any Control Party or any Requisite Majority shall have given any direction, consent, request, demand, authorization, notice, waiver or other Act (any of the foregoing may be referred to as a “Direction”) under this Master Indenture or any Series Supplement (including without limitation any consent pursuant to Sections 4.04 or 9.02(a)), any Equipment Notes legally or beneficially owned by any Issuer Group Member shall be disregarded and deemed not to be Outstanding for purposes of any such determination. In determining whether the Indenture Trustee shall be protected in relying upon any such Direction, only Equipment Notes that a Responsible Officer of the Indenture Trustee actually knows to be so owned shall be so disregarded. Notwithstanding the foregoing, if any such Person legally or beneficially owns 100% of the Equipment Notes then
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Outstanding then such Equipment Notes shall not be so disregarded for purposes of such determination.
(d)The Issuer may at its option, by delivery of an Officer’s Certificate to the Indenture Trustee, set a record date other than the Record Date to determine the Noteholders in respect of the Notes of any Series entitled to give any Direction in respect of such Notes. Such record date shall be the record date specified in such Officer’s Certificate which shall be a date not more than 30 days prior to the first solicitation of Noteholders in connection therewith. If such a record date is fixed, such Direction may be given before or after such record date, but only the Noteholders of record of such Series at the close of business on such record date shall be deemed to be Noteholders for the purposes of determining whether Noteholders of the requisite proportion of Outstanding Notes of such Series have authorized or agreed or consented to such Direction, and for that purpose the Outstanding Notes of such Series shall be computed as of such record date; provided that no such Direction by the Noteholders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Master Indenture not later than one year after the related record date.
(e)Any Direction or other action by a Noteholder (including a Control Party or a Requisite Majority) shall bind the Noteholder of every Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such action is made upon such Note.
ARTICLE II

THE NOTES
Section 2.01Authorization, Issuance and Authentication of the Notes; Amount of Outstanding Principal Balance; Terms; Form; Execution and Delivery.
(a)The number of Series of Notes which may be created by this Master Indenture is not limited. The Notes shall be issued in such Series as may from time to time be created by Series Supplements pursuant to this Master Indenture and may be issued in such Classes within a Series as may be authorized by the related Series Supplement for such Series. Each Series shall be created by a separate Series Supplement and shall be identified in a manner sufficient to differentiate the Notes of each such Series (and Classes within such Series) from the Notes of any other Series. The Notes of each Series will rank pari passu with the Notes of each other Series upon the occurrence and during the continuation of an Event of Default and otherwise will be paid in accordance with the Flow of Funds.
(b)Upon satisfaction of and compliance with the requirements and conditions to closing set forth in the related Series Supplement, the Notes of the applicable Series to be executed and delivered on a particular Closing Date pursuant to such Series Supplement may be executed by the Issuer and delivered to the Indenture
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Trustee for authentication following the execution and delivery of the related Series Supplement creating such Series or from time to time thereafter, and the Indenture Trustee shall authenticate and deliver the Notes of such Series upon the Issuer’s request and direction set forth in an Officer’s Certificate of the Issuer signed by one of its Responsible Officers, without further action on the part of the Issuer. Notwithstanding anything to the contrary contained hereunder or in any Series Supplement, any such authentication may be made on separate counterparts and by facsimile.
(c)There shall be issued, delivered and authenticated on the relevant Closing Date to each of the Noteholders identified on such Notes, Notes in the principal amounts and maturities and bearing interest at the relevant Stated Rate, in each case in registered form and substantially in the form set forth in an exhibit to the applicable Series Supplement, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Master Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements printed, lithographed, typewritten or engraved thereon, as may be required to comply with the rules of any securities exchange on which such Notes may be listed or to conform to any usage in respect thereof, or as may, consistently herewith, be prescribed by the Indenture Trustee executing such Notes, such determination by said Indenture Trustee to be evidenced by its authentication of such Notes. Definitive Notes of a Series shall be printed, lithographed, typewritten or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Notes may be listed, all as determined by the Indenture Trustee authenticating such Notes, as evidenced by such authentication.
(i)Each Series of Equipment Notes (or Class thereof) sold in reliance on Rule 144A shall be represented by one or more permanent 144A Book-Entry Notes which will be deposited with DTC or its custodian, the Indenture Trustee or an agent of the Indenture Trustee and registered in the name of Cede as nominee of DTC. The 144A Book-Entry Note shall only be transferred to a successor organization subject to the same terms and any other transfers of such 144A Book-Entry Note shall otherwise be limited as necessary in order for the 144A Book-Entry Note to constitute an immobilized obligation for purposes of Internal Revenue Service Notice 2012-20 (or such other guidance as may be adopted under the Code and Treasury Regulations).
(ii)Each Series of Equipment Notes (or Class thereof) offered and sold outside of the United States in reliance on Regulation S shall be represented by a Regulation S Temporary Book-Entry Note, which will be deposited with the Indenture Trustee or an agent of the Indenture Trustee as custodian for and registered in the name of Cede, as nominee of DTC. The Regulation S Temporary Book-Entry Note shall only be transferred to a successor organization subject to the same terms and any other transfers of such
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Regulation S Temporary Book-Entry Note shall otherwise be limited as necessary in order for the Regulation S Temporary Book-Entry Note to constitute an immobilized obligation for purposes of Internal Revenue Service Notice 2012-20 (or such other guidance as may be adopted under the Code and Treasury Regulations). Beneficial interests in each Regulation S Temporary Book-Entry Note may be held only through Euroclear or Clearstream; provided, however, that such interests may be exchanged for interests in a 144A Book-Entry Note or a Definitive Note in accordance with the certification requirements described in Section 2.07.
(iii)A beneficial owner of an interest in a Regulation S Temporary Book-Entry Note may receive payments in respect of such Regulation S Temporary Book-Entry Notes only after delivery to Euroclear or Clearstream, as the case may be, of a written certification substantially in the form set forth in Exhibit A-1 to this Master Indenture, and upon delivery by Euroclear or Clearstream, as the case may be, to the Indenture Trustee and Note Registrar of a certification or certifications substantially in the form set forth in Exhibit A-2 to this Master Indenture. The delivery by a beneficial owner of the certification referred to above shall constitute its irrevocable instruction to Euroclear or Clearstream, as the case may be, to arrange for the exchange of the beneficial owner’s interest in the Regulation S Temporary Book-Entry Note for a beneficial interest in the Unrestricted Book-Entry Note after the Exchange Date in accordance with the paragraph below.
(iv)Not earlier than the Exchange Date, interests in each Regulation S Temporary Book-Entry Note will be exchangeable for interests in the related permanent global note (an “Unrestricted Book-Entry Note”). Each Unrestricted Book-Entry Note will be deposited with the Indenture Trustee and registered in the name of Cede as nominee of DTC. After (1) the Exchange Date and (2) receipt by the Indenture Trustee and Note Registrar of written instructions from Euroclear or Clearstream, as the case may be, directing the Indenture Trustee and Note Registrar to credit or cause to be credited to either Euroclear’s or Clearstream’s, as the case may be, depositary account a beneficial interest in the Unrestricted Book-Entry Note in a principal amount not greater than that of the beneficial interest in the Regulation S Temporary Book-Entry Note, the Indenture Trustee and Note Registrar shall instruct DTC to reduce the principal amount of the Regulation S Temporary Book-Entry Note and increase the principal amount of the Unrestricted Book-Entry Note, in each case by the principal amount of the beneficial interest in the Regulation S Temporary Book-Entry Note to be so transferred, and to credit or cause to be credited to the account of a Direct Participant a beneficial interest in the Unrestricted Book-Entry Note having a principal amount equal to the reduction in the principal amount of such Regulation S Temporary Book-Entry Note.
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(v)Upon the exchange of the entire principal amount of the Regulation S Temporary Book-Entry Note for beneficial interests in the Unrestricted Book-Entry Note, the Indenture Trustee shall cancel the Regulation S Temporary Book-Entry Note in accordance with the Indenture Trustee’s policies in effect from time to time.
(vi)No interest in the Regulation S Book-Entry Notes may be held by or transferred to a United States Person except for exchanges for a beneficial interest in a 144A Book-Entry Note or a Definitive Note as described below.
(vii)The Subordinated Notes shall be represented by Definitive Notes at all times and shall be held by either the applicable Noteholder or the Authorized Agent for the benefit of the applicable Noteholders of such Subordinated Notes, printed, lithographed, typewritten or otherwise produced, in any denomination, containing substantially the same terms and provisions as are set forth in the applicable exhibit to the Series Supplement. At the instruction of the Authorized Agent from time to time, a new Definitive Note representing a Subordinated Note shall be issued in the name and in a principal amount specified by the Authorized Agent in writing to the Issuer and the Indenture Trustee, and the applicable existing Definitive Note held by the Authorized Agent for the benefit of the Noteholders of Subordinated Notes will be exchanged for such new Definitive Note accordingly. In connection with transfers in whole or part of any Definitive Notes held directly by Noteholders of Subordinated Notes, the Authorized Agent may also from time to time request that new Definitive Notes be issued and old Definitive Notes be exchanged or cancelled, as applicable. The Authorized Agent must request in writing that the Issuer execute, and the Indenture Trustee authenticate any issuance or reissuance of Definitive Notes in accordance with Section 2.11(f).
(d)The Notes shall be executed on behalf of the Issuer by the manual or facsimile signature of an Authorized Representative of the Issuer.
(e)Each Note bearing the manual or facsimile signatures of any individual who was at the time such Note was executed an Authorized Representative of the Issuer shall bind the Issuer, notwithstanding that any such individual has ceased to hold such office prior to the authentication and delivery of such Notes or any payment thereon.
(f)No Note shall be entitled to any benefit under this Master Indenture or any related Series Supplement or be valid or obligatory for any purpose, unless it shall have been executed on behalf of the Issuer as provided in clause (b) and (e) above and authenticated by or on behalf of the Indenture Trustee as provided in clause (b) above. Such signatures shall be conclusive evidence that such Note has been duly executed and authenticated under this Master Indenture and any related Series Supplement. Each Note shall be dated the date of its authentication.
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Section 2.02Restrictive Legends. Each 144A Book-Entry Note, each Regulation S Temporary Book-Entry Note, each Unrestricted Book-Entry Note, each Subordinated Note and each Definitive Note (and all Notes issued in exchange therefor or upon registration of transfer or substitution thereof) shall bear a legend on the face thereof substantially in the form set forth below (unless counsel to the Issuer advises that a different legend or additional legend is required for any reason):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES OR “BLUE SKY” LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF TRINITY RAIL LEASING 2021 LLC (THE “ISSUER”) THAT THIS NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE), (2) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE UNITED STATES TO A PERSON WHO IS NOT A U.S. PERSON (AS SUCH TERM IS DEFINED IN REGULATION S OF THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH REGULATION S OF THE SECURITIES ACT OR (4) IN A TRANSACTION COMPLYING WITH OR EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (SUBJECT IN THE CASE OF THIS CLAUSE (4) TO RECEIPT OF AN OPINION OF COUNSEL AND SUCH CERTIFICATES AND OTHER DOCUMENTS AS ARE REQUIRED UNDER THE INDENTURE REFERRED TO BELOW), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
[In the case of Class A Equipment Notes or Class B Equipment Notes:
BY ITS ACQUISITION OF THIS NOTE, EACH PURCHASER AND TRANSFEREE (AND ITS FIDUCIARY, IF APPLICABLE) WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED EITHER THAT (A) IT IS NOT AND IS NOT USING THE ASSETS OF AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, A “PLAN” AS DEFINED BY AND SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR OTHER PLAN’S INVESTMENT IN SUCH ENTITY (EACH, A “BENEFIT
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PLAN”), OR A GOVERNMENTAL PLAN, NON-U.S. PLAN OR CHURCH PLAN SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”), OR (B) THE PURCHASE AND HOLDING OF SUCH NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW.
ADDITIONALLY, IF A PURCHASER OR TRANSFEREE IS A BENEFIT PLAN, IT WILL BE DEEMED TO REPRESENT BY ITS PURCHASE OR ACQUISITION OF THIS NOTE (OR AN INTEREST THEREIN) THAT (I) NONE OF THE TRANSACTION PARTIES HAVE PROVIDED ANY INVESTMENT ADVICE WITHIN THE MEANING OF SECTION 3(21) OF ERISA TO THE BENEFIT PLAN, OR TO ANY FIDUCIARY OR OTHER PERSON INVESTING ON BEHALF OF THE BENEFIT PLAN OR WHO OTHERWISE HAS DISCRETION OR AUTHORITY OVER THE INVESTMENT AND MANAGEMENT OF “PLAN ASSETS” OF THE BENEFIT PLAN, IN CONNECTION WITH ITS ACQUISITION OF THIS NOTE AND (II) NO TRANSACTION PARTY IS ACTING AS A FIDUCIARY TO THE BENEFIT PLAN IN CONNECTION WITH THE BENEFIT PLAN’S PURCHASE OR ACQUISITION OF THIS NOTE.]
[In the case of Class C Equipment Notes or Class R Notes:
BY ITS ACQUISITION OF THIS NOTE, EACH PURCHASER AND TRANSFEREE (AND ITS FIDUCIARY, IF APPLICABLE) WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (A) IT IS NOT AND IS NOT USING THE ASSETS OF AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, A “PLAN” AS DEFINED BY AND SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR OTHER PLAN’S INVESTMENT IN SUCH ENTITY AND (B) IT IS NOT AND IS NOT USING THE ASSETS OF A GOVERNMENTAL PLAN, NON-U.S. PLAN OR CHURCH PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
[In the case of Book-Entry Notes:
THIS NOTE IS A GLOBAL BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART
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MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE REFERRED TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO BELOW.]
[In the case of a Note issued with original issue discount, as defined in Section 1271 et seq. of the Code:
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED. FOR INFORMATION REGARDING THE ISSUE DATE, ISSUE PRICE, YIELD TO MATURITY AND THE AMOUNT OF OID, PLEASE CONTACT [    ], ATTN: [ ]]
[In the case of Subordinated Notes:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.]
[In the case of Subject Notes:
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EACH NOTEHOLDER OF THIS NOTE AGREES (AND EACH APPLICABLE PERSON BY VIRTUE OF ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE (OR BY VIRTUE OF AGREEING TO ACT AS AN AGENT, REPRESENTATIVE OR INTERMEDIARY OF OR WITH RESPECT TO THE HOLDER OF SUCH A BENEFICIAL INTEREST) IS DEEMED TO AGREE) THAT THIS NOTE MAY NOT BE TRANSFERRED, AND NO TRANSFER (OR PURPORTED TRANSFER) OF ALL OR ANY PART OF THIS NOTE (OR ANY DIRECT OR INDIRECT ECONOMIC OR BENEFICIAL INTEREST THEREIN) WHETHER TO THE INITIAL NOTEHOLDER, ANOTHER NOTEHOLDER OR TO A PERSON THAT IS NOT A NOTEHOLDER (ANY OF THESE, A “TRANSFEREE”) SHALL BE EFFECTIVE, AND TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW ANY SUCH TRANSFER (OR PURPORTED TRANSFER) SHALL BE VOID AB INITIO, AND NO PERSON SHALL OTHERWISE BECOME A NOTEHOLDER OF THIS NOTE (OR A HOLDER OF ANY DIRECT OR INDIRECT BENEFICIAL INTEREST HEREIN), UNLESS: (I) (A) EITHER (I) THE TRANSFEREE (OR, IF THE TRANSFEREE IS A DISREGARDED ENTITY FOR U.S. FEDERAL INCOME TAX PURPOSES, THE SOLE OWNER OF THE TRANSFEREE) IS NOT AND WILL NOT BECOME FOR U.S. FEDERAL INCOME TAX PURPOSES A PARTNERSHIP, SUBCHAPTER S CORPORATION OR GRANTOR TRUST (EACH SUCH ENTITY, A “FLOW-THROUGH ENTITY”) OR (II) IF THE TRANSFEREE (OR, IF THE TRANSFEREE IS A DISREGARDED ENTITY FOR U.S. FEDERAL INCOME TAX PURPOSES, THE SOLE OWNER OF THE TRANSFEREE) IS OR BECOMES A FLOW-THROUGH ENTITY, THEN EITHER (X) NONE OF THE DIRECT OR INDIRECT BENEFICIAL OWNERS OF ANY OF THE INTERESTS IN THE TRANSFEREE HAVE OR EVER WILL HAVE ALL OR SUBSTANTIALLY ALL THE VALUE OF ITS INTEREST IN THE TRANSFEREE ATTRIBUTABLE TO THE INTEREST OF THE TRANSFEREE IN THIS NOTE, ANY OTHER SUBJECT NOTES, OTHER INTEREST (DIRECT OR INDIRECT) IN THE ISSUER, OR ANY INTEREST CREATED UNDER THE MASTER INDENTURE OR (Y) IT IS NOT AND WILL NOT BE A PRINCIPAL PURPOSE OF THE ARRANGEMENT INVOLVING THE INVESTMENT OF THE TRANSFEREE IN THIS NOTE TO PERMIT ANY PARTNERSHIP TO SATISFY THE ONE HUNDRED (100) PARTNER LIMITATION OF SECTION 1.7704-1(H)(1)(II) OF THE TREASURY REGULATIONS NECESSARY FOR SUCH PARTNERSHIP NOT TO BE CLASSIFIED AS A PUBLICLY TRADED PARTNERSHIP UNDER THE CODE, (B) THE TRANSFEREE WILL NOT SELL, ASSIGN, TRANSFER OR OTHERWISE CONVEY ANY PARTICIPATING INTEREST IN THIS NOTE OR ANY FINANCIAL INSTRUMENT OR CONTRACT THE VALUE OF WHICH IS DETERMINED BY REFERENCE IN WHOLE OR IN PART TO THIS NOTE, AND (C) IT IS NOT ACQUIRING, AND WILL NOT SELL, TRANSFER, ASSIGN, PARTICIPATE, PLEDGE OR OTHERWISE DISPOSE OF, THIS NOTE (OR INTEREST THEREIN) OR CAUSE THIS NOTE (OR INTEREST THEREIN) TO BE MARKETED, ON OR THROUGH AN “ESTABLISHED SECURITIES MARKET” WITHIN THE MEANING OF SECTION 7704(B) OF THE CODE,
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INCLUDING, WITHOUT LIMITATION, AN INTERDEALER QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS, AND (II) AFTER SUCH TRANSFER THERE WOULD BE NO MORE THAN NINETY (90) MEMBERS OF THE LIMITED LIABILITY COMPANY THAT IS THE ISSUER (INCLUDING AS MEMBERS, SOLELY FOR PURPOSES OF THIS CLAUSE (II), NOTEHOLDERS OF ANY SUBJECT NOTES (AND HOLDERS OF ANY BENEFICIAL INTEREST THEREIN) AND HOLDERS OF ANY OTHER INSTRUMENTS SUBJECT TO THE TRANSFER RESTRICTIONS OF SECTION 2.17(a) OF THE MASTER INDENTURE). ANY SUBSEQUENT TRANSFER OF THIS NOTE BY A TRANSFEREE SHALL BE SUBJECT TO THE LIMITATIONS OF THIS PARAGRAPH AND SHALL BE VOID AB INITIO, AND NO PERSON SHALL OTHERWISE BECOME A NOTEHOLDER OF THIS NOTE, UNLESS THIS PARAGRAPH AND THE PROVISIONS OF SECTION 2.17(a) OF THE MASTER INDENTURE ARE SATISFIED. {FOR DEFINITIVE NOTES ONLY: THE AUTHORIZED AGENT SHALL NOT REGISTER ANY TRANSFER OF THIS NOTE UNLESS THE AUTHORIZED AGENT (IN CONSULTATION WITH THE ISSUER) HAS CONFIRMED THAT AFTER SUCH TRANSFER, THE REQUIREMENTS OF SECTION 2.17(a) OF THE MASTER INDENTURE SHALL HAVE BEEN SATISFIED}. THE ISSUER SHALL NOT RECOGNIZE ANY PROHIBITED TRANSFER DESCRIBED IN THIS PARAGRAPH, INCLUDING WITHOUT LIMITATION BY (I) REDEEMING THE TRANSFEROR’S INTEREST, OR (II) RECOGNIZING THE TRANSFEREE AS A NOTEHOLDER OR OTHERWISE RECOGNIZING ANY RIGHT OF THE TRANSFEREE (INCLUDING, WITHOUT LIMITATION, ANY RIGHT OF THE TRANSFEREE TO RECEIVE PAYMENTS OR OTHER DISTRIBUTIONS FROM THE ISSUER, DIRECTLY OR INDIRECTLY).
EACH NOTEHOLDER OF THIS NOTE AND EACH OWNER OF A BENEFICIAL INTEREST IN THIS NOTE REPRESENTS AND AGREES THAT IF IT IS PART OF A SECTION 385 EXPANDED GROUP (OR IS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO A SECTION 385 EXPANDED GROUP), AND IF THE ISSUER IS TREATED AS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO SUCH SECTION 385 EXPANDED GROUP (ASSUMING SOLELY FOR THIS PURPOSE THAT THIS NOTE IS TREATED FOR U.S. FEDERAL INCOME TAX PURPOSES AS EQUITY), THEN NEITHER IT NOR ANY MEMBER OF (NOR ANY SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO) SUCH SECTION 385 EXPANDED GROUP WILL OWN OR WILL THEREAFTER (FOR SO LONG AS THIS NOTES IS SO OWNED) OWN ANY NOTES (THAT ARE OUTSTANDING FOR U.S. FEDERAL INCOME TAX PURPOSES) OF A CLASS OR SERIES SENIOR TO THIS NOTE (“SENIOR NOTES”), UNLESS SUCH NOTEHOLDER (OR OWNER) HAS EITHER (1) OBTAINED AND PROVIDED TO THE NOTE REGISTRAR AND THE ISSUER AN OPINION OF U.S. TAX COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO
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THE EFFECT THAT, UNDER THEN-EXISTING LAW, SUCH ACQUISITION AND OWNERSHIP OF SENIOR NOTES SHOULD NOT (ASSUMING SOLELY FOR THIS PURPOSE THAT THIS NOTE IS TREATED FOR U.S. FEDERAL INCOME TAX PURPOSES AS EQUITY) CAUSE SECTION 385 OF THE CODE, AND ANY PROPOSED, TEMPORARY, OR FINAL TREASURY REGULATIONS PROMULGATED THEREUNDER, TO APPLY TO SUCH SENIOR NOTES SO AS TO CAUSE ANY SUCH SENIOR NOTES TO BE RECLASSIFIED AS (OR GIVING RISE TO) EQUITY FOR U.S. FEDERAL INCOME TAX PURPOSES OR (2) AFTER HAVING PROVIDED THE NOTE REGISTRAR AND THE ISSUER SUCH INFORMATION, REPRESENTATIONS AND COVENANTS AS MAY BE REQUIRED BY THE ISSUER (IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER IN ITS SOLE DISCRETION) RELATING TO THE RISK OF RECHARACTERIZATION OF ANY SUCH SENIOR NOTES AS EQUITY UNDER TREASURY REGULATION SECTION 1.385-3, OBTAINS A WRITTEN CONFIRMATION FROM THE ISSUER THAT THE FOREGOING OPINION IS NOT REQUIRED. THE PRECEDING SENTENCE SHALL NOT APPLY IF EACH MEMBER OF THE SECTION 385 EXPANDED GROUP THAT INCLUDES SUCH NOTEHOLDER OR BENEFICIAL OWNER (OR WITH RESPECT TO WHICH SUCH NOTEHOLDER OR BENEFICIAL OWNER IS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY) IS A MEMBER OF THE SAME CONSOLIDATED GROUP (AS DESCRIBED IN TREASURY REGULATION SECTION 1.1502-1(H)) THAT FILES A CONSOLIDATED U.S. FEDERAL INCOME TAX RETURN.]
[In the case of any Note that is a U.S.-Restricted Note:
EACH NOTEHOLDER OF THIS NOTE AGREES (AND EACH APPLICABLE PERSON BY VIRTUE OF ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE (OR BY VIRTUE OF AGREEING TO ACT AS AN AGENT, REPRESENTATIVE OR INTERMEDIARY OF OR WITH RESPECT TO THE HOLDER OF SUCH A BENEFICIAL INTEREST) IS DEEMED TO AGREE) THAT THIS NOTE (AND ANY INTEREST THEREIN) MAY BE HELD ONLY BY UNITED STATES PERSONS AS DEFINED IN SECTION 7701(A)(30) OF THE CODE, AND THAT HE, SHE OR IT SHALL NOT MAKE ANY ISSUANCE, DELIVERY, SALE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE (OR ANY BENEFICIAL INTEREST IN THIS NOTE), AND ANY ISSUANCE, DELIVERY, SALE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE (OR ANY BENEFICIAL INTEREST IN THIS NOTE) WILL NOT BE EFFECTIVE AND WILL BE VOID AB INITIO, IF IT WOULD RESULT IN ANY PERSON THAT IS NOT A UNITED STATES PERSON HOLDING THIS NOTE OR ANY INTEREST THEREIN.]
[In the case of Notes, other than Subject Notes that, pursuant to Section 2.19(b), are to be reported as equity for U.S. federal income tax purposes:
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EACH NOTEHOLDER OF THIS NOTE AGREES TO TREAT THIS NOTE AS DEBT FOR U.S. FEDERAL INCOME TAX PURPOSES.]
[In the case of Subject Notes that, pursuant to Section 2.19(b), are to be reported as equity for U.S. federal income tax purposes:
EACH NOTEHOLDER OF THIS NOTE AGREES TO TREAT THIS NOTE AS EQUITY FOR U.S. FEDERAL INCOME TAX PURPOSES.]
Section 2.03Note Registrar and Paying Agent.
(a)With respect to each Series of Notes, there shall at all times be maintained an office or agency in the location set forth in Section 13.04 where Notes of such Series may be presented or surrendered for registration of transfer or for exchange (each, a “Note Registrar”), and for payment thereof (each, a “Paying Agent”) and where notices to or demands upon the Issuer in respect of such Equipment Notes may be served. For so long as any Series of Notes is listed on any stock exchange, the Issuer shall appoint and maintain a Paying Agent and a Note Registrar acting for this purpose as an agent of the Issuer in the jurisdiction in which such stock exchange is located. The Issuer shall cause each Note Registrar to keep a register of the Notes for which it is acting as Note Registrar and of their transfer and exchange (the “Register”), which shall include the name and address of, and the Outstanding Principal Balance owing to, each Noteholder. Written notice of the location of each such other office or agency and of any change of location thereof shall be given by the Indenture Trustee to the Issuer and the Noteholders of the Notes of such Series so long as U.S. Bank is acting as Note Registrar and Paying Agent. In the event that no such office or agency shall be maintained or no such notice of location or of change of location shall be given, presentations and demands may be made and notices may be served at the Corporate Trust Office of the Indenture Trustee. Notwithstanding anything to the contrary in this Master Indenture, the entries in the Register shall be conclusive, in the absence of manifest error, and the Issuer, the Indenture Trustee, and the Noteholders shall treat each Person in whose name a Note is registered as the beneficial owner thereof (including with respect to all payments of principal and stated interest thereon) for all purposes of this Master Indenture. No transfer of a Note shall be effective unless such transfer has been recorded in the Register as provided in this Section. U.S. Bank shall initially be a Paying Agent and Note Registrar hereunder with respect to the Notes.
(b)Each Authorized Agent shall (i) maintain an office or agency in the location listed as its address set forth in Section 13.04, (ii) be a bank, trust company or a corporation organized and doing business under the laws of the United States or any state or territory thereof or of the District of Columbia, with a combined capital and surplus of at least $75,000,000 (or having a combined capital and surplus in excess of $5,000,000 and the obligations of which, whether now in existence or hereafter incurred, are fully and unconditionally guaranteed by a corporation organized and doing business under the laws of the United States, any state or territory thereof or of the District of Columbia and having a combined capital and surplus of at least $75,000,000), and (iii)
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be authorized under the laws of the United States or any state or territory thereof to exercise corporate trust powers, subject to supervision by Federal or state authorities (such requirements, the “Eligibility Requirements”). Each Note Registrar other than the Indenture Trustee shall furnish to the Indenture Trustee, at stated intervals of not more than six months, and at such other times as the Indenture Trustee may request in writing, a copy of the Register maintained by such Note Registrar.
(c)Any Person into which any Authorized Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authorized Agent shall be a party, or any Person succeeding to the corporate trust business of any Authorized Agent, shall be the successor of such Authorized Agent hereunder, if such successor Person is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authorized Agent or such successor Person.
(d)Any Authorized Agent may at any time resign by giving written notice of resignation to the Indenture Trustee and the Issuer. The Issuer may, and at the request of the Indenture Trustee shall, at any time terminate the agency of any Authorized Agent by giving written notice of termination to such Authorized Agent and to the Indenture Trustee. Upon the resignation or termination of an Authorized Agent or if at any time any such Authorized Agent shall cease to be eligible under this Section (when, in either case, no other Authorized Agent performing the functions of such Authorized Agent shall have been appointed by the Indenture Trustee), the Issuer shall promptly appoint one or more qualified successor Authorized Agents to perform the functions of the Authorized Agent that has resigned or whose agency has been terminated or who shall have ceased to be eligible under this Section. The Issuer shall give written notice of any such appointment made by it to the Indenture Trustee; and in each case the Indenture Trustee shall send notice of such appointment to all Noteholders of the Notes of the related Series as their names and addresses appear on the Register for the Notes of such Series.
(e)The Issuer agrees to pay, or cause to be paid, from time to time reasonable compensation to each Authorized Agent for its services and to reimburse it for its reasonable expenses to be agreed to pursuant to separate agreements with each such Authorized Agent.
Section 2.04Paying Agent to Hold Money in Trust. The Indenture Trustee shall require each Paying Agent other than the Indenture Trustee to agree in writing that all moneys deposited with any Paying Agent for the purpose of any payment on the Notes shall be deposited and held in trust for the benefit of the Noteholders entitled to such payment, subject to the provisions of this Section. Moneys so deposited and held in trust shall constitute a separate trust fund for the benefit of the Noteholders with respect to which such money was deposited. No Paying Agent shall hold monies payable by the Issuer to Hedge Providers.
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The Indenture Trustee may at any time, for the purpose of obtaining the satisfaction and discharge of this Master Indenture or for any other purpose, direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such moneys.
Section 2.05Method of Payment.
(a)On each Payment Date, the Indenture Trustee shall, or shall instruct a Paying Agent to, pay to the Noteholders of each Series all interest, principal, premium and/or other distributions, if any, on the Notes of such Series required to be paid on such Payment Date, in each case to the extent of the Available Collections Amount and pursuant to the Flow of Funds; provided, that in the event and to the extent receipt of any payment is not confirmed by the Indenture Trustee or such Paying Agent by noon (New York City time) on such Payment Date or any Business Day thereafter, distribution thereof shall be made on the Business Day following the Business Day such payment is received; provided further, that payment on a Regulation S Temporary Book-Entry Note shall be made to the Noteholder thereof only in conformity with Section 2.05(c). Each such payment on any Payment Date other than the final payment with respect to any Series of Notes shall be made by the Indenture Trustee or the Paying Agent to the Noteholders as of the Record Date for such Payment Date. The final payment with respect to any Note, however, shall be made only upon presentation and surrender of such Note by the Noteholder or its agent at the Corporate Trust Office or agency of the Indenture Trustee or Paying Agent specified in the notice given by the Indenture Trustee or Paying Agent with respect to such final payment.
(b)At such time, if any, as the Notes of any Series are issued in the form of Definitive Notes, payments on a Payment Date shall be made by wire transfer to an account designated by each Noteholder in writing at least five (5) Business Days prior to such Payment Date, provided that if a Noteholder has not provided such information on a timely basis such payment shall be made by check mailed to each Noteholder of a Definitive Note on the applicable Record Date at its address appearing on the Register maintained with respect to such Series; provided that the final payment for each Series of Notes shall be made only upon presentation and surrender of the Definitive Notes of such Series by the Noteholder or its agent at the Corporate Trust Office or agency of the Indenture Trustee or Paying Agent specified in the notice of such final payment given by the Indenture Trustee or Paying Agent. The Indenture Trustee or Paying Agent shall mail such notice of the final payment of such Series to each of the Noteholders of such Series, specifying the date and amount of such final payment.
(c)The beneficial owner of a Regulation S Temporary Book-Entry Note of any Series may arrange to receive interest, principal and premium payments through Euroclear or Clearstream on such Regulation S Temporary Book-Entry Note only after delivery by such beneficial owner to Euroclear or Clearstream, as the case may be, of a written certification substantially in the form of Exhibit A-3 hereto, and upon delivery of
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Euroclear or Clearstream, as the case may be, to the Paying Agent of a certification or certifications substantially in the form of Exhibit A-4 hereto. No interest, principal or premium shall be paid to any beneficial owner, and no interest, principal or premium shall be paid to Euroclear or Clearstream on such beneficial owner’s interest in a Regulation S Temporary Book-Entry Note unless Euroclear or Clearstream, as the case may be, has provided such a certification to the Paying Agent with respect to such interest, principal and/or premium.
Section 2.06Minimum Denomination. Unless otherwise specified in the Series Supplement for a Series, each Note shall be issued in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof; provided that, notwithstanding anything to the contrary herein, one Note of each Class of a Series may be issued with such excess in integral multiples of $1.
Section 2.07Exchange Option. If the holder (other than an Initial Purchaser) of a beneficial interest in an Unrestricted Book-Entry Note deposited with DTC wishes at any time to exchange its interest in the Unrestricted Book-Entry Note, or to transfer its interest in the Unrestricted Book-Entry Note to a Person who wishes to take delivery thereof in the form of an interest in the 144A Book-Entry Note, the holder may, subject to the rules and procedures of Euroclear or Clearstream and DTC, as the case may be, give directions for the Indenture Trustee and Note Registrar to exchange or cause the exchange or transfer or cause the transfer of the interest for an equivalent beneficial interest in the 144A Book-Entry Note. Upon receipt by the Indenture Trustee and Note Registrar of (a) instructions from Euroclear or Clearstream (based on instructions from depositaries for Euroclear and Clearstream) or from a DTC Participant, as applicable, or DTC, as the case may be, directing the Indenture Trustee and Note Registrar to credit or cause to be credited a beneficial interest in the 144A Book-Entry Note equal to the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or transferred (such instructions to contain information regarding the DTC Participant account to be credited with the increase, and, with respect to an exchange or transfer of an interest in the Unrestricted Book-Entry Note, information regarding the DTC Participant account to be debited with the decrease), and (b) a certificate in the form of Exhibit A-8, given by the Noteholder (and the proposed transferee, if applicable), the Indenture Trustee and Note Registrar shall instruct DTC to reduce the Unrestricted Book-Entry Note by the aggregate principal amount of the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or transferred, and the Indenture Trustee shall instruct DTC, concurrently with the reduction, to increase the principal amount of the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the Unrestricted Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in the instructions a beneficial interest in the 144A Book-Entry Note equal to the reduction in the principal amount of the Unrestricted Book-Entry Note.
If a holder (other than an Initial Purchaser) of a beneficial interest in the 144A Book-Entry Note wishes at any time to exchange its interest in the 144A Book-Entry
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Note for an interest in a Regulation S Book-Entry Note, or to transfer its interest in the 144A Book-Entry Note to a Person who wishes to take delivery thereof in the form of an interest in the Regulation S Book-Entry Note, the holder may, subject to the rules and procedures of DTC, give directions for the Indenture Trustee and Note Registrar to exchange or cause the exchange or transfer or cause the transfer of the interest for an equivalent beneficial interest in the Regulation S Book-Entry Note. Upon receipt by the Indenture Trustee and Note Registrar of (a) instructions given in accordance with DTC’s procedures from a DTC Participant directing the Indenture Trustee and Note Registrar to credit or cause to be credited a beneficial interest in the Regulation S Book-Entry Note in an amount equal to the beneficial interest in the 144A Book-Entry Note to be exchanged or transferred, (b) a written order given in accordance with DTC’s procedures containing information regarding the account of the depositaries for Euroclear or Clearstream or another Clearing Agency Participant, as the case may be, to be credited with the increase and the name of the account and (c) certificates in the forms of Exhibits A-5 and A-7, respectively, given by the Noteholder and the proposed transferee of the interest, the Indenture Trustee and Note Registrar shall instruct DTC to reduce the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred, and the Indenture Trustee and Note Registrar shall instruct DTC, concurrently with the reduction, to increase the principal amount of the Regulation S Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in the instructions a beneficial interest in the Regulation S Book-Entry Note equal to the reduction in the principal amount of the 144A Book-Entry Note.
Notwithstanding anything to the contrary herein, an Initial Purchaser may exchange beneficial interests in the Regulation S Temporary Book-Entry Note held by it for interests in the 144A Book-Entry Note only after delivery by the Initial Purchaser of instructions to DTC for the exchange, substantially in the form of Exhibit A-6 hereto. Upon receipt of the instructions provided in the preceding sentence, the Indenture Trustee and Note Registrar shall instruct DTC to reduce the principal amount of the Regulation S Temporary Book-Entry Note to be so transferred and shall instruct DTC to increase the principal amount of the 144A Book-Entry Note and credit or cause to be credited to the account of the placement agent a beneficial interest in the 144A Book-Entry Note having a principal amount equal to the amount by which the principal amount of the Regulation S Temporary Book-Entry Note was reduced upon the transfer pursuant to the instructions provided in the first sentence of this paragraph.
If a Book-Entry Note is exchanged for a Definitive Note, such Equipment Notes may be exchanged or transferred for one another only in accordance with such procedures as are substantially consistent with the provisions of the three immediately preceding paragraphs (including the certification requirements intended to ensure that the exchanges or transfers comply with Rule 144 or Regulation S, as the case may be) and as may be from time to time adopted by the Indenture Trustee.
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Section 2.08Mutilated, Destroyed, Lost or Stolen Notes. If any Note shall become mutilated, destroyed, lost or stolen, the Issuer shall issue, upon the written request of the Noteholder thereof and presentation of the Note or satisfactory evidence of destruction, loss or theft thereof to the Indenture Trustee or Note Registrar, and the Indenture Trustee shall authenticate and the Indenture Trustee or Note Registrar shall deliver in exchange therefor or in replacement thereof, a new Note of the same Series and Class (if applicable), payable to such Noteholder in the same principal amount, of the same maturity, with the same payment schedule, bearing the same interest rate and dated the date of its authentication. If the Note being replaced has become mutilated, such Note shall be surrendered to the Indenture Trustee or a Note Registrar and forwarded to the Issuer by the Indenture Trustee or such Note Registrar. If the Note being replaced has been destroyed, lost or stolen, the Noteholder thereof shall furnish to the Issuer, the Indenture Trustee or a Note Registrar (i) such security or indemnity as may be required by them to save the Issuer, the Indenture Trustee and such Note Registrar harmless and (ii) evidence satisfactory to the Issuer, the Indenture Trustee and such Note Registrar of the destruction, loss or theft of such Note and of the ownership thereof. The Noteholder will be required to pay any tax or other governmental charge imposed in connection with such exchange or replacement and any other expenses (including the fees and expenses of the Indenture Trustee and any Note Registrar) connected therewith.
Section 2.09Payments of Transfer Taxes. Upon the transfer of any Note or Notes pursuant to Section 2.07, the Issuer or the Indenture Trustee may require from the party requesting such new Note or Notes payment of a sum to reimburse the Issuer or the Indenture Trustee for, or to provide funds for the payment of, any transfer tax or similar governmental charge payable in connection with the transfer.
Section 2.10Book-Entry Registration.
(a)Upon the issuance of any Book-Entry Notes, DTC or its custodian will credit, on its book-entry registration and transfer system, the respective principal amounts of the individual beneficial interests represented by such Book-Entry Notes to the accounts of a Direct Participant. Ownership of beneficial interests in a Book-Entry Note will be limited to DTC Participants or Persons who hold interests through DTC Participants. Ownership of beneficial interests in the Book-Entry Notes will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC (with respect to interests of DTC Participants) and the records of DTC Participants (with respect to interests of Persons other than DTC Participants).
(b)So long as DTC, or its nominee, is the registered owner or holder of a Book-Entry Note, DTC or such nominee, as the case may be, will be considered the sole owner or Noteholder represented by such Book-Entry Note for all purposes under this Master Indenture, the Series Supplements and the Book-Entry Notes. Unless (a) DTC notifies the Issuer that it is unwilling or unable to continue as depository for a Book-Entry Note with respect to a Series, (b) the Issuer elects to terminate the book-
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entry system for the Book-Entry Notes with respect to a Series, or (c) an Event of Default has occurred and the Indenture Trustee acting at the Direction of the Control Party for the applicable Series certifies that continuation of a book-entry system through DTC (or a successor) for the Equipment Notes of such Series is no longer in the best interests of the Noteholders of such Series, owners of beneficial interests in a Book-Entry Note of such Series will not be entitled to have any portion of such Book-Entry Note registered in their names, will not receive or be entitled to receive physical delivery of Equipment Notes in definitive form and will not be considered to be the owners or Noteholders under this Master Indenture, the applicable Series Supplement or the Book-Entry Notes. In addition, no beneficial owner of an interest in a Book-Entry Note will be able to transfer that interest except in accordance with DTC’s applicable procedures (in addition to those under the related Series Supplement and those of Clearstream and Euroclear, in each case, as applicable).
(c)Investors may hold their interest in a Regulation S Book-Entry Note through Clearstream or Euroclear, if they are participants in such systems, or indirectly through organizations that are participants in such systems. After the Exchange Date, investors also may hold such interests through organizations other than Clearstream and Euroclear that are DTC Participants. Clearstream and Euroclear will hold interests in a Regulation S Book-Entry Note on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries, which in turn will hold such interests in a Regulation S Book-Entry Note in customers’ accounts in the depositaries’ names on the books of DTC. Investors may hold their interests in a 144A Book-Entry Note directly through DTC, if they are DTC Participants, or indirectly through organizations that are DTC Participants.
(d)All payments of principal and interest will be made by the Paying Agent on behalf of the Issuer in immediately available funds or the equivalent, so long as DTC continues to make its Same-Day Funds Settlement System available to the Issuer.
None of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such registration instructions. Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the Persons in whose name the Definitive Notes are registered in the Register as Noteholders hereunder. Neither the Issuer nor the Indenture Trustee shall be liable if the Indenture Trustee or the Issuer is unable to locate a qualified successor Noteholder.
Definitive Notes of a Series will be transferable and exchangeable for Definitive Notes of the same Series at the office of the Indenture Trustee or the office of a Note Registrar upon compliance with the requirements set forth herein. In the case of a transfer of only part of a holding of Definitive Notes, a new Definitive Note shall be issued to the transferee in respect of the part transferred and a new Definitive Note in
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respect of the balance of the holding not transferred shall be issued to the transferor and may be obtained at the office of the applicable Note Registrar.
(e)Any beneficial interest in one of the Book-Entry Notes of any Series that is transferred to a Person who takes delivery in the form of an interest in another Book-Entry Note of the same Series will, upon transfer, cease to be an interest in such Book-Entry Note and become an interest in such other Book-Entry Note and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Book-Entry Note for as long as it remains such an interest.
(f)Any Definitive Note delivered in exchange for an interest in a 144A Book-Entry Note pursuant to Section 2.07 shall bear the Private Placement Legend applicable to a 144A Book-Entry Note set forth in Section 2.02.
(g)Any Definitive Note delivered in exchange for an interest in an Unrestricted Book-Entry Note pursuant to Section 2.07 shall bear the Private Placement Legend applicable to a Unrestricted Book-Entry Note set forth in Section 2.02.
Section 2.11Special Transfer Provisions.
(a)Transfers of Equipment Notes to Non-QIB Institutional Accredited Investors. The following provisions shall apply with respect to the registration of any proposed transfer of an Equipment Note (other than a Regulation S Temporary Book-Entry Note) or any interest therein to any Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons):
(i)The Note Registrar shall register the transfer of any Equipment Note, whether or not such Equipment Note bears the Private Placement Legend, if the proposed transferee has delivered to the Note Registrar (A) a certificate substantially in the form of Exhibit B hereto and (B) an Opinion of Counsel acceptable to the Issuer that such transfer is in compliance with the Securities Act.
(ii)If the proposed transferor is a Direct Participant holding a beneficial interest in the 144A Book-Entry Note, upon receipt by the Note Registrar of (x) the documents, if any, required by paragraph (i) and (y) instructions given in accordance with the DTC’s and the Note Registrar’s procedures, the Note Registrar shall reflect on its books and records the date and a decrease in the principal amount of the 144A Book-Entry Note in an amount equal to the principal amount of the beneficial interest in the 144A Book-Entry Note to be transferred, and the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver, one or more Definitive Notes of like tenor and amount.
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(b)Transfers of Equipment Notes to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of an interest in a 144A Book-Entry Note or a Definitive Note (other than a Subordinated Note) issued in exchange for an interest in such 144A Book-Entry Note in accordance with this Section 2.11(b) to a QIB (excluding Non-U.S. Persons):
(i)If the Equipment Note to be transferred consists of (x) Definitive Notes, the Note Registrar shall register the transfer if such transfer is being made by a proposed transferor who delivers a certificate in the form of Exhibit A-8 to the Issuer and the Note Registrar, or has otherwise advised the Issuer and the Note Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has advised the Issuer and the Note Registrar in writing, that it is purchasing the Equipment Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account are QIBs within the meaning of Rule 144A, are aware that the sale to it is being made in reliance on Rule 144A and acknowledge that they have received such information regarding the Issuer as they have requested pursuant to Rule 144A or have determined not to request such information and that they are aware that the transferor is relying upon their foregoing representations in order to claim the exemption from registration provided by Rule 144A or (y) an interest in a 144A Book-Entry Note, the transfer of such interest may be effected only through the book-entry system maintained by the DTC.
(ii)If the proposed transferee is a Direct Participant, and the Equipment Note to be transferred is a Definitive Note, upon receipt by the Note Registrar of the documents referred to in clause (i) and instructions given in accordance with the DTC’s and the Note Registrar’s procedures, the Note Registrar shall reflect on its books and records the date and an increase in the principal amount at maturity of the 144A Book-Entry Note in an amount equal to the principal amount at maturity of the Definitive Note to be transferred, and the Indenture Trustee shall cancel the Definitive Note so transferred.
(c)Transfers of Interests in a Regulation S Temporary Book-Entry Note. The following provisions shall apply with respect to registration of any proposed transfer of interests in a Regulation S Temporary Book-Entry Note:
(i)The Note Registrar shall register the transfer of any interest in a Regulation S Temporary Book-Entry Note (x) if the proposed transferee is a Non-U.S. Person and the proposed transferor has delivered to the Note Registrar a certificate substantially in the form of Exhibit A-7 or (y) if the proposed transferee is a QIB and the proposed transferor has checked the box provided for on the form of such Equipment Note stating, or has otherwise advised the Issuer and the Note Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has advised the Issuer and the
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Note Registrar in writing, that it is purchasing such Equipment Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account are QIBs within the meaning of Rule 144A, are aware that the sale to them is being made in reliance on Rule 144A and acknowledge that they have received such information regarding the Issuer as they have requested pursuant to Rule 144A or have determined not to request such information and that they are aware that the transferor is relying upon their foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(ii)If the proposed transferee is a Direct Participant that provides the documents referred to in clause (i)(y) above, upon receipt by the Note Registrar of such documents and instructions given in accordance with DTC’s and the Note Registrar’s procedures, the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of the 144A Book-Entry Note of the relevant Series, in an amount equal to the principal amount of the Regulation S Temporary Book-Entry Note of such Series to be transferred, and the Indenture Trustee shall decrease the amount of the Regulation S Temporary Book-Entry Note of such Series.
(d)Transfers of Interests in an Unrestricted Book-Entry Note. The Note Registrar shall register any transfer of interests in an Unrestricted Book-Entry Note, or a Definitive Note issued in exchange for an interest in a Regulation S Temporary Book-Entry Note or Unrestricted Book-Entry Note in accordance with Section 2.11(b), to U.S. Persons in accordance with Section 2.07, or to Non-U.S. Persons in accordance with the applicable procedures of Euroclear or Clearstream and their respective participants.
(e)Transfers of Equipment Notes to Non-U.S. Persons at any Time. With respect to any transfer of an Equipment Note to a Non-U.S. Person prior to the applicable Exchange Date, the Note Registrar shall register any proposed transfer of a Regulation S Temporary Book-Entry Note to a Non-U.S. Person upon receipt of a certificate substantially in the form of Exhibit A-7 from the proposed transferor.
(f)Transfers and Exchanges of Subordinated Notes. The Subordinated Notes or any beneficial interests therein may not be sold, pledged or otherwise transferred without an effective registration statement under the Securities Act related thereto or receipt by the Issuer of an opinion of counsel in a form satisfactory to the Issuer that such registration is not required under the Securities Act. Subject to Section 2.01(c)(vii) hereof, at the written instruction of the Authorized Agent from time to time, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver to the Authorized Agent, new and replacement Definitive Notes, as applicable, representing the Subordinated Notes, in the principal amounts and in the names so specified by the Authorized Agent in writing, and the applicable existing Definitive Notes held by the Authorized Agent for the benefit of the Noteholders of the Subordinated
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Notes will be exchanged for new Definitive Notes accordingly. The issuance of any new or replacement Definitive Notes, as applicable, shall not create any new obligation on the part of the Issuer or the Indenture Trustee to make payments to any party other than the Authorized Agent, who will remain solely liable for distribution of amounts received in connection with the Subordinated Notes to the Noteholders of such Subordinated Notes.
(g)ERISA Transfer Restrictions.
(i)With respect to a Class A Equipment Note or Class B Equipment Note, each purchaser and subsequent transferee of any such Equipment Note will be deemed to have represented and warranted either that (A) it is not and is not using the assets of an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, a “plan” as defined by and subject to Section 4975 of the Code (a “Plan”), an entity whose underlying assets include “plan assets” by reason of an employee benefit plan’s or other plan’s investment in such entity (a “Benefit Plan”), or a governmental plan, non-U.S. plan or church plan subject to any federal, state, local or other law that is substantially similar to Title I of ERISA or Section 4975 of the Code (“Similar Law”), or (B) the purchase and holding of such Equipment Note will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of Similar Law. Additionally, if a purchaser or transferee is a Benefit Plan, it will be deemed to represent by its purchase or acquisition of a Class A Equipment Note or Class B Equipment Note (or an interest therein) that (i) none of the Transaction Parties have provided any investment advice within the meaning of Section 3(21) of ERISA to the Benefit Plan, or to any fiduciary or other person investing on behalf of the Benefit Plan or who otherwise has discretion or authority over the investment and management of “plan assets” of the Benefit Plan, in connection with its acquisition of such Notes, and (ii) no Transaction Party is acting as a fiduciary to the Benefit Plan in connection with the Benefit Plan’s purchase or acquisition of such Notes.
(ii)With respect to a Class C Equipment Note or Class R Note, each purchaser and subsequent transferee of any such Note will be deemed to have represented and warranted that (A) it is not and is not using the assets of an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, a Plan, or an entity whose underlying assets include “plan assets” by reason of an employee benefit plan’s or other plan’s investment in such entity and (B) it is not and is not using the assets of a governmental plan, non-U.S. plan or church plan that is subject to any Similar Law.
(h)General. By its acceptance of any Equipment Note bearing the Private Placement Legend, each Noteholder of such Equipment Note acknowledges the restrictions on transfer of such Equipment Note set forth in this Master Indenture and in the Private Placement Legend and agrees that it will transfer such Equipment Note only
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as provided in this Master Indenture. The Note Registrar shall not register a transfer of any Equipment Note unless such transfer complies with the restrictions on transfer of such Equipment Note set forth in this Master Indenture. In connection with any transfer of Equipment Notes, each Noteholder agrees by its acceptance of its Equipment Notes to furnish the Indenture Trustee the certifications and legal opinions described herein to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act; provided that the Indenture Trustee shall not be required to determine (but may rely on a determination made by the Issuer with respect to) the sufficiency of any such legal opinions.
Section 2.12Temporary Definitive Notes. Pending the preparation of Definitive Notes of a Series, the Issuer may execute and the Indenture Trustee may authenticate and deliver temporary Definitive Notes of such Series which are printed, lithographed, typewritten or otherwise produced, in any denomination, containing substantially the same terms and provisions as are set forth in the applicable exhibit to the related Series Supplement, except for such appropriate insertions, omissions, substitutions and other variations relating to their temporary nature as the Authorized Representative of the Issuer executing such temporary Definitive Notes may determine, as evidenced by his execution of such temporary Definitive Notes.
If temporary Definitive Notes of a Series are issued, the Issuer will cause Definitive Notes of such Series to be prepared without unreasonable delay. After the preparation of Definitive Notes of such Series, the temporary Definitive Notes shall be exchangeable for Definitive Notes upon surrender of such temporary Definitive Notes at the Corporate Trust Office of the Indenture Trustee, without charge to the Noteholder thereof. Upon surrender for cancellation of any one or more temporary Definitive Notes, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor Definitive Notes of the same Series, in authorized denominations and in the same aggregate principal amounts. Until so exchanged, such temporary Definitive Notes shall in all respects be entitled to the same benefits under this Master Indenture as Definitive Notes.
Section 2.13Statements to Noteholders.
(a)With respect to each Collection Period, the Issuer shall, not later than the last Business Day before the Payment Date immediately following the last day of such Collection Period, cause the Administrator to deliver to the Indenture Trustee, and the Indenture Trustee shall (or shall instruct any Paying Agent to) promptly thereafter (but not later than such Payment Date) make available on the Indenture Trustee’s internet website, initially located at https://pivot.usbank.com, to each Rating Agency, each Hedge Provider and each Liquidity Facility Provider, and to each Noteholder of record with respect to such Payment Date, a report, substantially in the form attached as Exhibit C-1 hereto prepared by the Administrator or Servicer and setting forth the information described therein (each, a “Monthly Report”). Beginning in
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December of 2021, the Issuer shall cause the Administrator or Servicer to deliver to the Indenture Trustee with the Monthly Report for each December, and the Indenture Trustee shall (or shall instruct any Paying Agent to) make available at its internet website with the Monthly Report for each December to the Persons described in the first sentence in this Section 2.13(a), a report, substantially in the form attached as Exhibit C-2 hereto prepared by the Administrator or Servicer and setting forth the information described therein (each, an “Annual Report”). As soon as practicable following receipt, the Indenture Trustee shall (or shall instruct any Paying Agent to) make available to each Noteholder of record at the time of such posting at its internet website the Green Bond Report delivered by the Administrator pursuant to the Administrative Services Agreement. The Indenture Trustee shall also make available at its internet website, promptly upon written request, a copy of each Monthly Report and Annual Report to any Noteholder or other Secured Party and, at the written request of any Noteholder, to any prospective purchaser of any Notes from such Noteholder. If any Series of Notes is then listed on any stock exchange, the Indenture Trustee also shall make available at its internet website a copy of each Monthly Report and each Annual Report to the applicable listing agent on behalf of such stock exchange. The Indenture Trustee may change its website from time to time as shall be specified by the Indenture Trustee from time to time in writing to the Issuer, the Noteholders and each Rating Agency. In connection with providing access to the Indenture Trustee’s internet website, the Indenture Trustee may require registration and the acceptance of a disclaimer. The Indenture Trustee shall not be liable for the dissemination of information in accordance with this Indenture.
(b)After the end of each calendar year but not later than the latest date permitted by law, the Administrator or Servicer shall deliver to the Indenture Trustee, and the Indenture Trustee shall (or shall instruct any Paying Agent to) furnish to each Person who at any time during such calendar year was a Noteholder of record of any Notes, a statement (for example, a Form 1099 or any other means required by law) prepared by the Administrator or Servicer containing such information as is required to be provided to such Person for U.S. federal income tax purposes with respect to each Series of Notes for such calendar year or, in the event such Person was a Noteholder of record of any Series during only a portion of such calendar year, for the applicable portion of such calendar year, and such other items as are readily available to the Administrator or Servicer and which a Noteholder shall reasonably request as necessary for the purpose of such Noteholder’s preparation of its U.S. federal income or other tax returns. So long as any of the Equipment Notes are registered in the name of DTC or its nominee, such report and such other items will be prepared on the basis of such information supplied to the Administrator by DTC and the Direct Participants, and will be delivered by the Indenture Trustee, when received from the Administrator or Servicer, to DTC for transfer to the applicable beneficial owners in the manner described above. In the event that any such information has been provided by any Paying Agent directly to such Person through other tax-related reports or otherwise, the Indenture Trustee in its capacity as Paying Agent shall not be obligated to comply with such request for information.
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(c)At such time, if any, as the Notes of any Series are issued in the form of Definitive Notes, the Indenture Trustee shall prepare and deliver the information described in Section 2.13(b) to each Noteholder of record of a Definitive Note of such Series for the period of its ownership of such Definitive Notes as the same appears on the records of the Indenture Trustee.
(d)Whenever a notice or other communication is required under this Master Indenture to be given to Noteholders of a Series: (i) if any Equipment Notes of such Series are registered with DTC, Euroclear and/or Clearstream, the Indenture Trustee shall give all such notices and communications to DTC, Euroclear and/or Clearstream, as the case may be and (ii) if Definitive Notes of a Series have been issued, then the Indenture Trustee shall give notices and communications to the Noteholders of such Definitive Notes by U.S. mail to the addresses of such Noteholders in the Register.
Section 2.14CUSIP, CINS and ISIN Numbers. The Issuer in issuing the Notes may use “CUSIP”, “CINS”, “ISIN” or other identification numbers (if then generally in use), and if so, the Indenture Trustee shall use CUSIP numbers, CINS numbers, ISIN numbers or other identification numbers, as the case may be, in notices of redemption or exchange as a convenience to Noteholders; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption or exchange and that reliance may be placed only on the other identification numbers printed on the Notes; provided further, that failure to use “CUSIP”, “CINS”, “ISIN” or other identification numbers in any notice of redemption or exchange shall not affect the validity or sufficiency of such notice.
Section 2.15Debt Treatment of the Notes. The parties hereto agree, and the holders of the Equipment Notes and interests therein, by their purchase thereof shall be deemed to have agreed, to treat the Equipment Notes as debt for U.S. federal income tax purposes (except in the case of (i) an Equipment Note held by a Person that is treated as the same taxpayer as the Issuer for U.S. federal income tax purposes or (ii) a Later Sold Note, if any, that is to be reported as equity for such purposes pursuant to Section 2.19(b)). In addition, the parties hereto agree, and the holders of the Subordinated Notes and interests therein, by their purchase thereof shall be deemed to have agreed, to treat the Subordinated Notes as debt for U.S. federal income tax purposes (except in the case of (i) a Subordinated Note held by a Person that is treated as the same taxpayer as the Issuer for U.S. federal income tax purposes or (ii) a Later Sold Note, if any, that is to be reported as equity for such purposes pursuant to Section 2.19(b)).
Section 2.16Compliance with Withholding Requirements. Notwithstanding any other provision of this Master Indenture, the Issuer and Indenture Trustee shall comply with all United States federal income tax withholding requirements (without any corresponding gross up) with respect to payments to Noteholders of interest, original
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issue discount, or other amounts that are subject to withholding under the Code, Treasury regulations thereunder, published rulings and judicial decisions. The consent of the Noteholders shall not be required for any such withholding. None of the Issuer, the Indenture Trustee, or any other party shall be obligated to pay any additional amounts to Noteholders as a result of any withholding or deduction for, or on account of, any tax imposed on or with respect to payments in respect of the Notes. For all purposes of this Master Indenture, any amount deducted or withheld pursuant to this Section 2.16 with respect to any Noteholder shall be treated as cash distributed to such Noteholder at the time it is withheld or deducted.
Section 2.17Limitation on Transfers. (a) Notwithstanding any other provision of this Master Indenture, any Note for which an Opinion of Counsel has not been rendered to the Issuer, in form and substance reasonably satisfactory to the Issuer, to the effect that such Note will be characterized as debt for United States federal income tax purposes (a “Subject Note”) shall be subject to the limitations of this Section 2.17(a). The Issuer and each Noteholder of a Subject Note agrees (and each Applicable Person by virtue of acquiring a beneficial interest in a Subject Note (or by virtue of agreeing to act as an agent, representative or intermediary of or with respect to the holder of such a beneficial interest) is deemed to agree) that no Subject Notes may be transferred, and no transfer (or purported transfer) of all or any part of a Subject Note (or any direct or indirect economic or beneficial interest therein) (a “Transferred Note”) whether to the initial Noteholder, another Noteholder or to a Person that is not a Noteholder (any of these, a “Transferee”) shall be effective, and to the greatest extent permitted under Applicable Law any such transfer (or purported transfer) shall be void ab initio, and no Person shall otherwise become a Noteholder of a Subject Note (or a holder of any direct or indirect beneficial interest therein), unless: (i) (A) either (I) the Transferee (or, if the Transferee is a disregarded entity for U.S. federal income tax purposes, the sole owner of the Transferee) is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity, a “flow-through entity”) or (II) if the Transferee (or, if the Transferee is a disregarded entity for U.S. federal income tax purposes, the sole owner of the Transferee) is or becomes a flow-through entity, then either (x) none of the direct or indirect beneficial owners of any of the interests in the Transferee have or ever will have all or substantially all the value of its interest in the Transferee attributable to the interest of the Transferee in any Transferred Note, any other Subject Notes, other interest (direct or indirect) in the Issuer, or any interest created under this Master Indenture or (y) it is not and will not be a principal purpose of the arrangement involving the investment of the Transferee in any Transferred Note to permit any partnership to satisfy the one hundred (100) partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Code, (B) the Transferee will not sell, assign, transfer or otherwise convey any participating interest in any Subject Note or any financial instrument or contract the value of which is determined by reference in whole or in part to any Subject Note, and (C) it is not acquiring, and will not sell, transfer, assign, participate, pledge or otherwise dispose of, any Transferred Note (or interest therein) or cause any Transferred Note (or interest
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therein) to be marketed, on or through an “established securities market” within the meaning of Section 7704(b) of the Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations, and (ii) after such transfer there would be no more than ninety (90) members of the limited liability company that is the Issuer (including as members, solely for purposes of this Section 2.17(a), Noteholders of any Subject Notes (and holders of any beneficial interest therein) and holders of any other instruments subject to the transfer restrictions of this Section 2.17(a)). Any subsequent transfer of a Transferred Note by a Transferee shall be subject to the limitations of this Section 2.17(a) and shall be void ab initio, and no Person shall otherwise become a Noteholder of such Transferred Note, unless this Section 2.17(a) is satisfied. In the case of Subject Notes that are Definitive Notes, the Authorized Agent shall not register any transfer of such Subject Note unless the Authorized Agent (in consultation with the Issuer) has confirmed that after such transfer, the requirements of this Section 2.17(a) shall have been satisfied. The Issuer shall not recognize any prohibited transfer described in this Section 2.17(a), including without limitation by (i) redeeming the transferor’s interest, or (ii) recognizing the Transferee as a Noteholder or otherwise recognizing any right of the Transferee (including, without limitation, any right of the Transferee to receive payments or other distributions from the Issuer, directly or indirectly). The Series Supplement relating to each Series of Subject Notes may set forth such transfer restrictions (including minimum principal denominations), certification requirements, covenants and other matters applicable to such Subject Notes that the Issuer deems advisable to effectuate the requirements of this Section 2.17(a).
(b)Notwithstanding any other provision of this Master Indenture, any Subject Note for which an Opinion of Counsel has not been rendered to the Issuer, in form and substance reasonably satisfactory to the Issuer, to the effect that such Note will or should be characterized as debt for United States federal income tax purposes (each, a “U.S.-Restricted Note”) shall be subject to the limitations of this Section 2.17(b). Each Noteholder of a U.S.-Restricted Note agrees (and each Applicable Person by virtue of acquiring a beneficial interest in a U.S.-Restricted Note (or by virtue of agreeing to act as an agent, representative or intermediary of or with respect to the holder of such a beneficial interest) is deemed to agree) that the U.S.-Restricted Note (and any interest therein) may be held only by United States persons as defined in Section 7701(a)(30) of the Code, and that he, she or it shall not make any issuance, delivery, sale, transfer or other disposition of the U.S.-Restricted Note (or any beneficial interest in the U.S.-Restricted Note), and any issuance, delivery, sale, transfer or other disposition of the U.S.-Restricted Note (or any beneficial interest in the U.S.-Restricted Note) will not be effective and will be void ab initio, if it would result in any person that is not a United States person holding the U.S.-Restricted Note or any interest therein. In addition, each U.S.-Restricted Note shall be issued only as a Definitive Note.
(c)Each Noteholder of a Subject Note and each owner of a beneficial interest in a Subject Note represents and agrees that if it is part of a Section 385
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Expanded Group (or is a Section 385 Controlled Partnership or disregarded entity with respect to a Section 385 Expanded Group), and if the Issuer is treated as a Section 385 Controlled Partnership or disregarded entity with respect to such Section 385 Expanded Group (assuming solely for this purpose that such Subject Note is treated for U.S. federal income tax purposes as equity, to the extent not otherwise so treated), then neither it nor any member of (nor any Section 385 Controlled Partnership or disregarded entity with respect to) such Section 385 Expanded Group will own or will thereafter (for so long as the Subject Notes are so owned) own any Notes (that are outstanding for U.S. federal income tax purposes) of a Class or Series senior to such Subject Notes (“Senior Notes”), unless such Noteholder (or owner) has either (i) obtained and provided to the Note Registrar and the Issuer an opinion of U.S. tax counsel in form and substance satisfactory to the Issuer to the effect that, under then-existing law, such acquisition and ownership of Senior Notes should not (assuming solely for this purpose that the Subject Notes are treated for U.S. federal income tax purposes as equity) cause Section 385 of the Code, and any proposed, temporary, or final treasury regulations promulgated thereunder, to apply to such Senior Notes so as to cause any such Senior Notes to be reclassified as (or giving rise to) equity for U.S. federal income tax purposes or (ii) after having provided the Note Registrar and the Issuer such information, representations and covenants as may be required by the Issuer (in form and substance satisfactory to the Issuer in its sole discretion) relating to the risk of recharacterization of any such Senior Notes as equity under Treasury Regulation Section 1.385-3, obtains a written confirmation from the Issuer that the foregoing opinion is not required. The preceding sentence shall not apply if each member of the Section 385 Expanded Group that includes such Noteholder or beneficial owner (or with respect to which such Noteholder or beneficial owner is a Section 385 Controlled Partnership or disregarded entity) is a member of the same consolidated group (as described in Treasury Regulation section 1.1502-1(h)) that files a consolidated U.S. federal income tax return.
Section 2.18Noteholder Tax Identification Information. Each Noteholder and holder of an interest in a Note, by acceptance of a Note or such interest therein, will be deemed to have agreed to provide the Issuer, the Indenture Trustee and each Paying Agent with such Noteholder Tax Identification Information as requested from time to time by the Issuer, the Indenture Trustee, or such Paying Agent. Each Noteholder and holder of an interest in a Note will be deemed to understand and agree that each of the Issuer, the Indenture Trustee and each Paying Agent has the right to (i) withhold tax (including without limitation taxes required to be withheld under FATCA) on interest and other applicable amounts under the Code (without any corresponding gross-up) payable with respect to each Noteholder and holder of an interest in a Note that fails to comply with the foregoing requirements or as otherwise required under the Code or other Applicable Law (including, for the avoidance of doubt, FATCA) and (ii) provide such information and documentation and any other information concerning its interest in the applicable Note to the Internal Revenue Service and any other relevant U.S. or foreign tax authority.
Section 2.19Later Sold Notes. With respect to any outstanding Notes retained by the Issuer or originally issued to the sole owner (as determined for U.S. federal
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income tax purposes) of the Issuer and that are sold by such initial holder (or any Affiliate thereof) to an unrelated purchaser at a later time (a “Later Sold Note”), such sale will not be effective unless:
(a)the Issuer shall have obtained an opinion from tax counsel to the Issuer (which opinion is based on and subject to only customary representations, assumptions and qualifications for an opinion of this nature and may rely, as to factual matters, on a certificate of a Person whose duties relate to the matters being certified) to the effect that, for U.S. federal income tax purposes, (i) such action will not cause any Note of any Outstanding Series or Class for which an Opinion of Counsel to the Issuer was rendered in connection with the original issuance of such Note to the effect that such Note is characterized as debt for U.S. federal income tax purposes, to be characterized as other than debt and (ii) such action will not cause the Issuer to be treated as an association (or publicly traded partnership) taxable as a corporation,
(b)either (i) the Issuer shall have obtained an opinion from tax counsel to the Issuer (which opinion is based on and subject to only customary representations, assumptions and qualifications for an opinion of this nature and may rely, as to factual matters, on a certificate of a Person whose duties relate to the matters being certified) to the effect that, for U.S. federal income tax purposes, such Later Sold Note will be characterized as debt or (ii) the Issuer shall designate such Later Sold Note as a Subject Note. In the event such Later Sold Note is designated as a Subject Note, (i) the Issuer shall obtain advice of tax counsel as to whether such Subject Note is appropriately reported as debt, or equity, for U.S. federal income tax purposes, and the Issuer shall comply with such advice, (ii) such Subject Note shall be subject to the restrictions set forth in Section 2.17 and shall bear the appropriate legends as set forth in Section 2.02 and (iii) any such Subject Note characterized as equity pursuant to clause (i) of this sentence, or with respect to which the Issuer did not receive an opinion from tax counsel to the effect that such Subject Note should be characterized as debt, shall be represented by a Definitive Note at all times, and
(c)either (i) such Later Sold Note has a CUSIP number that is different than that of any other Notes Outstanding immediately prior to such sale, or (ii) the Issuer receives an Opinion of Counsel that, for U.S. federal income tax purposes, either (1) such Later Sold Note has the same issue price and issue date as any Outstanding Notes that have the same CUSIP number as the Later Sold Note or (2) neither the Later Sold Notes nor the Outstanding Notes that have the same CUSIP number as the Later Sold Notes were issued with original issue discount.
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ARTICLE III

INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS
Section 3.01Establishment of Indenture Accounts; Investments.
(a)Indenture Accounts. The Administrator, on behalf and at the direction of the Issuer, will establish or cause to be established with the Indenture Trustee on or before the Initial Closing Date and maintain all of the following accounts: (i) a collections account (the “Collections Account”), (ii)  an optional reinvestment account (the “Optional Reinvestment Account”), (iii) an expense account (the “Expense Account”), (iv) a liquidity reserve account (the “Liquidity Reserve Account”) and (v) a liquidity facility collateral account (the “Liquidity Facility Collateral Account”). From time to time thereafter, the Administrator, on behalf and at the direction of the Issuer, will establish with the Indenture Trustee such other Indenture Accounts as may be authorized or required by this Master Indenture and the other Operative Agreements. The Administrator, on behalf of and at the direction of the Issuer, will establish with the Indenture Trustee on or before the Closing Date for each Series, and maintain, an account for such Series (each, a “Series Account”) and may so establish and maintain one or more sub-accounts of such Series Account for each Class of such Series (each, a “Class Account”). The Series Account and any Class Account for a Series will be identified in the Series Supplement for such Account.
(b)The Collections Account, the Optional Reinvestment Account, the Expense Account, and the Liquidity Reserve Account shall bear the account numbers set forth on Schedule 1 hereto. All amounts from time to time held in each Indenture Account (other than any Series Account) shall be held (i) in the name of the Indenture Trustee, for the benefit of the Secured Parties, and (ii) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture, and all such amounts shall constitute a part of the Collateral and shall not constitute payment of any Secured Obligation or any other obligation of the Issuer until applied as hereinafter provided. All amounts from time to time held in each Series Account shall be held (A) in the name of the Indenture Trustee, for the benefit of the Noteholders of the related Series, and (B) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture and the related Series Supplement, and all such amounts shall be collateral only for such Series and shall not constitute payment of such Series or any other obligation of the Issuer until applied as provided in this Master Indenture and the related Series Supplement.
(c)Withdrawals and Transfers. The Indenture Trustee shall have sole dominion and control over the Indenture Accounts (including, inter alia, the sole power to direct withdrawals from or transfers among the Indenture Accounts), and the Issuer shall have no right to withdraw, or to cause the withdrawal of, funds or other investments held in the Indenture Accounts or to direct the investment of such funds or the
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liquidation of any Permitted Investments, in each case, other than as expressly provided herein or, with respect to a Series Account, in a Series Supplement.
(d)Investments. For so long as any Notes remain Outstanding, the Indenture Trustee, at the written direction of the Administrator, shall invest and reinvest the funds on deposit in the Indenture Accounts (other than the Series Accounts, which shall not be invested) in Permitted Investments; provided, however, that if an Event of Default has occurred and is continuing, the Administrator shall have no right to direct such reinvestment and the Indenture Trustee shall invest such amount in Indenture Investments from the time of receipt thereof until such time as such amounts are required to be distributed pursuant to the terms of this Master Indenture. In the absence of written direction delivered to the Indenture Trustee from the Administrator, the Indenture Trustee shall invest any funds in a U.S. Bank money market deposit account. The Indenture Trustee shall make such investments and reinvestments in accordance with the terms of the following provisions:
(i)the Permitted Investments shall have maturities and other terms such that sufficient funds shall be available to make required payments pursuant to this Master Indenture on the Business Day immediately preceding the first Payment Date after which such investment is made; and
(ii)if any funds to be invested are not received in the Indenture Accounts by noon, New York City time, on any Business Day, such funds shall, if possible, be invested in a U.S. Bank money market deposit account.
(e)Earnings. Earnings on investments of funds in the Indenture Accounts shall be deposited in the Collections Account when received and credited as Collections for the Collection Period when so received, it being understood that funds in the Series Accounts shall not be invested.
(f)U.S. Bank as Securities Intermediary; Control.
(i)U.S. Bank shall act as the “securities intermediary” (within the meaning of the UCC) in respect of all securities and other property credited to the Indenture Accounts.
(ii)U.S. Bank as securities intermediary agrees with the parties hereto that each Indenture Account shall be an account to which financial assets (within the meaning of the UCC) may be credited and undertakes to treat the Indenture Trustee as entitled to exercise rights that comprise such financial assets. U.S. Bank as securities intermediary agrees with the parties hereto that each item of property credited to each Indenture Account shall be treated as such a financial asset. U.S. Bank as securities intermediary acknowledges that the “securities intermediary’s jurisdiction” as defined in the UCC with respect to the Collateral, shall be the State of New York. U.S. Bank as securities intermediary represents and covenants that it is not and will not be (as long as it is acting as
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securities intermediary hereunder) a party to any agreement in respect of the Collateral that is inconsistent with the provisions of this Master Indenture. U.S. Bank as securities intermediary agrees that any item of property credited to any Indenture Account shall not be subject to any security interest, lien, or right of setoff in favor of the securities intermediary or anyone claiming through the securities intermediary (other than the Indenture Trustee).
(iii)It is the intent of the Indenture Trustee and the Issuer that each Indenture Account shall be a securities account of the Indenture Trustee and not an account of the Issuer. Nonetheless, U.S. Bank as securities intermediary agrees that it will comply with entitlement orders originated by the Indenture Trustee without further consent by the Issuer. U.S. Bank as securities intermediary hereby further covenants that it will not agree with any person or entity (other than the Indenture Trustee) that it will comply with entitlement orders originated by such person or entity.
(iv)Nothing herein shall imply or impose upon U.S. Bank as securities intermediary any duty or obligations other than those expressly set forth herein and those applicable to a securities intermediary under the UCC (and U.S. Bank as securities intermediary hereunder shall be entitled to all of the protections available to a securities intermediary under the UCC). Without limiting the foregoing, nothing herein shall imply or impose upon U.S. Bank as securities intermediary any duties of a fiduciary nature (but not in limitation of any such duties of the Indenture Trustee hereunder).
(v)U.S. Bank as securities intermediary hereby represents and warrants and agrees with the Issuer and for the benefit of the Indenture Trustee as follows:
(A)With respect to Permitted Investments and Indenture Investments that are book entry securities, such Permitted Investments and Indenture Investments have been credited to the Indenture Trustee’s securities account by accurate book entry.
(B)The securities intermediary shall not accept entitlement orders from any other person except as authorized by the Indenture Trustee.
(C)To the extent determined by the actions of U.S. Bank as securities intermediary, the Indenture Trustee shall at all times have “control” (as defined in Section 8-106 of the UCC) over the securities account and the Permitted Investments and Indenture Investments that are book entry securities.
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(D)U.S. Bank as securities intermediary has received no notice of, and has no knowledge of any “adverse claim” (as such term is defined in the UCC) as to the Collateral.
(E)U.S. Bank as securities intermediary waives any lien, claim or encumbrance in favor of the securities intermediary in the Collateral.
(F)U.S. Bank as securities intermediary is a “securities intermediary” as such term is defined in Section 8-102(a)(14) of the UCC and in the ordinary course of its business maintains “securities accounts” for others, as such terms are used in Section 8-501 of the UCC and as securities intermediary will be acting in such capacity hereunder.
(G)U.S. Bank as securities intermediary is not a “clearing corporation,” as such term is defined in Section 8-102(a)(5) of the UCC.
(vi)Each of the Issuer and the Indenture Trustee hereby agrees and acknowledges that U.S. Bank as securities intermediary, for the benefit of the Indenture Trustee and the Secured Parties, shall have “control” over each Indenture Account under and for purposes of Section 9-104(a)(1) of the UCC.
(g)Investment Disclosure. The Issuer and the Noteholders, by their acceptance of the Notes or their interests therein, acknowledge that shares or investments in Permitted Investments or Indenture Investments are not obligations of U.S. Bank, or any parent or affiliate of U.S. Bank, are not deposits and are not insured by the FDIC. The Indenture Trustee or its affiliate may be compensated by mutual funds or other investments comprising Permitted Investments or Indenture Investments for services rendered in its capacity as investment advisor, or other service provider, and such compensation is both described in detail in the prospectuses for such funds or investments, and is in addition to the compensation, if any, paid to U.S. Bank in its capacity as Indenture Trustee hereunder. The Issuer and Noteholders agree that the Indenture Trustee shall not be responsible for any losses or diminution in the value of the Indenture Accounts occurring as a result of the investment of funds in the Indenture Accounts in accordance with the terms hereof.
(h)Brokerage Confirmations. The Issuer acknowledges that to the extent the regulations of the Comptroller of the Currency or other applicable regulatory agency grant the Issuer the right to receive brokerage confirmations of securities transactions, the Issuer waives receipt of such confirmations. The Issuer shall retain the authority to institute, participate and join in any plan of reorganization, readjustment, merger or consolidation with respect to the issuer of any Permitted Investments held hereunder, and, in general, to exercise each and every other power or right with respect to such Permitted Investments as individuals generally have and enjoy with respect to their own assets and investments, including power to vote upon any matter relating to holders of such Permitted Investments.
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Section 3.02Collections Account.
(a)Pursuant to and in accordance with the terms of the Account Administration Agreement, the Account Collateral Agent is to, upon receipt thereof, deposit in the Customer Payment Account the Collections received by it. Pursuant to and subject to the terms of the Account Administration Agreement, on each Business Day all amounts constituting Collections on deposit in the Customer Payment Account are to be transferred by the Account Collateral Agent to the Collections Account.
(b)The Indenture Trustee shall, upon receipt thereof, deposit in the Collections Account all Collections and all other payments received by it (and that are identified as such when received) in connection with the Portfolio.
(c)Additional funds may be deposited into the Collections Account from the Liquidity Reserve Account in accordance with Section 3.04, the Optional Reinvestment Account in accordance with Section 3.05 or by the Member through Capital Contributions in accordance with Section 3.17.
(d)All or any portion of any Net Disposition Proceeds from a Permitted Railcar Disposition (other than a Scrap Value Disposition) received in the Collections Account may be transferred to the Optional Reinvestment Account pursuant to Section 3.05.
(e)On each Closing Date, at the direction of the Issuer, a portion of cash proceeds from the issuance of the Notes of the applicable Series, together with the amount of any necessary Capital Contribution made by the Member to the Issuer, will be deposited in the Collections Account in order to assure sufficient funds are available for payments on the first Payment Date for such Series pursuant to Section 3.11(a).
(f)All of the transfers of funds described in this Section 3.02 will be made prior to the distribution of the Available Collections Amount pursuant to Section 3.11.
Section 3.03Withdrawal upon an Event of Default. After the occurrence of and during the continuance of an Event of Default, at the Direction of the Requisite Majority, the Indenture Trustee shall withdraw any or all funds then on deposit in any of the Indenture Accounts (other than the Series Accounts) and transfer such funds to the Collections Account for application on the next upcoming Payment Date in accordance with the Flow of Funds.
Section 3.04Liquidity Reserve Account; Liquidity Facilities.
(a)On the Initial Closing Date, the Issuer shall enter into the Initial Liquidity Facility and deliver a copy thereof to the Indenture Trustee. On or after the Initial Closing Date, the Issuer: (i) may deliver to the Indenture Trustee one or more additional Liquidity Facilities issued in accordance with Section 3.15 in an amount up to
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the Liquidity Reserve Target Amount; or (ii) shall, if the Issuer does not deliver a Liquidity Facility, or delivers a Liquidity Facility or Liquidity Facilities in an amount that is less than the Liquidity Reserve Target Amount, deposit (or cause to be deposited) in the Liquidity Reserve Account, cash in an amount necessary to cause the amount on deposit in the Liquidity Reserve Account (plus the amount of the Liquidity Facilities) to equal the Liquidity Reserve Target Amount as of such date, out of the Net Proceeds of a new Series of Additional Notes and/or from funds contributed by the Member to the Issuer as equity on or prior to such date, as applicable.
(b)On each Payment Date on which the Available Collections Amount is to be distributed pursuant to the Flow of Funds, if (i) the sum of (A) the Liquidity Facility Available Amounts for all Liquidity Facilities plus (B) the Balance in the Liquidity Reserve Account is less than (ii) the Liquidity Reserve Target Amount as of such Payment Date, the Indenture Trustee shall, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e), deposit funds into the Liquidity Reserve Account in order to restore the Balance therein to the Liquidity Reserve Target Amount as of such Payment Date, to the extent of the Available Collections Amount as provided in the Flow of Funds.
(c)If the Available Collections Amount on any Payment Date is insufficient to pay (A) the interest then due on the Outstanding Class A Equipment Notes and Outstanding Class B Equipment Notes (excluding, in each case, Additional Interest), (B) the net payments owed by the Issuer under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) and (C) all amounts senior to the interest referred to in clause (A) above (excluding Additional Interest) in the Flow of Funds, the Indenture Trustee shall, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e), effect a draw on the Liquidity Reserve Account and, if necessary, a draw on one or more Liquidity Facilities (including but not limited to amounts on deposit in any Liquidity Facility Collateral Account or such similar account described in any Additional Liquidity Facility), and make a deposit in the Collections Account for allocation as part of the Available Collections Amount on the related Payment Date, in an amount equal to the lesser of (i) the aggregate amount of the shortfalls described in clauses (A), (B) and (C) and (ii) the Balance in the Liquidity Reserve Account and/or the Liquidity Facility Available Amounts for the Liquidity Facilities, as applicable, as of the related Determination Date as set forth in such Payment Date Schedule. If the Balance in the Liquidity Reserve Account and/or the Liquidity Facility Available Amounts for the Liquidity Facilities, as applicable, as of such Determination Date is less than the aggregate amount of such shortfalls for the related Payment Date, then any such balance remaining (after transfer to the Collections Account and allocation and application to amounts senior to interest on the Equipment Notes in the Flow of Funds) will be allocated on such Payment Date, first, pro rata (x) to pay interest then due on the Outstanding Class A Equipment Notes (other than Additional Interest) and (y) to pay such net payments owed by the Issuer under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) and
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second, to pay interest then due on the Outstanding Class B Equipment Notes (other than Additional Interest). After giving effect to such allocation and payment with respect to the interest then due on the Outstanding Equipment Notes (excluding Additional Interest), (a) any shortfall in the amount available to pay such interest then due on the Outstanding Equipment Notes (excluding Additional Interest) on such Payment Date shall be allocated pro rata among the Outstanding Series, (b) the amount of such shortfall allocated to each Series shall be the “Net Stated Interest Shortfall” for such Series, and (c) the Net Stated Interest Shortfall for each Series shall be added to the Stated Interest Amount of such Series for the next succeeding Payment Date.
(d)On each Payment Date on which the Available Collections Amount is to be distributed pursuant to the Flow of Funds, before making any distributions pursuant thereto, the Indenture Trustee, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e), shall withdraw from the Liquidity Reserve Account and deposit in the Collections Account the excess, if any, of (A) the sum of the Liquidity Facility Available Amounts for all Liquidity Facilities plus the Balance in the Liquidity Reserve Account (after giving effect to any withdrawals therefrom to be made on such Payment Date pursuant to Section 3.04(c)) over (B) the Liquidity Reserve Target Amount (determined after giving effect to any payments of principal on Equipment Notes to be made on such Payment Date).
(e)Upon repayment in full of all Outstanding Equipment Notes, the Balance in the Liquidity Reserve Account (after giving effect to any withdrawals therefrom on such date pursuant to Section 3.04(c)), shall be deposited into the Collections Account for allocation pursuant to the Flow of Funds.
(f)The Issuer may attempt to procure a reduction in the amount of the Liquidity Reserve Target Amount from time to time, subject to obtaining a Rating Agency Confirmation and receiving the prior written consent of the Indenture Trustee (to be given only at the Direction of the Requisite Majority), following which the Liquidity Reserve Target Amount shall be the amount as so reduced.
Section 3.05Optional Reinvestment Account.
(a)The Issuer may elect (except in case of a Scrap Value Disposition, in which case the relevant Net Disposition Proceeds will be deposited in the Collections Account pursuant to Section 5.03(a)(iv)), by notice to the Indenture Trustee in writing, no later than the end of the Business Day immediately preceding the later of (i) the date of any Permitted Railcar Disposition and (ii) the date on which the relevant Net Disposition Proceeds are received from such Permitted Railcar Disposition, to deposit all or a portion of the Net Disposition Proceeds realized from such Permitted Railcar Disposition (as specified in such notice), whether or not initially deposited in the Collections Account, into the Optional Reinvestment Account. Such notice from the Issuer will include, among other things, the date on which the relevant Replacement Period will conclude. The Indenture Trustee shall deposit in the Collections Account all or any portion of the Net Disposition Proceeds realized from any Permitted Railcar Disposition
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as to which the direction described in the preceding sentence is not received (and for which such amounts have been identified to the Indenture Trustee in writing to be Net Disposition Proceeds) by the end of the last Business Day preceding the later of (x) the date of any such Permitted Railcar Disposition and (y) the date on which such Net Disposition Proceeds are received in connection with such Permitted Railcar Disposition.
(b)The Issuer may elect, at any time during the related Replacement Period, to apply the Net Disposition Proceeds from an Permitted Railcar Disposition deposited into the Optional Reinvestment Account pursuant to Section 3.05(a) in a Permitted Railcar Acquisition. On each Delivery Date during the Replacement Period on which the Issuer acquires an Additional Railcar from a Seller in a Permitted Railcar Acquisition, the Indenture Trustee, at the written direction of the Administrator accompanied by a written statement of the Administrator that all of the conditions for payment of the Purchase Price for such Additional Railcar specified in the applicable Asset Transfer Agreement have been satisfied, and that the requirements of Section 5.03(b) or 5.03(c), as applicable, have been satisfied, will transfer funds in an amount equal to the Purchase Price for such Additional Railcar from the Optional Reinvestment Account to the applicable Seller.
(c)The Issuer may elect to transfer to the Collections Account any Net Disposition Proceeds previously deposited in the Optional Reinvestment Account pursuant to Section 3.05(a) during the Replacement Period. The Indenture Trustee, without further direction from the Administrator, shall transfer any relevant Net Disposition Proceeds on deposit in the Optional Reinvestment Account remaining at the end of the relevant Replacement Period to the Collections Account on the next Business Day after the end of such Replacement Period. All amounts so transferred to the Collections Account may not be withdrawn therefrom except pursuant to Section 3.14.
Section 3.06Expense Account.
(a)On each Closing Date, the Administrator shall direct the Indenture Trustee in writing to (i) pay to such Persons as shall be specified by the Administrator such Issuance Expenses as shall be due and payable in connection with the issuance and sale of the Notes on such Closing Date, and (ii) transfer to the Expense Account the Required Expense Deposit, in each case out of the Net Proceeds of the Notes issued on such Closing Date or the proceeds of a Capital Contribution by the Member to the Issuer or from any combination thereof.
(b)On each Payment Date, the Administrator will, in accordance with the priority of payments set forth in the Flow of Funds, direct the Indenture Trustee, in writing, to pay or reimburse any Operating Expenses that have been actually incurred or that are due and payable on such Payment Date and to transfer to the Expense Account funds in an amount equal to the Required Expense Deposit.
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(c)On any Business Day between Payment Dates, the Administrator may direct the Indenture Trustee, in writing, to withdraw funds from the Expense Account in order to pay or reimburse any Operating Expenses that the Administrator certifies in such writing are Operating Expenses that have been actually incurred or that are then due and payable.
(d)On the last Final Maturity Date for all Series of Notes, after payment of all Operating Expenses due on such Final Maturity Date, the Indenture Trustee shall transfer the Balance in the Expense Account to the Collections Account for distribution in accordance with the Flow of Funds.
Section 3.07Series Accounts.
(a)Upon the issuance of a Series of Notes, the Administrator shall cause to be established and maintained a Series Account for such Series of Notes.
(b)On each Payment Date, amounts will be deposited into each applicable Series Account in accordance with Section 3.08 and Section 3.11.
(c)All amounts transferred to a Series Account for any Series of Notes in accordance with Section 3.08 and Section 3.11 shall be used by the Indenture Trustee for the payment of such Series of Notes (or Class thereof) in accordance with the terms of this Master Indenture and the related Series Supplement.
Section 3.08Redemption/Defeasance Account.
(a)Upon the sending of a Redemption Notice in respect of any Series of the Notes or any Class thereof, or an election by the Issuer to effect a legal defeasance or covenant defeasance of any Series of the Notes or any Class thereof pursuant to Article XII, the Indenture Trustee will establish a Redemption/Defeasance Account to retain the proceeds to be used in order to redeem or defease such Series or Class. If any cash Capital Contribution is made in connection with any Optional Redemption, the Member will notify the Administrator in writing of the amount thereof, and the Administrator will notify the Indenture Trustee in writing within one Business Day after the making of any such Capital Contribution that such Capital Contribution has been made.
(b)Amounts shall be deposited into any Redemption/Defeasance Account in accordance with Section 3.13.
(c)On each Redemption Date, the Administrator shall direct the Indenture Trustee in writing to transfer a portion of the proceeds of any Optional Redemption equal to the Redemption Price of such Series of Notes from the Redemption/Defeasance Account, established in respect of such Optional Redemption in accordance with Section 3.13, to the Series Account for such Series (except that an amount equal to the Hedge Termination Value that is owed by the Issuer, if any, included
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in the Redemption Price concurrently will be directed to be withdrawn from the Redemption/Defeasance Account and paid to the applicable Hedge Provider).
(d)On each Payment Date, in respect of any Series of Notes that is the subject of a legal defeasance or covenant defeasance, the Administrator shall direct the Indenture Trustee in writing to transfer from the Redemption/Defeasance Account to the Series Account for such Series, and from such Series Account to the Noteholders of such Notes the payments of principal and interest due on such Notes.
Section 3.09[Reserved.]
Section 3.10Calculations.
(a)As soon as reasonably practicable after each Determination Date, but in no event later than 12:00 noon (New York City time) on the third Business Day prior to the immediately succeeding Payment Date, the Issuer shall cause the Administrator, based on information known to it or Relevant Information provided to it, to determine the amount of Collections received during the Collection Period ending immediately prior to such Determination Date (including the amount of any investment earnings on the Balances in the Collections Account, if any, as of such Determination Date) and shall calculate the following amounts:
(i)(A) the Balances in each of the Indenture Accounts on such Determination Date, and (B) the amount of investment earnings (net of losses and investment expenses), if any, on investments of funds on deposit therein during such Collection Period;
(ii)(A) the Required Expense Amount for such Payment Date and (B) the excess, if any, of the Required Expense Reserve for such Payment Date over the Balance in the Expense Account after payment of all Operating Expenses on such Payment Date (the amount described in this clause (B), the “Required Expense Deposit”);
(iii)the Available Collections Amount for such Payment Date, net of the amounts described in Section 4.02(c)(i) if an Event of Default has occurred and is continuing on such Payment Date;
(iv)the Stated Interest Shortfall, if any, for each Series, the amounts, if any, required to be transferred from the Liquidity Reserve Account to the Collections Account in respect thereof pursuant to Section 3.04, and the Net Stated Interest Shortfall, if any, for each Series;
(v)all other amounts required to be reported in the Monthly Report and not included on the Payment Date Schedule to be provided pursuant to Section 3.10(e); and
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(vi)any other information, determinations and calculations reasonably required in order to give effect to the terms of this Master Indenture and the Operative Agreements, including the preparation of the Monthly Report and Annual Report;
provided that, if the Administrator has not received all of the Relevant Information for such Payment Date, the Administrator shall make reasonable assumptions for purposes of the calculations contemplated by this Section 3.10.
(b)Calculation of Interest Amounts, etc. Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer shall cause the Administrator or the Servicer to make the following calculations or determinations with respect to interest amounts due for each Series or Class on such Payment Date:
(i)the Stated Interest Amount for the Notes, separated by Series and Class; and
(ii)the Additional Interest Amount, if any, separated by Series and Class.
(c)Calculation of Principal Payments and Distributions to the Issuer. Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer shall cause the Administrator or the Servicer to calculate or determine the following with respect to principal payments on the Notes due on such Payment Date and the amounts distributable to the Issuer on such Payment Date:
(i)the Outstanding Principal Balance of each Series of Notes (and Classes within such Series) on such Payment Date immediately prior to any principal payment on such date;
(ii)the amounts of the principal payments, if any, to be made in respect of each Series of Notes (and Classes within such Series) on such Payment Date, including the Scheduled Principal Payment Amounts for each Series (and Classes within such Series) and any unpaid Scheduled Principal Payment Amounts for each Series (and Classes within such Series) for prior Payment Dates; and
(iii)the amounts, if any, distributable to the Issuer on such Payment Date.
(d)Calculation of Payment Date Shortfalls. Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer shall cause the Administrator or the Servicer to perform the calculations necessary to determine the following:
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(i)the amount, if any, by which the Stated Interest Amounts due in respect of any Series of Equipment Notes on such Payment Date exceed the Available Collections Amount for such Payment Date remaining after payment in full of all amounts senior thereto in the Flow of Funds, but prior to giving effect to any transfer of funds to the Collections Account from the Liquidity Reserve Account or from the Liquidity Facilities pursuant to Section 3.04 (the “Stated Interest Shortfall”);
(ii)the Net Stated Interest Shortfall in respect of each Series;
(iii)the amount, if any, of payments to the Liquidity Facility Providers and the Hedge Providers that are contemplated to be paid pursuant to the Flow of Funds but will not be paid on such Payment Date out of the Available Collections Amount for such Payment Date;
(iv)the amount, if any, of the Scheduled Principal Payment Amount payable on each Series (separated by Class) that will not be paid on such Payment Date out of the Available Collections Amount for such Payment Date; and
(v)if such Payment Date is the Final Maturity Date for any Series of Notes or Class thereof, the amount, if any, by which the Outstanding Principal Balance of such Series of Notes or Class thereof exceeds the Available Collections Amount after payment in full of amounts senior thereto or pari passu therewith in the Flow of Funds (such remainder, a “Final Principal Payment Shortfall”).
(e)Application of the Available Collections Amount. Not later than 1:00 p.m., New York City time, three Business Days prior to each Payment Date, the Issuer will cause the Administrator (after consultation with the Servicer), to prepare and deliver to the Indenture Trustee the Payment Date Schedule setting forth the payments, transfers, deposits and distributions to be made in respect of the Liquidity Reserve Account pursuant to Section 3.04 or in respect of Net Disposition Proceeds pursuant to Section 3.14(a), and in respect of the Available Collections Amount (after giving effect to such payments, transfers, deposits and distributions, if any) pursuant to the Flow of Funds, and setting forth separately, in the case of payments in respect of each Series of Notes, the amount to be applied on such Payment Date to pay all interest, principal, premium and any other distributions, if any, on such Series of Notes (and each Class thereof), all in accordance with Section 3.11. On each Payment Date, the Indenture Trustee, based solely on the Payment Date Schedule provided by the Administrator for such Payment Date, will make payments, transfers, deposits and distributions in an aggregate amount equal to the Available Collections Amount in accordance with the order of priority set forth in the Flow of Funds. If the Indenture Trustee shall not have received such Payment Date Schedule by the last Business Day preceding any Payment Date, such Payment Date shall be deferred until the next Business Day after such Payment Date Schedule is received by the Indenture Trustee.
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(f)Relevant Information. The Issuer shall cause each Service Provider having Relevant Information in its possession to make such Relevant Information available to the Administrator and the Servicer not later than 1:00 p.m., New York City time, at least five Business Days prior to each Payment Date.
Section 3.11Payment Date Distributions from the Collections Account.
(a)Regular Distributions. On each Payment Date, so long as no Event of Default has occurred and is continuing, after the withdrawals and transfers provided for in Section 3.02 and 3.04 have been made, the Available Collections Amount (excluding any Net Disposition Proceeds on deposit in the Collections Account as of the Determination Date, which amounts shall be applied pursuant to clause (c) below after giving effect to the application of all amounts pursuant to this clause (a)) will be applied in the following order of priority:
(1)pro rata, to the payment or reimbursement of the portion of the Required Expense Amount described in clause (i) of the definition thereof to the applicable payees, and to the Expense Account in an amount equal to the Required Expense Deposit;
(2)to the payment to the Service Providers of the Service Provider Fees, plus applicable Taxes (to the extent such Taxes are payable by the Issuer to the Service Providers under the Service Provider Agreements), pro rata based on the amount due;
(3)to the repayment of any outstanding Servicer Advances (together with interest thereon as provided in the Servicing Agreement);
(4)pro rata based on the amount due, (i) to the applicable Series Accounts for the Class A Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class A Equipment Notes of each Series, other than current or past due Additional Interest, (ii) to the Liquidity Facility Providers, all interest owed to the Liquidity Facility Providers in connection with draws under the related Liquidity Facilities for such Liquidity Facility Providers, (iii) to each Hedge Provider, all Senior Hedge Payments and (iv) to the Liquidity Facility Providers, all indemnification obligations payable to the Liquidity Facility Providers in connection with the related Liquidity Facilities; provided that any amounts drawn from the Liquidity Reserve Account or any Liquidity Facility will be applied only to the items described in clauses (i) and (iii) hereof (other
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than payments of any Hedge Termination Value or Hedge Partial Termination Value);
(5)pro rata based on the amount due, to the applicable Series Accounts for the Class B Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class B Equipment Notes of each Series, other than current or past due Additional Interest;
(6)to first, reimburse or repay pro rata each related Liquidity Facility Provider the principal amounts drawn under any Liquidity Facility and not previously reimbursed, and second, deposit in the Liquidity Reserve Account an amount equal to the positive difference (if any) between (x) the Liquidity Reserve Target Amount (after giving effect to the payments in clause first) and (y) the balance in the Liquidity Reserve Account;
(7)to the applicable Series Accounts for the Class A Equipment Notes, the Scheduled Principal Payment Amounts on all Series of Outstanding Class A Equipment Notes entitled thereto, first, to the Outstanding Class A Equipment Notes of the earliest issued Series and then to subsequent Series in chronological order of issuance, and second, within each Series, to each Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class;
(8)to pay or reimburse the Servicer for costs of Optional Modifications made or incurred on behalf of the Issuer (as determined by the Administrator and delivered in writing to the Indenture Trustee) to the extent not paid as Ordinary Course Expenses or from any other available source of revenues of the Issuer (the “Servicer Optional Modification Expense”), up to an aggregate amount with respect to all such payments not to exceed two percent (2.00%) of the Initial Appraised Value of all Portfolio Railcars (such amount, the “Servicer Optional Modification Cap”);
(9)to the applicable Series Accounts for the Class A Equipment Notes, for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class A Equipment Notes, first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class thereof sequentially in ascending numerical
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designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (9);
(10)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class A Equipment Notes, for the payment of an amount equal to the Outstanding Principal Balance of the Class A Equipment Notes (after the payments in clause (7) above), pro rata according to the Outstanding Principal Balance of all Class A Equipment Notes;
(11)to the applicable Series Accounts for the Class B Equipment Notes, the Scheduled Principal Payment Amounts on all Series of Outstanding Class B Equipment Notes entitled thereto, first, to the Outstanding Class B Equipment Notes of the earliest issued Series and then to subsequent Series in chronological order of issuance, and second, within each Series, to each Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class;
(12)to the applicable Series Accounts for the Class B Equipment Notes, for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class B Equipment Notes, first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (12);
(13)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class B Equipment Notes, for the payment of an amount equal to the Outstanding Principal Balance of the Class B Equipment Notes (after the payments in clause (11) above), pro rata according to the Outstanding Principal Balance of all Class B Equipment Notes;
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(14)pro rata based on the amount due, to the applicable Series Accounts for the Class C Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class C Equipment Notes of each Series, other than current or past due Additional Interest;
(15)to the applicable Series Accounts for the Class C Equipment Notes, the Scheduled Principal Payment Amounts on all Series of Outstanding Class C Equipment Notes entitled thereto, first, to the Outstanding Class C Equipment Notes of the earliest issued Series and then to subsequent Series in chronological order of issuance, and second, within each Series, to each Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class;
(16)to the applicable Series Accounts for the Class C Equipment Notes, for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class C Equipment Notes, first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class thereof sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (16);
(17)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class C Equipment Notes, for the payment of an amount equal to the Outstanding Principal Balance of the Class C Equipment Notes (after the payments in clause (15) above), pro rata according to the Outstanding Principal Balance of all Class C Equipment Notes;
(18)to the applicable Series Accounts for the Class A Equipment Notes, the payment of all current and past due Additional Interest due on the Class A Equipment Notes, pro rata based on the amount due;
(19)to the applicable Series Accounts for the Class B Equipment Notes, the payment of all current and past due Additional Interest due on the Class B Equipment Notes, pro rata based on the amount due;
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(20)to the applicable Series Accounts for the Class C Equipment Notes, the payment of all current and past due Additional Interest due on the Class C Equipment Notes, pro rata based on the amount due;
(21)to the applicable Series Accounts for the Class A Equipment Notes, the payment of any Redemption Premium owing to the Noteholders of the Class A Equipment Notes, pro rata based on the amount due;
(22)to the applicable Series Accounts for the Class B Equipment Notes, the payment of any Redemption Premium owing to the Noteholders of the Class B Equipment Notes, pro rata based on the amount due;
(23)to the applicable Series Accounts for the Class C Equipment Notes, the payment of any Redemption Premium owing to the Noteholders of the Class C Equipment Notes, pro rata based on the amount due;
(24)to the Hedge Providers for the payment of Subordinated Hedge Payments, pro rata based on the amount due;
(25)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Noteholders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class (i) first, all current and past due interest on such Series of Subordinated Notes, other than current or past due Additional Interest, pro rata based on the amount due, and (ii) second, if the Subordinated Note Amortization Date has occurred, to the repayment of the Outstanding Principal Amounts of such Series of Subordinated Notes, pro rata based on the amount due;
(26)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Noteholders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class, to the payment of all current and past due Additional Interest due on such Series of Subordinated Notes, pro rata based on the amount due;
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(27)pro rata based on the amount due (i) to the Initial Purchasers of the Initial Notes, for the payment of any indemnities of the Issuer payable to such Initial Purchasers of the Initial Notes, and (ii) to the Initial Purchasers of any Additional Series, for the payment of any indemnities of the Issuer payable to such Initial Purchasers;
(28)pari passu and pro rata (as determined by the Administrator and delivered in writing to the Indenture Trustee) to pay or reimburse the Issuer (or the Servicer on its behalf) for costs of Optional Modifications to the extent not paid pursuant to clause (8) above or from any other available source of revenues of the Issuer;
(29)to pay all other monetary obligations of the Issuer under the Operative Agreements; and
(30)to the Issuer, all remaining amounts, which may be distributed to the Member.
(b)Event of Default Distributions. On each Payment Date, if an Event of Default has occurred and is then continuing, the Available Collections Amount will be applied in the following order of priority, after payment of the amounts described in Section 4.02(c)(i):
(1)pro rata, to the payment or reimbursement of the portion of the Required Expense Amount described in clause (i) of the definition thereof to the applicable payees, and to the Expense Account in an amount equal to the Required Expense Deposit;
(2)to the payment to the Service Providers of the Service Provider Fees, plus applicable Taxes (to the extent such Taxes are payable by the Issuer to the Service Providers under the Service Provider Agreements), pro rata based on the amount due;
(3)to the repayment of any outstanding Servicer Advances (together with interest thereon as provided in the Servicing Agreement);
(4)pro rata based on the amount due, (i) to the applicable Series Accounts for the Class A Equipment Notes on a pro rata basis, all current and past due interest on the Outstanding Class A Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
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(ii) to the Liquidity Facility Providers, all interest owed to Liquidity Facility Providers in connection with draws under the related Liquidity Facilities for the Liquidity Facility Providers, together with all principal amounts drawn under any Liquidity Facility and not previously reimbursed, (iii) to the Hedge Providers, all unpaid Senior Hedge Payments and (iv) to the Liquidity Facility Providers, all indemnification obligations payable to the Liquidity Facility Providers in connection with the related Liquidity Facilities; provided that any amounts drawn from the Liquidity Reserve Account or any Liquidity Facility will be applied only to the items described in clauses (i) and (iii) hereof (other than payments of any Hedge Termination Value or Hedge Partial Termination Value);
(5)pro rata based on the Outstanding Principal Balances of the Outstanding Class A Equipment Notes of each Series, to the applicable Series Accounts for the Class A Equipment Notes, the Outstanding Principal Balances of the Class A Equipment Notes until paid in full;
(6)to pay or reimburse the Servicer for Servicer Optional Modification Expenses, up to an aggregate amount with respect to all such payments not to exceed the Servicer Optional Modification Cap;
(7)pro rata based on the amount due, to the applicable Series Accounts, all current and past due interest on the Outstanding Class B Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
(8)pro rata based on the Outstanding Principal Balances of the Outstanding Class B Equipment Notes of each Series, to the applicable Series Accounts, the Outstanding Principal Balances of the Class B Equipment Notes until paid in full;
(9)to the applicable Series Accounts for the Class A Equipment Notes, the payment of all current and past due Additional Interest due on the Class A Equipment Notes, pro rata based on the amount due;
(10)to the applicable Series Accounts for the Class B Equipment Notes, the payment of all current and past due Additional Interest due on the Class B Equipment Notes, pro rata based on the amount due;
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(11)pro rata based on the amount due, to the applicable Series Accounts, the payment of any Redemption Premium owing to the Noteholders of the Class A Equipment Notes of the applicable Series;
(12)pro rata based on the amount due, to the applicable Series Accounts, the payment of any Redemption Premium owing to the Noteholders of the Class B Equipment Notes of the applicable Series;
(13)to the Hedge Providers, the amount of any Subordinated Hedge Payments, pro rata based on the amount due;
(14)pro rata based on the amount due, to the applicable Series Accounts, all current and past due interest on the Outstanding Class C Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
(15)pro rata based on the Outstanding Principal Balances of the Outstanding Class C Equipment Notes of each Series, to the applicable Series Accounts, the Outstanding Principal Balances of the Class C Equipment Notes until paid in full;
(16)to the applicable Series Accounts for the Class C Equipment Notes, the payment of all current and past due Additional Interest due on the Class C Equipment Notes, pro rata based on the amount due;
(17)pro rata based on the amount due, to the applicable Series Accounts, the payment of any Redemption Premium owing to the Noteholders of the Class C Equipment Notes of the applicable Series;
(18)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Noteholders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class (i) first, all current and past due interest on such Series of Subordinated Notes, other than current or past due Additional Interest, pro rata based on the amount due, and (ii) second, to the repayment of the Outstanding Principal Amounts of such Series of Subordinated Notes, pro rata based on the amount due;
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(19)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Noteholders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class, to the payment of all current and past due Additional Interest due on such Series of Subordinated Notes;
(20)pro rata based on the amount due (A) to the Initial Purchasers of the Initial Notes, for the payment of any indemnities of the Issuer payable to the Initial Purchasers of the Initial Notes, and (B) to the Initial Purchasers of any Additional Series, for the payment of any indemnities of the Issuer payable to such Initial Purchasers;
(21)pari passu and pro rata (as determined by the Administrator and delivered in writing to the Indenture Trustee) to pay or reimburse the Issuer (or the Servicer on its behalf) for costs of Optional Modifications to the extent not paid pursuant to clause (6) above or from any other available source of revenues of the Issuer;
(22)to pay all other monetary obligations of the Issuer under the Operative Agreements; and
(23)to the Issuer, all remaining amounts, which may be distributed to the Member.
(c)Railcar Disposition Distributions. On each Payment Date, so long as no Event of Default has occurred and is continuing, to the extent that Net Disposition Proceeds have been transferred to the Collections Account during the related Collection Period and without limiting in any way the application of the second to last sentence of Section 3.12, the balance in the Collections Account allocable to such Railcar Dispositions will be applied in accordance with the order of priority set forth below:
(1)pro rata based on the amount due, to the payment or reimbursement of the portion of the Required Expense Amount described in clause (i) of the definition thereof to the applicable payees, and to the Expense Account in an amount equal to the Required Expense Deposit;
(2)pro rata (A) to deposit in the Liquidity Reserve Account an amount equal to the positive difference (if any) between (x) the Liquidity Reserve Target Amount and (y) the sum of (i) the balance in the Liquidity Reserve Account and (ii)
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the then aggregate Liquidity Facility Available Amounts; and (B) to the Liquidity Facility Providers, to reimburse or repay pro rata the Liquidity Facility Providers in an amount equal to all principal and other amounts due to the Liquidity Facility Providers;
(3)pro rata based on the amount, due to (i) the applicable Series Accounts for the Class A Equipment Notes, Class B Equipment Notes and Class C Equipment Notes, an amount equal to 105% of the Allocable Note Balances of the Portfolio Railcars relating to the Railcar Disposition from which the Net Disposition Proceeds were obtained (provided that such amounts shall not exceed the Outstanding Principal Balance of such Class A Equipment Notes, Class B Equipment Notes and Class C Equipment Notes), applied sequentially first, to the Class A Equipment Notes of the earliest issued Series and then to subsequent Series of Class A Equipment Notes in chronological order of issuance, and within each Series by ascending numeric order among any numerical sub-classes of the Class A Equipment Notes in the same Series, but pro rata among any alphabetical sub-classes of the same Class until paid in full, second, to the Class B Equipment Notes of the earliest issued Series and then to subsequent Series of Class B Equipment Notes in chronological order of issuance, and within each Series by ascending numeric order among any numerical sub-classes of the Class B Equipment Notes in the same Series but pro rata among any alphabetical sub-classes of the same numerical Class until paid in full, and third, to the Class C Equipment Notes of the earliest issued Series and then to subsequent Series of Class C Equipment Notes in chronological order of issuance, and within each Series by ascending numeric order among any numerical sub-classes of the Class C Equipment Notes in the same Series but pro rata among any alphabetical sub-classes of the same numerical Class until paid in full and (ii) each Hedge Provider, all Senior Hedge Payments due in respect of Hedge Agreements, including any Hedge Partial Termination Value payable by the Issuer in connection with the partial redemption described in subsection (i) above;
(4)to pay or reimburse the Servicer for Servicer Optional Modification Expenses, up to an aggregate amount with respect to all such payments not to exceed the Servicer Optional Modification Cap;
(5)to the applicable Series Accounts for the Class A Equipment Notes, the payment of any Redemption Premium
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relating to the Railcar Disposition owing to the Noteholders of the Class A Equipment Notes, pro rata based on the amount due;
(6)to the applicable Series Accounts for the Class A Equipment Notes for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class A Equipment Notes (after the payments in first clause (3) above), first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (6);
(7)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class A Equipment Notes for the payment of an amount equal to the then Outstanding Principal Balance of the Class A Equipment Notes (after the payments in clauses (3) and (6) above), pro rata according to the Outstanding Principal Balance of the Class A Equipment Notes;
(8)to the applicable Series Accounts for the Class B Equipment Notes, for payment of any Redemption Premium relating to the Railcar Disposition owing to the Noteholders of the Class B Equipment Notes, pro rata based on the amount due;
(9)to the applicable Series Accounts for the Class B Equipment Notes for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class B Equipment Notes (after the payments in first clause (3) above), first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (9);
(10)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the
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Class B Equipment Notes for the payment of an amount equal to the then Outstanding Principal Balance of the Class B Equipment Notes (after the payments in clauses (3) and (9) above), pro rata according to the Outstanding Principal Balance of the Class B Equipment Notes;
(11)to the Hedge Providers, the amount of any Subordinated Hedge Payments, pro rata based on the amount due;
(12)pro rata based on the amount due, to the applicable Series Accounts, all current and past due interest on the Outstanding Class C Equipment Notes of each Series, other than current or past due Additional Interest, until paid in full;
(13)to the applicable Series Accounts for the Class C Equipment Notes, for payment of any Redemption Premium relating to the Railcar Disposition owing to the Noteholders of the Class C Equipment Notes, pro rata based on the amount due;
(14)to the applicable Series Accounts for the Class C Equipment Notes for the payment of the Outstanding Principal Balance of all Rapid Amortization Notes that are Class C Equipment Notes (after the payments in clause (3) above), first, sequentially among each Rapid Amortization Series in chronological order of issuance, and second, within each Rapid Amortization Series, to each Rapid Amortization Class sequentially in ascending numerical designation of each such Class but pro rata among any alphabetical sub-classes of the same numerical Class; provided, however, that if an Early Amortization Event exists, no payments will be made on any Rapid Amortization Series pursuant to this clause (14);
(15)to the applicable Series Accounts for the Class A Equipment Notes, the payment of all current and past due Additional Interest due on the Class A Equipment Notes, pro rata based on the amount due;
(16)to the applicable Series Accounts for the Class B Equipment Notes, the payment of all current and past due Additional Interest due on the Class B Equipment Notes, pro rata based on the amount due;
(17)to the applicable Series Accounts for the Class C Equipment Notes, the payment of all current and past due
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Additional Interest due on the Class C Equipment Notes, pro rata based on the amount due;
(18)if an Early Amortization Event has occurred and is then continuing, to the applicable Series Accounts for the Class C Equipment Notes for the payment of an amount equal to the then Outstanding Principal Balance of the Class C Equipment Notes (after the payments in clauses (3) and (14) above), pro rata according to the Outstanding Principal Balance of the Class C Equipment Notes;
(19)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Noteholders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class (a) first all current and past due interest on such Series of Subordinated Notes, other than current or past due Additional Interest, pro rata based on the amount due, (b) second, an amount equal to 105% of the Allocable Subordinated Note Balance of the Portfolio Railcars relating to the Railcar Disposition from which the Net Disposition Proceeds were obtained (provided that such amounts shall not exceed the Outstanding Principal Balance of such Series of Subordinated Notes) and (c) third, if the Subordinated Note Amortization Date has occurred, to the repayment of the Outstanding Principal Amounts of such Series of Subordinated Notes, pro rata based on the amount due;
(20)to the applicable Series Account for the earliest issued Series of Subordinated Notes, for distribution to the Noteholders of such Series and then to the applicable Series Account for the subsequent Series in chronological order of issuance, and within such Series, to each Class sequentially in ascending numerical designation of each such Class, to the payment of all current and past due Additional Interest due on such Series of Subordinated Notes, pro rata based on the amount due;
(21)pro rata based on the amount due, (A) to the Initial Purchasers of the Initial Notes, for the payment of any indemnities of the Issuer payable to the Initial Purchasers of the Initial Notes, and (B) to the Initial Purchasers of any Additional Series, for the payment of any indemnities of the Issuer payable to such Initial Purchasers;
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(22)pari passu and pro rata (as determined by the Administrator and delivered in writing to the Indenture Trustee) to pay or reimburse the Issuer (or the Servicer on its behalf) for costs of Optional Modifications to the extent not paid pursuant to clause (4) above or from any other available source of revenues of the Issuer;
(23)to pay all other monetary obligations of the Issuer under the Operative Agreements; and
(24)to the Issuer, all remaining amounts, which may be distributed to the Member.
For the avoidance of doubt, if an Event of Default has occurred and is continuing, the Net Disposition Proceeds will be included in the Available Collections Amount and paid pursuant to Section 3.11(b).
(d)Optional Redemption. On any Redemption Date on which any Series of Equipment Notes or Class thereof is to be the subject of an Optional Redemption, the Administrator shall direct the Indenture Trustee in writing to distribute the amounts in the applicable Redemption/Defeasance Account to (x) the Noteholders of such Series or Class, as applicable, as provided in the relevant Redemption Notice and (y) to the extent the Redemption Price includes amounts owed to Hedge Providers, to such Hedge Providers.
(e)Payments by Wire Transfer. All payments to be made pursuant to this Section 3.11 to Persons other than Noteholders shall be made through a wire transfer of funds to the applicable Person. All payments to Noteholders shall be governed by Section 2.05.
Section 3.12Optional Redemptions. If permitted under the related Series Supplement and if no Event of Default then exists, the Issuer will have the option to prepay, in whole or part, the Outstanding Principal Balance of any Class of the applicable Series of Equipment Notes in an Optional Redemption; provided that:
(a)any Optional Redemption in whole of the Class B Equipment Notes within a Series shall be subject to an Optional Redemption in whole of the Class A Equipment Notes within such Series, and any Optional Redemption in whole of the Class C Equipment Notes within a Series shall be subject to an Optional Redemption in whole of the Class A Equipment Notes and Class B Equipment Notes within such Series;
(b)subject to subsection (c) below, (i) an Optional Redemption in part of the Class B Equipment Notes within a Series shall be subject to an Optional Redemption in part of the Class A Equipment Notes within such Series in the same proportion as the Optional Redemption in part of the Class B Equipment Notes, in each
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case, based on the ratio of (x) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series subject to such Optional Redemption to (y) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series and (ii) an Optional Redemption in part of the Class C Equipment Notes within a Series shall be subject to an Optional Redemption in part of the Class A Equipment Notes and Class B Equipment Notes within such Series in the same proportion as the Optional Redemption in part of the Class C Equipment Notes, in each case, based on the ratio of (x) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series subject to such Optional Redemption to (y) the Outstanding Principal Balance of the Equipment Notes in such Class within such Series;
(c)if an Early Amortization Event is then continuing, the Issuer (x) shall not be permitted to prepay any Class C Equipment Notes until the Outstanding Principal Balance of all Class A Equipment Notes and Class B Equipment Notes shall have been paid in full, (y) shall not be permitted to prepay any Class B Equipment Notes until the Outstanding Principal Balance of all Class A Equipment Notes shall have been paid in full and (z) shall not be permitted to prepay any Class A Equipment Notes of any Series until the Outstanding Principal Balance of all Class A Equipment Notes in all earlier issued Series shall have been paid in full; and
(d)if an Event of Default then exists, the Issuer will have the option to prepay, in whole or in part, the Outstanding Principal Balance of all (but not less than all) Series of Equipment Notes then Outstanding. It is understood that Optional Redemptions do not effect a release of Collateral from the Security Interest of this Master Indenture, unless the subject of such Optional Redemption is a Class or Series of Notes and it results in the repayment in full of all Secured Obligations relating to the Class or Series of Notes being redeemed. Any Optional Redemption in part, if (in the case of Equipment Notes) permitted in accordance with the applicable Series Supplement, will be achieved by a pro rata prepayment of the Outstanding Principal Balance of the applicable Notes.
Section 3.13Procedure for Redemptions.
(a)Method of Redemption. In the case of any Optional Redemption, the Issuer will deposit, or will cause to be deposited, in the Redemption/Defeasance Account an amount equal to the Redemption Price of the Notes or portion thereof to be redeemed. Once a Redemption Notice in respect of an Optional Redemption is published, the applicable Outstanding Principal Balance of each Series of Notes (or Class thereof) to which such Redemption Notice applies will become due and payable on the Redemption Date stated in such Redemption Notice at its Redemption Price. In the case of a redemption in whole of a Series, all Notes of such Series that are redeemed will be surrendered to the Indenture Trustee for cancellation and will be cancelled by the Indenture Trustee, and accordingly may not be reissued or resold.
(b)Deposit of Redemption Amount. On or before any Redemption Date in respect of an Optional Redemption under Section 3.12, the Issuer shall, to the
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extent an amount equal to the Redemption Price of the Notes to be redeemed and any transaction expenses as of the Redemption Date is not then held by the Issuer or on deposit in the Redemption/Defeasance Account, deposit or cause to be deposited such amount in the Redemption/Defeasance Account.
(c)Notes Payable on Redemption Date. After notice has been given under Section 3.13(d) as to the Redemption Date in respect of any Optional Redemption, the Outstanding Principal Balance of the Notes to be redeemed on such Redemption Date in the amount identified in such notice shall become due and payable on the Redemption Date at the Redemption Price (net of any portion thereof payable to the applicable Hedge Provider) at the Corporate Trust Office of the Indenture Trustee, and from and after such Redemption Date (unless there shall be a default in the payment of the applicable amount to be redeemed) such principal amount shall cease to bear interest. Upon surrender of any Notes for redemption in accordance with such notice, the Redemption Price of such Notes shall be paid in accordance with Section 3.11(d). If any Notes to be redeemed shall not be so paid, or shall only be paid in part in accordance with the terms of such notice, the remaining Outstanding Principal Balance of such Notes shall continue to bear interest from the Redemption Date until it is paid at the interest rate applicable to such Notes.
(d)Redemption Notice. In respect of any Optional Redemption of any Series or Class of Notes to be made out of amounts available for such purposes, the Indenture Trustee will give a Redemption Notice to each Noteholder of the Notes to be redeemed and to each Hedge Provider and Liquidity Facility Provider, provided that the Indenture Trustee shall have been notified in writing by the Issuer or the Administrator in advance of giving any such Redemption Notice whether funds are or will, on the applicable Redemption Date, be available for such Optional Redemption. Such Redemption Notice must be given at least ten (10) days but not more than sixty (60) days before such Redemption Date. Each Redemption Notice must state (i) the applicable Redemption Date, (ii) the Notes being redeemed (which may be some or all of a Series or Class, as permitted by Section 3.12 and any applicable Series Supplement) and, if applicable, the portion of the Outstanding Principal Balance of such Notes that is to be redeemed (and in respect thereof, the Redemption Price (less an amount equal to any portion thereof payable to the applicable Hedge Provider) will be distributed to the Noteholders of the applicable Notes pro rata in the same manner as partial repayments of principal on the Notes made pursuant to the Flow of Funds and the Indenture Trustee’s notice shall contain information to that effect), (iii) the Indenture Trustee’s arrangements for making payments due on the Redemption Date, (iv) the Redemption Price of the Notes to be redeemed, including a description of the portion thereof, if applicable, that is payable to the applicable Hedge Provider, (v) for an Optional Redemption of an entire Class or Series of Notes or of all Outstanding Notes, that the Notes to be redeemed must be surrendered (which action may be taken by any Noteholder of the Notes or its authorized agent) to the Indenture Trustee to collect the Redemption Price on such Notes (less an amount equal to any portion thereof payable to the applicable Hedge Provider), and (vi) that, unless the Issuer defaults in the
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payment of the Redemption Price, if any, interest on the portion of the Outstanding Principal Balance of the Notes called for redemption will cease to accrue on and after the Redemption Date.
(e)Notice to Hedge Providers and Rating Agencies. If so provided in a Series Supplement, the Issuer shall give each applicable Hedge Provider and each applicable Rating Agency prior written notice of a redemption of all or a portion of the Notes pursuant to Section 3.13 and 3.14.
Section 3.14Adjustments in Targeted Principal Balances.
(a)Railcar Dispositions. If Net Disposition Proceeds have been transferred to the Collections Account, then (i) on the next following Payment Date, such Net Disposition Proceeds shall be applied in accordance with Section 3.11(c), unless an Event of Default has occurred and is continuing, in which case, such Net Disposition Proceeds shall be applied in accordance with Section 3.11(b), and (ii) on such Payment Date, the Scheduled Targeted Principal Balance of the Equipment Notes being partially redeemed on such Payment Date will be reduced to, for all subsequent Payment Dates, an amount equal to the result of (x) the Scheduled Targeted Principal Balances of such Notes for each such Payment Date, minus (y) the product of (A) the Redemption Fraction for such Equipment Notes as of each such Payment Date and (B) the Scheduled Targeted Principal Balance of such Equipment Notes for each such Payment Date. If Net Disposition Proceeds are applied to early repayment of Equipment Notes pursuant to this paragraph, then the Issuer shall also be required to pay, in connection with and on the date of the resulting prepayment, Redemption Premium on such prepaid principal amount if at such time an Optional Redemption of the applicable Equipment Notes would also require the payment of a Redemption Premium (with such Redemption Premium, if owing, to be determined in the same manner); provided, however, that notwithstanding anything herein to the contrary, no Redemption Premium will be due (i) as a result of any Permitted Discretionary Sales which in the aggregate are less than 25% of the sum of (x) the Adjusted Value of the Portfolio Railcars owned by the Issuer on the Initial Closing Date calculated as of the Initial Closing Date and (y) the Adjusted Value of the Portfolio Railcars acquired by the Issuer after the Initial Closing Date (if any) calculated as of the relevant Delivery Date or (ii) as a result of any Involuntary Railcar Dispositions, Scrap Value Dispositions or Purchase Option Dispositions, to the extent provided for in the related Series Supplement.
(b)Optional Redemption. In connection with any Optional Redemption in part, the Scheduled Targeted Principal Balance for the remaining Equipment Notes of such Series or Class shall be reduced on the Redemption Date and each subsequent Payment Date to an amount equal to the result of (x) the Scheduled Targeted Principal Balance of such Notes for each such Payment Date minus (y) the product of (A) the Redemption Fraction and (B) the Scheduled Targeted Principal Balance that existed for the Redemption Date or such subsequent Payment Date, as the case may be, immediately prior to such Optional Redemption. No Optional Redemption in part shall
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occur with respect to a Series or Class unless the Series Supplement for such Series or Class provides for an Optional Redemption in part with respect to such Series or Class, as applicable.
(c)Redemption Fraction. “Redemption Fraction” means, for any Equipment Notes subject to a partial redemption, a fraction, the numerator of which is the principal amount of such Equipment Notes that is being redeemed, and the denominator of which is the Outstanding Principal Balance of such Equipment Notes immediately prior to such partial redemption.
Section 3.15Liquidity Facilities. On the Initial Closing Date, the Issuer shall establish the Initial Liquidity Facility and thereafter, the Issuer may enter, from time to time, into one or more additional Liquidity Facility agreements (each, an “Additional Liquidity Facility”) by entering into transaction documentation (such Additional Liquidity Facility together with the Initial Liquidity Facility, the “Liquidity Facility Documents”) with one or more Additional Liquidity Facility Providers. The following conditions must be satisfied before the Issuer may establish an Additional Liquidity Facility:
(a)the Issuer having obtained Rating Agency Confirmation with respect to all Outstanding Series;
(b)no Servicer Termination Event, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the establishment of the Liquidity Facility, and no Servicer Termination Event, Event of Default or Early Amortization Event would occur as a result of the transactions associated with the establishment of the Additional Liquidity Facility;
(c)the Liquidity Facility Documents related to such Additional Liquidity Facility shall contain provisions (i) addressing the limited recourse nature of the Issuer’s obligation to make payments to the Additional Liquidity Facility Provider, (ii) consistent with the bankruptcy remoteness of the Issuer, (iii) restricting the ability of the Additional Liquidity Facility Provider to assign, transfer or delegate its obligations under such Additional Liquidity Facility, (iv) ensuring that draws on such Additional Liquidity Facility are payable on demand and without the need for a default or event of default to have occurred, (v) setting forth timetables consistent with the Issuer having funds to make timely payments on the Equipment Notes, and (vi) allowing a reasonable period of time for the Issuer to renew or to replace such Additional Liquidity Facility as it nears its stated maturity, and to effect draws under such Additional Liquidity Facility in the event such Additional Liquidity Facility is not timely renewed or replaced, or the Additional Liquidity Facility Provider is downgraded or defaults in its obligations after any applicable grace period; and
(d)the Issuer shall have delivered to the Indenture Trustee, on or prior to the establishment of such Additional Liquidity Facility:
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(i)an original copy of the Liquidity Facility Documents for such Additional Liquidity Facility, duly executed by the Issuer and the Additional Liquidity Facility Provider, as applicable;
(ii)an officer’s certificate, duly executed by a Responsible Officer of the Issuer, meeting the requirements of Section 1.03 and stating that (A) the establishment of such Additional Liquidity Facility and the Liquidity Facility Documents are authorized and permitted by this Master Indenture and (B) all conditions precedent in this Master Indenture to (x) the establishment of such Additional Liquidity Facility and (y) the execution, delivery and performance of the Liquidity Facility Documents have been duly satisfied in accordance with the terms of this Master Indenture; and
(iii)one or more Opinions of Counsel, duly executed by counsel to the Issuer, meeting the requirements of Section 1.03 and containing a statement to the effect that (A) the establishment of such Additional Liquidity Facility and the Liquidity Facility Documents are authorized and permitted by this Master Indenture and (B) that all conditions precedent in this Master Indenture to (x) the establishment of such Liquidity Facility and (y) the execution, delivery and performance of such Liquidity Facility Documents have been duly satisfied in accordance with the terms of this Master Indenture.
Unless otherwise provided in a Series Supplement, each Liquidity Facility will be secured by the lien of this Master Indenture.
Section 3.16Hedge Agreements.
(a)On each Closing Date on which the Issuer is issuing Floating Rate Notes, the Issuer must enter into one or more Hedge Agreements with one or more Eligible Hedge Providers and provide notice thereof to each Rating Agency. Each Hedge Agreement will be secured by the lien of this Master Indenture.
(b)For so long as any Series or Class of Floating Rate Notes remains Outstanding, the Issuer must maintain one or more Hedge Agreements with an aggregate notional balance (x) equal to or exceeding the minimum amount (if any) established in connection with the issuance of such Series or Class (the amount described in this clause (x) with respect to such Series or Class, the “Minimum Hedging Amount”) and (y) less than or equal to the maximum amount (if any) established in connection with the issuance of such Series or Class (the amount described in this clause (y) with respect to such Series or Class, the “Maximum Hedging Amount” and, collectively with the Minimum Hedging Amount, the “Hedging Requirement”) for such Series or Class, as applicable. Notwithstanding any other term or provision of this Master Indenture, but subject to Section 10.05, without the consent of Noteholders, the Issuer and the Indenture Trustee may amend this Master Indenture (including any Series Supplement) from time to time, with the prior written consent of all Hedge Providers and subject to receipt of Rating Agency Confirmation, to stipulate
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different percentages for the Minimum Hedging Amount or the Maximum Hedging Amount for such Series or Class, as applicable.
(c)If the Issuer is not able to meet the Minimum Hedging Amount, with respect to any Series or Class of Floating Rate Notes, it must, within ninety-five (95) days, use reasonable commercial efforts to enter into one or more Hedge Agreements, or, if the reason for such non-compliance is that a Hedge Agreement has terminated in its entirety, but Floating Rate Notes remain Outstanding, enter into one or more replacement Hedge Agreements at least sufficient to meet the Minimum Hedging Amount. If, at the expiration of such ninety-five (95) day period the Issuer has been unable to enter into additional or replacement Hedge Agreements in order to meet the Minimum Hedging Amount, the Requisite Majority (in its sole discretion) may direct the Indenture Trustee in writing on behalf of the Issuer to enter into, maintain or terminate (in whole or in part), one or more Hedge Agreements selected by the Requisite Majority (in its sole discretion) such that, after giving effect to such action, the Issuer will be in compliance with the Hedging Requirement. In the event the Requisite Majority determines to direct the Indenture Trustee to enter into, maintain or terminate (in whole or in part) a Hedge Agreement on the Issuer’s behalf, the Requisite Majority shall promptly send a copy of any such agreement to the Issuer.
(d)If contemplated by a Hedge Agreement, the Issuer may enter into offsetting interest rate transactions in order to comply with the Hedging Requirement.
(e)Except as otherwise provided in this Master Indenture or the applicable Series Supplement, payments by the Issuer to Hedge Providers shall be made to such Hedge Providers on each Payment Date in accordance with the Flow of Funds and payments by Hedge Providers to the Issuer shall be made to the Collections Account.
(f)If a Hedge Provider is the “defaulting party” or “affected party” under a Hedge Agreement (a “Designated Hedge Agreement”) and, as a result, the Issuer is entitled to terminate such Designated Hedge Agreement, then, promptly after the Issuer becomes aware thereof, the Issuer (i) shall notify the Indenture Trustee and each Rating Agency and (ii) shall use commercially reasonable efforts to arrange for another Eligible Hedge Provider (a “Replacement Hedge Provider”) to enter into a replacement Hedge Agreement (a “Replacement Hedge Agreement”) with the Issuer to the extent that the Issuer would be required to enter into a Hedge Agreement under Section 3.16(c) if the Designated Hedge Agreement were not in effect (and subject to the timing, and the rights of the Requisite Majority, specified in Section 3.16(c)); provided that, subject to the terms of the Designated Hedge Agreement, the Issuer shall terminate such Designated Hedge Agreement at or prior to the time the Issuer enters into such Replacement Hedge Agreement. In connection with any termination in whole of a Hedge Agreement if the Issuer is entering, or will enter, into a Replacement Hedge Agreement, the Administrator, on behalf and at the direction of the Issuer, will establish with the Indenture Trustee a securities and cash account (a “Replacement and
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Termination Receipts Account”). The Issuer will deposit (or cause to be deposited) in the Replacement and Termination Receipts Account (x) any Hedge Termination Value paid by the Hedge Provider under the terminating Hedge Agreement to the Issuer, which Hedge Termination Value may be used by the Issuer to make payments required to a Replacement Hedge Provider in connection with a Replacement Hedge Agreement; and (y) any initial payment from a Replacement Hedge Provider that will be used to satisfy any obligation to pay a Hedge Termination Value to the Hedge Provider under the terminating Hedge Agreement. A Replacement and Termination Receipts Account will not be considered to be an Indenture Account for purposes of this Master Indenture and funds standing to its credit will not be considered to be Collateral for purposes of this Master Indenture. All amounts from time to time held in each Replacement and Termination Receipts Account shall be held (a) in the name of the Indenture Trustee, for the benefit of the Issuer, and (b) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture.
(g)If a Hedge Provider is required to post collateral under a Hedge Agreement (“Hedge Collateral”), the Administrator, on behalf and at the direction of the Issuer, will establish with the Indenture Trustee a securities and cash account (a “Hedge Collateral Account”). The Hedge Collateral will be deposited in the Hedge Collateral Account; provided that the Hedge Collateral will not be considered to be Collateral for purposes of this Master Indenture and the Hedge Collateral Account will not be considered to be an Indenture Account for purposes of this Master Indenture. All amounts from time to time held in each Hedge Collateral Account shall be held (a) in the name of the Indenture Trustee, for the benefit of the Issuer, and (b) in the custody and under the “Control” (as such term is defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this Master Indenture. If a Hedge Agreement is terminated and a Hedge Collateral Account has been established with respect to the related Hedge Provider, then either: (x) if a Hedge Termination Value is determined to be payable by the Issuer to such Hedge Provider, then the Issuer shall direct the Indenture Trustee in writing to transfer to such Hedge Provider such Hedge Termination Value and, outside of the Flow of Funds, the relevant Hedge Collateral; or (y) if a Hedge Termination Value is determined to be payable by such Hedge Provider to the Issuer, and (A) if such Hedge Provider pays such Hedge Termination Value to the Issuer when due and payable, then the Issuer shall direct the Indenture Trustee in writing to immediately return the relevant Hedge Collateral to such Hedge Provider outside of the Flow of Funds, and (B) if such Hedge Provider does not pay such Hedge Termination Value to the Issuer when due and payable, then the Issuer shall direct the Indenture Trustee in writing to the extent necessary to liquidate such Hedge Collateral and to transfer such Hedge Collateral or the proceeds thereof to the Collections Account in an amount equal to the lesser of (I) such Hedge Termination Value and (II) the amounts standing to the credit of such Hedge Collateral Account (and such Hedge Provider’s obligation to pay such Hedge Termination Value shall be deemed to have been satisfied to the extent, but only to the extent, that such amounts are so transferred to the Collections Account), and the Issuer shall direct the Indenture Trustee in writing to pay
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any proceeds of such Hedge Collateral in excess of such Hedge Termination Value to such Hedge Provider outside of the Flow of Funds.
Section 3.17Capital Contributions to Indenture Accounts and/or Portfolio. Nothing contained herein shall restrict the Member at any time from making capital contributions to the Issuer from time to time in the form of funds, Portfolio Railcars or other assets (each such contribution, a “Capital Contribution”). The Member may make such a Capital Contribution by depositing funds into the Indenture Accounts on behalf of the Issuer. For the avoidance of doubt, all Capital Contributions made by the Member after the Initial Closing Date shall be made on a voluntary basis and under no circumstances shall the Member be obligated to, or shall any Issuer or Noteholder compel the Member to, make any Capital Contribution to the Issuer. On the first Determination Date after the completion of any Required Modification, if any Capital Contribution was made in connection with such Required Modification, the Administrator will allocate all amounts then remaining on deposit in the Expense Account in respect of such Required Modification to the Member.
ARTICLE IV

DEFAULT AND REMEDIES
Section 4.01Events of Default. Each of the following events shall constitute an “Event of Default” hereunder, and each such 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)failure to pay interest on any Class A Equipment Notes or Class B Equipment Notes then Outstanding (other than Additional Interest, if any, applicable to such Class A Equipment Notes or Class B Equipment Notes), in each case when such amount becomes due and payable, and such default continues for a period of five (5) or more Business Days;
(b)failure to make payment in full in cash of (i) the Outstanding Principal Balance of the Notes of any Series or Class and (ii) accrued and unpaid interest on the Notes of any Series or Class (including, for the avoidance of doubt, interest on overdue interest), in each case, on the respective Final Maturity Date of such Series or Class;
(c)failure to pay any other amount (other than the amounts described in clauses (a) and (b)) in connection with the Notes or any amount (other than the amounts described in clause (b)), to the extent that, on any Payment Date, there are amounts available in the Collections Account or (with respect to the Equipment Notes) the Liquidity Reserve Account and Expense Account therefor, or, with respect to any amounts deposited in the Optional Reinvestment Account, the failure to apply such amounts or to transfer such amounts to the Collections Account, as the case may be, in accordance with Section 3.05, and in any such case such default continues for a period of five (5) or more Business Days after such Payment Date;
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(d)failure by the Issuer or TILC (in the case of TILC, in respect of Operative Agreements to which either is a party other than any Operative Agreement that is described in clause (k), (m) or (n) below) to comply with any of the other covenants, obligations, conditions or provisions binding on it under this Master Indenture, any Series Supplement, any of the Notes or any other Operative Agreement to which it is a party (other than a payment default for which provision is made in clause (a), (b) or (c) of this Section 4.01, or a default addressed in clause (m) or (n) below), if any such failure continues for a period of thirty (30) days or more after written notice thereof has been given to the Issuer (provided that if such failure is capable of remedy and the Administrator has promptly provided the Indenture Trustee with a certificate stating that the Issuer or TILC, as applicable, has commenced, or will promptly commence, and diligently pursue all reasonable efforts to remedy such failure or breach, then such period of time shall be extended so long as the Issuer or TILC, as applicable, is diligently pursuing such remedy but in any event no longer than sixty (60) days after the date such written notice was given to the Issuer);
(e)any representation or warranty made by the Issuer under this Master Indenture and any Series Supplement or any other Operative Agreement to which it is a party or certificate delivered by it shall prove to be untrue or incorrect in any material respect when made, and such untruth or incorrectness, if curable, shall continue unremedied for a period of thirty (30) days or more after written notice thereof has been given to the Issuer (provided that if such untruth or incorrectness is capable of remedy and the Administrator has promptly provided the Indenture Trustee with a certificate stating that the Issuer has commenced, or will promptly commence, and diligently pursue all reasonable efforts to remedy such untruth or incorrectness, then such period of time shall be extended so long as the Issuer is diligently pursuing such remedy but in any event no longer than sixty (60) days after the date such written notice was given to the Issuer);
(f)a court having jurisdiction in respect of the Issuer enters a decree or order for (i) relief in respect of the Issuer under any Applicable Law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar law now or hereafter in effect; (ii) appointment of a receiver, liquidator, examiner, assignee, custodian, trustee, sequestrator or similar official of the Issuer; or (iii) the winding up or liquidation of the affairs of the Issuer and, in each case, such decree or order shall remain unstayed or such writ or other process shall not have been stayed or dismissed within sixty (60) days from entry thereof;
(g)the Issuer (i) commences a voluntary case under any Applicable Law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar law now or hereafter in effect, or consents to the entry of an order for relief in any involuntary case under any such law; (ii) consents to the appointment of or taking possession by a receiver, liquidator, examiner, assignee, custodian, trustee, sequestrator or similar official of the
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Issuer or for all or substantially all of the property and assets of the Issuer; or (iii) effects any general assignment for the benefit of creditors, admits in writing its inability to pay its debts generally as they come due, voluntarily suspends payment of its obligations or becomes insolvent;
(h)a judgment or order for the payment of money in excess of $1,000,000 shall be rendered against the Issuer and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this Section 4.01(h) if and for so long as (x) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer (subject to customary deductible or co-payment) covering payment thereof and (y) such insurer, which shall be rated at least “A-” by A.M. Best Company or any similar successor entity (or a comparable rating by a nationally or internationally recognized rating group of comparable stature), has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order;
(i)the Issuer is required to register as an investment company under the Investment Company Act of 1940, as amended;
(j)the Issuer shall have asserted that this Master Indenture or any of the other Operative Agreements to which it is a party is not valid and binding on the parties thereto or any court, governmental authority or agency having jurisdiction over any of the parties to the Master Indenture or such other Operative Agreement shall find or rule that any material provision of any of such agreements is not valid or binding on the parties thereto;
(k)the Indenture Trustee, acting at the Direction of a Requisite Majority, shall have elected to remove the Servicer as a result of a Servicer Termination Event (or to remove the Administrator in accordance with the provisions of the Administrative Services Agreement providing for such rights of removal), and a replacement Servicer (or Administrator, as the case may be) shall not have assumed the duties of the Servicer (or Administrator, as the case may be) within one hundred eighty (180) days after the date of such election;
(l)written notice is provided by the Indenture Trustee, acting at the Direction of a Requisite Majority, that as of any Payment Date, the Outstanding Principal Balance of the Equipment Notes exceeds the Aggregate Adjusted Borrowing Value as of such date (and giving effect to repayments of principal to occur on such date);
(m)TILC (or any successor thereto in its capacity as Servicer) shall have defaulted in any material respect in the performance of any of its obligations under the Marks Servicing Agreement or a default giving rise to a right to take remedial action shall occur under Section 6(a) of the Account Administration Agreement, and, in each
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case, the Issuer shall have failed to exercise its rights thereunder in respect of such default for a period of thirty (30) days after receipt by the Issuer of written notice from the Indenture Trustee, demanding that such action be taken;
(n)an Insurance Manager Default shall have occurred and be continuing under the Insurance Agreement, and the Issuer shall have failed to exercise its rights under the Insurance Agreement in respect of such Insurance Manager Default for a period of thirty (30) days after receipt by the Issuer of written notice from the Indenture Trustee, demanding that such action be taken; and
(o)the Issuer shall have defaulted in any material respect in the performance of any of its covenants and agreements contained in Section 5.03(a) and such default shall continue unremedied for a period of thirty (30) days.
Section 4.02Remedies Upon Event of Default.
(a)Upon the occurrence of an Event of Default of the type described in Section 4.01(f) or 4.01(g), the Outstanding Principal Balance of, and accrued interest on, all Series of Notes, together with all other amounts then due and owing to the Noteholders, shall become immediately due and payable without further action by any Person. If any other Event of Default occurs and is continuing, then the Indenture Trustee, acting at the Direction of the Requisite Majority, may declare the principal of and accrued interest on all Notes then Outstanding to be due and payable immediately, by written notice to the Issuer, the Servicer, the Hedge Providers, the Liquidity Facility Providers and the Administrator (a “Default Notice”), and upon any such declaration such principal and accrued interest shall become immediately due and payable. At any time after the Indenture Trustee has declared the Outstanding Principal Balance of the Notes to be due and payable and prior to the exercise of any other remedies pursuant to this Master Indenture, the Indenture Trustee (at the Direction of the Requisite Majority), by written notice to the Issuer, the Servicer and the Administrator may, except in the case of (i) a default in the deposit or distribution of any payment required to be made on the Notes, (ii) a payment default on the Notes or (iii) a default in respect of any covenant or provision of this Master Indenture that cannot by the terms hereof be modified or amended without the consent of each Noteholder affected thereby, rescind and annul such declaration and thereby annul its consequences, if (1) there has been paid to or deposited with the Indenture Trustee an amount sufficient to pay all overdue installments of interest on the Notes, and the principal of and premium, if any, on the Notes that would have become due otherwise than by such declaration of acceleration, (2) the rescission would not conflict with any judgment or decree, and (3) all other defaults and Events of Default, other than nonpayment of interest and principal on the Notes that have become due solely because of such acceleration, have been cured or waived.
(b)If an Event of Default shall occur and be continuing, the Indenture Trustee may, and shall, if given a Direction in writing by the Requisite Majority, do any or
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all of the following, provided that the Indenture Trustee shall dispose of the Portfolio Railcars only if it has received a Collateral Liquidation Notice:
(i)Institute any Proceedings, in its own name and as trustee of an express trust, for the collection of all amounts then due and payable on the Notes or under this Master Indenture or the related Series Supplement with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Collateral and any other assets of the Issuer any moneys adjudged due;
(ii)Subject to the quiet enjoyment rights of any Lessee of a Portfolio Railcar, conduct proceedings to sell, hold or lease the Collateral or any portion thereof or rights or interest therein, at one or more public or private transactions conducted in any manner permitted by law; provided that, the Indenture Trustee shall incur no liability as a result of the sale of the Collateral or any part thereof at any sale pursuant to this Section 4.02 conducted in a commercially reasonable manner, and the Issuer hereby waives any claims against the Indenture Trustee arising by reason of the fact that the price at which the Collateral may have been sold at such sale was less than the price that might have been obtained, even if the Indenture Trustee accepts the first offer received and does not offer the Collateral to more than one offeree;
(iii)Institute any Proceedings from time to time for the complete or partial foreclosure of the Encumbrance created by this Master Indenture with respect to the Collateral;
(iv)Institute such other appropriate Proceedings to protect and enforce any other rights, whether for the specific enforcement of any covenant or agreement in this Master Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy;
(v)Exercise any remedies of a secured party under the UCC or any Applicable Law and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee or the Noteholders under this Master Indenture and any Series Supplement;
(vi)Appoint a receiver or a manager over the Issuer or its assets; and
(vii)Exercise its rights under Section 3.03.
(c)If the Notes have been declared due and payable following an Event of Default, any money collected by the Indenture Trustee pursuant to this Master Indenture or otherwise, and any moneys that may then be held or thereafter received by the Indenture Trustee, shall be applied to the extent permitted by law in the following order, at the date or dates fixed by the Indenture Trustee;
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(i)First, to the payment of all costs and expenses of collection incurred by the Indenture Trustee (including the reasonable fees and expenses of any counsel to the Indenture Trustee), and all other amounts due the Indenture Trustee under this Master Indenture and any Series Supplement; and
(ii)Second, as set forth in the applicable provision of the Flow of Funds.
(d)The Indenture Trustee shall provide each Rating Agency with a copy of any Default Notice it receives or delivers pursuant to this Master Indenture. Within thirty (30) days after the occurrence of an Event of Default in respect of any Series of Notes, the Indenture Trustee shall give notice to the Noteholders of each Series of Notes of all uncured or unwaived Defaults actually known to a Responsible Officer of the Indenture Trustee on such date; provided that the Indenture Trustee may withhold such notice with respect to a Default (other than a payment default with respect to interest, principal or premium, if any) if it determines in good faith that withholding such notice is in the interest of the affected Noteholders.
(e)The Issuer hereby agrees that if an Event of Default shall have occurred and is continuing, the Indenture Trustee and any permitted delegee thereof are hereby irrevocably authorized and empowered to act as the attorney-in-fact for the Issuer with respect to the giving of any instructions or notices under this Master Indenture.
(f)If an Event of Default shall have occurred and is continuing, upon the written Direction of the Requisite Majority, the Indenture Trustee shall render an accounting of the current balance of each Indenture Account, and shall direct the Account Collateral Agent to render an accounting of the current balance of the Customer Payment Account.
(g)If an Event of Default shall have occurred and is continuing, and only in such event, upon the written Direction of the Requisite Majority, the Indenture Trustee shall be authorized to take any and all actions and to exercise any and all rights, remedies and options which it may have under this Master Indenture (which rights and remedies shall include the right to direct the withdrawal and disposition of amounts on deposit in the Indenture Accounts and the deposit thereof in the Collections Account, other than amounts on deposit in Series Accounts) and which the Requisite Majority directs it to take in writing under this Master Indenture, including realization and foreclosure on the Collateral.
(h)The Indenture Trustee may after the occurrence of and during the continuance of an Event of Default exercise any and all rights and remedies of the Issuer under or in connection with the Assigned Agreements (including, without limitation, the Servicing Agreement and any successor agreement therefor) and otherwise in respect of the Collateral, including, without limitation, any and all rights of the Issuer to demand or otherwise require payment of any amount under, or
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performance of any provision of, any Assigned Agreement. In addition, after the occurrence of and during the continuance of an Event of Default, upon the Direction of the Requisite Majority, the Indenture Trustee may exercise all rights of the “lessor” under Leases related to Portfolio Railcars, including, without limitation, the right to direct the applicable Lessees to make rental payments to such account as the Indenture Trustee shall specify, for application to the Collections Account and upon a Servicer Default, or a Servicer Replacement Event (as defined in the Servicing Agreement) in respect of which the Servicer has been replaced, and in each case upon the Direction of the Requisite Majority, the Indenture Trustee may exercise the right of the “lessor” to direct the applicable Lessees to make rental payments to such account as the Indenture Trustee shall specify, for application to the Collections Account.
(i)If at any time within such period, the Issuer shall commence a voluntary winding-up or other voluntary case or other proceeding under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction seeking liquidation, reorganization or other relief with respect to the Issuer or the Issuer’s debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official of the Issuer or any substantial part of its property or if the Issuer shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against the Issuer, or making a general assignment for the benefit of any creditor of the Issuer under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction, the Indenture Trustee shall continue to retain such Security Interest until otherwise directed by the Requisite Majority and such Security Interest shall be deemed to have continued to have been held as security for the payment and discharge to the Indenture Trustee of all Secured Obligations.
Section 4.03Limitation on Suits. No Noteholder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Master Indenture or the Notes, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a)such Noteholder holds Notes of the Senior Class and has previously given written notice to the Indenture Trustee of a continuing Event of Default;
(b)the Noteholders of at least 25% of the aggregate Outstanding Principal Balance of the Senior Class give a written Direction to the Indenture Trustee to pursue a remedy hereunder;
(c)such Noteholder or Noteholders offer to the Indenture Trustee an indemnity reasonably satisfactory to the Indenture Trustee against any costs, expenses and liabilities to be incurred in complying with such request;
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(d)the Indenture Trustee does not comply with such request within sixty (60) days after receipt of the request and the offer of indemnity; and
(e)during such sixty (60) day period, a Requisite Majority does not give the Indenture Trustee a Direction inconsistent with such request.
No one or more Noteholders may use this Master Indenture to affect, disturb or prejudice the rights of another Noteholder or to obtain or seek to obtain any preference or priority not otherwise created by this Master Indenture and the terms of the Notes over any other Noteholder or to enforce any right under this Master Indenture and a related Series Supplement, except in the manner herein provided.
Section 4.04Waiver of Existing Defaults.
(a)The Indenture Trustee acting at the Direction of the Requisite Majority shall waive any existing Default or Event of Default hereunder and its consequences, except any waiver in respect of a covenant or provision hereof which, pursuant to Section 9.02(a), cannot be modified or amended without the consent of such Persons as are required to amend such covenant or provision in addition to the consent of the Requisite Majority.
(b)Upon any waiver made in accordance with Section 4.04(a), such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Master Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. Each such notice of waiver shall also be notified to each Rating Agency.
(c)Any written waiver of a Default or an Event of Default given by Noteholders of the Notes to the Indenture Trustee and the Issuer in accordance with the terms of this Master Indenture shall be binding upon the Indenture Trustee and the other parties hereto. Unless such writing expressly provides to the contrary, any waiver so granted shall extend only to the specific event or occurrence which gave rise to the Default or Event of Default so waived and not to any other similar event or occurrence which occurs subsequent to the date of such waiver.
Section 4.05Restoration of Rights and Remedies. If the Indenture Trustee or any Secured Party has instituted any proceeding to enforce any right or remedy that it has, if any, under this Master Indenture and any Series Supplement, and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Indenture Trustee or such Secured Party, then in every such case the Issuer, the Indenture Trustee and each such Secured Party shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and each such Secured Party shall continue as though no such proceeding has been instituted.
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Section 4.06Remedies Cumulative. Each and every right, power and remedy herein given to the Indenture Trustee (or the Control Parties or the Requisite Majority), the Hedge Providers, the Liquidity Facility Providers and the other Secured Parties, if applicable, specifically or otherwise in this Master 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 (or the Control Parties or the Requisite Majority), the Hedge Providers, the Liquidity Facility Providers and the other Secured Parties, if applicable, 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 same time or thereafter any other right, power or remedy. No delay or omission by the Indenture Trustee (or the Control Parties or the Requisite Majority), a Hedge Provider, a Liquidity Facility Provider or any other Secured Party, if applicable, in the exercise of any such right, remedy or power or in the pursuance of any such remedy shall impair any such right, power or remedy or be construed to be a waiver of any Default on the part of the Issuer or to be an acquiescence.
Section 4.07Authority of Courts Not Required. The parties hereto agree that, to the greatest extent permitted by law, the Indenture Trustee shall not be obliged or required to seek or obtain the authority of, or any judgment or order of, the courts of any jurisdiction in order to exercise any of its rights, powers and remedies under this Master Indenture and any Series Supplement, and the parties hereby waive any such requirement to the greatest extent permitted by law.
Section 4.08Rights of Noteholders to Receive Payment. Notwithstanding any other provision of this Master Indenture, the right of any Noteholder to receive payment of interest on, principal of, or premium or any other distribution, if any, on the Notes on or after the respective due dates therefor, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Noteholder.
Section 4.09Indenture Trustee May File Proofs of Claim. The Indenture Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee and of any Noteholder allowed in any judicial proceedings relating to the Issuer, its creditors or its property.
Section 4.10Undertaking for Costs. All parties to this Master Indenture agree, and each Noteholder by its acceptance thereof shall be deemed to have agreed, that in any suit for the enforcement of any right or remedy under this Master Indenture and any Series Supplement or in any suit against the Indenture Trustee for any action taken or omitted by it as Indenture Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees,
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against any party litigant in such suit, having due regard to the merits and good faith of the claims or defense made by the party litigant. This Section 4.10 does not apply to a suit instituted by the Indenture Trustee, a suit instituted by any Noteholder for the enforcement of the payment of interest, principal, premium or any other amounts, if any, on the Notes on or after the respective due dates expressed in such Notes, or a suit by a Noteholder or Noteholders of more than 10% of the Outstanding Principal Balance of any Series of Notes (exclusive of Notes or interests therein held by any Issuer Group Member).
Section 4.11Purchase Right of Class B Noteholders. Each Noteholder of a Class B Equipment Note (other than any Class B Equipment Note held by the Issuer or an Affiliate of the Issuer) will have the right (the “Class B Purchase Right”) on any date occurring on or after the date of the occurrence of an Event of Default that is continuing as of the date of purchase, upon at least twenty (20) days’ written notice to the Indenture Trustee (with a copy to the Issuer), to purchase all, but not less than all, of the Class A Equipment Notes of all Outstanding Series for a purchase price equal to the aggregate Outstanding Principal Balance of all such Class A Equipment Notes, plus accrued and unpaid interest (at the applicable rate of interest for the related sub-class of Class A Equipment Notes) on such Outstanding Principal Balance together with any Additional Interest due and payable to the Noteholders of the Class A Equipment Notes (any such principal and interest in respect of any such sub-class of Class A Equipment Notes and Additional Interest, the “Class B Purchase Right Outstanding Priority Balance”); provided that (i) if prior to the end of such twenty (20) day period any other Noteholder of a Class B Equipment Note (other than any Class B Equipment Note held by the Issuer or an Affiliate of the Issuer) notifies such purchasing Noteholder of a Class B Equipment Note that such other Noteholder of a Class B Equipment Note wants to participate in such purchase, then such other Noteholder of a Class B Equipment Note may join with the purchasing Noteholder of a Class B Equipment Note (any such purchasing Noteholders of a Class B Equipment Note shall be collectively referred to as the “Class B Purchasers”) in exercising the Class B Purchase Right and (ii) if prior to the end of such twenty (20) day period any other Noteholder of a Class B Equipment Note fails to notify the Class B Purchasers of such other Noteholder of a Class B Equipment Note’s desire to participate in such a purchase, then such other Noteholder of a Class B Equipment Note designated shall lose its right to purchase the Class A Equipment Notes of all Outstanding Series. As a condition precedent to such purchase, all interest and principal amounts due and payable to the Liquidity Facility Providers will have been paid in full by such Class B Purchasers and all Liquidity Facilities shall have been terminated or cancelled in full. Upon receipt of any such notice, the Administrator will calculate the then Class B Purchase Right Outstanding Priority Balance. Payment of the Class B Purchase Right Outstanding Priority Balance will in each case be made ratably by each Class B Purchaser based on the ratio of the Outstanding Principal Balance of the Class B Equipment Notes held by such Class B Purchaser to the Outstanding Principal Balance of the Class B Equipment Notes held by all Class B Purchasers. Following all Class B Purchaser’s payment of their portion of the Class B Purchase Right Outstanding Priority Balance, each applicable Class B Purchaser shall
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be the Noteholder of the applicable Class A Equipment Notes and shall be entitled to all rights and interests to which a Noteholder of the Class A Equipment Notes would be entitled.
Section 4.12Purchase Right of Class C Noteholders. Each Noteholder of a Class C Equipment Note (other than any Class C Equipment Note held by the Issuer or an Affiliate of the Issuer) will have the right (the “Class C Purchase Right”) on any date occurring on or after the date of the occurrence of an Event of Default that is continuing as of the date of purchase, upon at least twenty (20) days’ written notice to the Indenture Trustee (with a copy to the Issuer), to purchase all, but not less than all, of the Class A Equipment Notes and the Class B Equipment Notes of all Outstanding Series for a purchase price equal to the aggregate Outstanding Principal Balance of all such Class A Equipment Notes and Class B Equipment Notes, plus accrued and unpaid interest (at the applicable rate of interest for the related sub-class of Class A Equipment Notes and Class B Equipment Notes) on such Outstanding Principal Balance together with any Additional Interest due and payable to the Noteholders of the Class A Equipment Notes and the Class B Equipment Notes (any such principal and interest in respect of any such sub-class of Class A Equipment Notes and Class B Equipment Notes and Additional Interest, the “Class C Purchase Right Outstanding Priority Balance”); provided that (i) if prior to the end of such twenty (20) day period any other Noteholder of a Class C Equipment Note (other than any Class C Equipment Note held by the Issuer or an Affiliate of the Issuer) notifies such purchasing Noteholder of a Class C Equipment Note that such other Noteholder of a Class C Equipment Note wants to participate in such purchase, then such other Noteholder of a Class C Equipment Note may join with the purchasing Noteholder of a Class C Equipment Note (any such purchasing Noteholders of a Class C Equipment Note shall be collectively referred to as the “Class C Purchasers”) in exercising the Class C Purchase Right and (ii) if prior to the end of such twenty (20) day period any other Noteholder of a Class C Equipment Note fails to notify the Class C Purchasers of such other Noteholder of a Class C Equipment Note’s desire to participate in such a purchase, then such other Noteholder of a Class C Equipment Note designated shall lose its right to purchase the Class A Equipment Notes and the Class B Equipment Notes of all Outstanding Series. As a condition precedent to such purchase, all interest and principal amounts due and payable to the Liquidity Facility Providers will have been paid in full by such Class C Purchasers and all Liquidity Facilities shall have been terminated or cancelled in full. Upon receipt of any such notice, the Administrator will calculate the then Class C Purchase Right Outstanding Priority Balance. Payment of the Class C Purchase Right Outstanding Priority Balance will in each case be made ratably by each Class C Purchaser based on the ratio of the Outstanding Principal Balance of the Class C Equipment Notes held by such Class C Purchaser to the Outstanding Principal Balance of the Class C Equipment Notes held by all Class C Purchasers. Following all Class C Purchasers’ payment of their portion of the Class C Purchase Right Outstanding Priority Balance, each applicable Class C Purchaser shall be the Noteholder of the applicable Class A Equipment Notes and Class B Equipment Notes and shall be entitled to all rights and interests to which a Noteholder of the Class A Equipment Notes and the
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Class B Equipment Notes would be entitled. The rights of the Class C Purchasers pursuant to this Section 4.12 shall continue regardless of whether any Noteholder of Class B Equipment Notes previously exercised the Class B Purchase Right pursuant to Section 4.11.
ARTICLE V

REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.01Representations and Warranties. The Issuer represents and warrants to the Indenture Trustee as of each Closing Date, and each Delivery Date, as follows:
(a)Due Organization.
(i)The Issuer is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, is duly licensed or qualified and in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its ability to carry on its business as now conducted or to enter into and perform its obligations under the Issuer Documents and the Operative Agreements to which the Issuer is a party, has the organizational power and authority to carry on its business as now conducted, has the requisite organizational power and authority to execute, deliver and perform its obligations under the Issuer Documents and the Operative Agreements to which the Issuer is a party.
(ii)Each of the LLC Agreement and each other organizational document of the Issuer has been duly executed and delivered by each party thereto and constitutes a legal, valid and binding obligation of each such party enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity.
(iii)Since the date of formation of the Issuer, the Issuer has not conducted business under any other name and does not have any trade names, or “doing business under” or “doing business as” names. The Issuer has not reorganized in any jurisdiction (whether the United States, any state therein, the District of Columbia, Puerto Rico, Guam or any possession or territory of the United States, or any foreign country or state) other than the State of Delaware.
(b)Special Purpose Status. The Issuer has not engaged in any activities since its organization (other than those incidental to its organization and other appropriate limited liability company steps and arrangements for the payment of fees to, and director’s and officer’s insurance for, its member, special member and manager),
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the execution of the Issuer Documents and the Operative Agreements to which it is a party and the activities referred to in or contemplated by such agreements.
(c)Non-Contravention. The Issuer’s acquisition of Railcars pursuant to an Asset Transfer Agreement, the other transactions contemplated by each Asset Transfer Agreement, the creation of the Notes and the issuance, execution and delivery of, and the compliance by the Issuer with the terms of each of the Operative Agreements and the Notes:
(i)do not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, the constitutional documents of the Issuer or with any existing law, rule or regulation applying to or affecting the Issuer or any judgment, order or decree of any government, governmental body or court having jurisdiction over Issuer;
(ii)do not infringe the terms of, or constitute a default under, any deed, indenture, agreement or other instrument or obligation to which the Issuer is a party or by it or its assets, property or revenues are bound; and
(iii)do not constitute a default by the Issuer under, or result in the creation of any Encumbrance (except for Permitted Encumbrances of the type described in clause (i), (ii) or (v) of the definition thereof) upon the property of the Issuer under its organizational documents or any indenture, mortgage, contract or other agreement or instrument to which the Issuer is a party or by which the Issuer or any of its properties may be bound or affected.
(d)Due Authorization. The Issuer’s acquisition of Railcars pursuant to an Asset Transfer Agreement, the other transactions contemplated by each Asset Transfer Agreement, the creation, execution and issuance of the Notes, the execution and issue or delivery by the Issuer of the Operative Agreements executed by it and the performance by it of its obligations hereunder and thereunder and the arrangements contemplated hereby and thereby to be performed by it have been duly authorized by all necessary limited liability company action of the Issuer.
(e)Validity and Enforceability. This Master Indenture constitutes, and the Operative Agreements, when executed and delivered and, in the case of the Notes, when issued and authenticated, will constitute valid, legally binding and (subject to general equitable principles, insolvency, liquidation, reorganization and other laws of general application relating to creditors’ rights or claims or to laws of prescription or the concepts of materiality, reasonableness, good faith and fair dealing) enforceable obligations of the Issuer.
(f)No Event of Default or Early Amortization Event. No Event of Default or Early Amortization Event has occurred and is continuing and no event has occurred that with the passage of time or notice or both would become an Event of Default or Early Amortization Event.
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(g)No Encumbrances. Subject to the Security Interests created in favor of the Indenture Trustee and the Flow of Funds, and except for Permitted Encumbrances, there exists no Encumbrance over the assets of the Issuer that ranks prior to or pari passu with the obligation to make payments on the Notes.
(h)No Consents. No consent, approval or authorization of, or filing, registration or qualification with, or the giving of notice to, any trustee or any holder of indebtedness of the Issuer or any governmental authority on the part of the Issuer is required in the United States, Canada or Mexico (subject to the proviso set forth below) in connection with the execution and delivery by the Issuer of the Operative Agreements to which the Issuer is a party or in order for the Issuer to perform its obligations thereunder in accordance with the terms thereof, other than: (i) notices required to be filed with the STB and the Registrar General of Canada, which notices shall have been filed on the applicable Closing Date, (ii) as may be required under existing laws, ordinances, governmental rules and regulations to be obtained, given, accomplished or renewed at any time after the applicable Closing Date in connection with the operation and maintenance of the Portfolio Railcars and in accordance with the Operative Agreements that are routine in nature and are not normally applied for prior to the time they are required, and which the Issuer has no reason to believe will not be timely obtained, (iii) as may be required under the Operative Agreements in consequence of any transfer of ownership of the Portfolio Railcars and (iv) filing and recording to perfect the Security Interests under this Master Indenture and any Series Supplement as required hereunder; provided, that the parties hereto agree that the Issuer shall not be required to make any such filings or recordings in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada.
(i)No Litigation. There is no claim, action, suit, investigation or proceeding pending against, or to the knowledge of the Issuer, threatened against or affecting the Issuer, before any court or arbitrator or any governmental body, agency or official which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated by this Master Indenture (including the Exhibits and Schedules attached hereto) and/or the Operative Agreements.
(j)Employees, Subsidiaries. The Issuer has no employees. The Issuer has no Subsidiaries.
(k)Ownership. The Issuer is the owner of the Collateral free from all Encumbrances and claims whatsoever other than Permitted Encumbrances.
(l)No Filings. Under the laws of Delaware, Texas and New York (and including U.S. federal law) in force at the date hereof, it is not necessary or desirable that this Master Indenture or any Operative Agreement to which the Issuer is a party be filed, recorded or enrolled with any court or other authority in any such jurisdictions or that any material stamp, registration or similar tax be paid on or in relation to this Master Indenture or any of the other Operative Agreements (other than filings of UCC financing
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statements and with the STB and in Canada in respect of the Security Interests in the Portfolio Railcars).
(m)Other Representations. The representations and warranties made by the Issuer in any of the other Operative Agreements are true and accurate as of the date made.
(n)Other Regulations. The Issuer is not an “investment company,” or an “affiliated person” of, or a “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(o)Insurance. The Portfolio Railcars described on each Delivery Schedule delivered from time to time under an Asset Transfer Agreement are, at the time of the related Conveyance to the Issuer, covered by the insurance required by Section 5.04(f), and all premiums due prior to the applicable Delivery Date in respect of such insurance shall have been paid in full and such insurance as of the applicable Delivery Date is in full force and effect.
(p)No Event of Default or Total Loss. At the time of each Conveyance of Railcars under an Asset Transfer Agreement, (i) no Event of Default has occurred and is continuing, (ii) no Servicer Default (in the case of Conveyances other than on a Closing Date) or Servicer Termination Event (in the case of Conveyances on a Closing Date) has occurred and is continuing, (iii) to the knowledge of the Issuer, no Total Loss or event that, with the giving of notice, the passage of time or both, would constitute a Total Loss with respect to any of the Railcars so Conveyed, has occurred, and (iv) to the knowledge of the Issuer, no Railcar being Conveyed under an Asset Transfer Agreement on such date has suffered damage or contamination which, in the Issuer’s reasonable judgment, makes repair uneconomic or renders such Railcar unfit for commercial use.
(q)Beneficial Title. On each Delivery Date upon which a Conveyance occurs under an Asset Transfer Agreement, (i) the applicable Seller has, and shall pursuant to its related Bill of Sale have, conveyed all legal and beneficial title of the Issuer to such Railcars being so Conveyed free and clear of all Encumbrances (other than Permitted Encumbrances) and such Conveyance will not be void or voidable under any applicable law and (ii) the applicable Seller has assigned, and the Assignment and Assumption to be delivered on the related Delivery Date shall upon acceptance thereof by the Issuer assign, to the Issuer, all legal and beneficial title of such Seller to the related Leases, free and clear of all Encumbrances (other than Permitted Encumbrances), and the Assignment and Assumption will not be void or voidable under any applicable law.
(r)Nature of Business. The Issuer is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Notes will be used by the Issuer for a purpose which violates, or would
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be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System (terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, being used in this Section 5.01(r) with such meanings).
(s)No Default under Organizational Documents. The Issuer is not in violation of any term of any of its organizational documents or in violation or breach of or in default under any other agreement, contract or instrument to which it is a party or by which it or any of its property may be bound.
(t)Issuer Compliance. The Issuer is in compliance in all material respects with all laws, ordinances, governmental rules, regulations, orders, judgments, decrees, determinations and awards to which it is subject, and the Issuer has obtained all required licenses, permits, franchises and other governmental authorizations material to the conduct of its business.
(u)Railcar Compliance; Autoracks. Each Railcar Conveyed on a Delivery Date, taken as a whole, and each major component thereof complies in all material respects with all applicable laws and regulations, all requirements of the manufacturer for maintaining in full force and effect any applicable warranties and the requirements, if any, of any applicable insurance policies, conforms with the specifications for such Railcar contained in the related Appraisal (to the extent a copy of such Appraisal or a relevant excerpt therefrom has been delivered to the Issuer) and is substantially complete such that it is ready and available to operate in commercial service and otherwise perform the function for which it was designed; and the railcar identification marks shown on the related Bill of Sale are the marks then used on the Portfolio Railcars set forth on such Bill of Sale. Each Portfolio Railcar that is an autorack qualifies for the National Reload Pool.
(v)Taxes. On each Delivery Date upon which a Conveyance occurs under an Asset Transfer Agreement, all sales, use or transfer taxes, if any, due and payable upon the purchase of the Portfolio Railcars by the Issuer from the applicable Seller will have been paid or such transactions will then be exempt from any such taxes, and the Issuer will cause any required forms or reports in connection with such taxes to be filed in accordance with applicable laws and regulations.
(w)Lease Terms. Except where a Railcar is being conveyed on a Closing Date and the related Series Supplement references this Section 5.01(w) and permits an exception hereto, each Railcar Conveyed on the relevant Delivery Date is subject to a Permitted Lease, which Lease (together with the other Leases that are or have been the subject of such Conveyances) contains rental and other terms which are no different, taken as a whole, from those for similar railcars in the Servicer’s Fleet.
(x)Eligibility. Each Railcar described on its relevant Delivery Schedule constitutes an Eligible Railcar as of the date of its Conveyance to the Issuer.
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(y)Assignment of Leases. (i) Each Lease conveyed on the relevant Delivery Date is freely assignable from the applicable Seller to the Issuer and from the Issuer to any other Person (including, without limitation, any transferee in connection with the Indenture Trustee’s exercise of rights or remedies under this Master Indenture and any Series Supplement) or, if any such Lease is not freely assignable, then consents to such assignments determined by the Servicer in good faith to be sufficient for their intended purposes have been obtained prior to the relevant Delivery Date, (ii) no assignment described in this Section 5.01(y) is void or voidable or will result in a claim for damages or reduction in rental or other payments, in each case pursuant to the terms and conditions of any such Lease and (iii) no consent, approval or filing is required under such Lease in connection with the execution and delivery of the Operative Agreements.
(z)Purchase Options. With respect to any Portfolio Railcars that are subject to a purchase option granted to the Lessee under the relevant Lease, such purchase option is exercisable by the applicable Lessee for a purchase price not less than (at the time of such purchase) the greater of (1) an appraiser’s estimate at Lease inception of fair market value at the time of potential exercise under the option provision, and (2) (A) one hundred five percent (105%) of the product of the Allocable Note Balance of the Portfolio Railcars subject to such purchase option, plus (B) one hundred five percent (105%) of the product of the Allocable Subordinated Note Balance of the Portfolio Railcars subject to such purchase option, plus (C) any Hedge Partial Termination Value that would be owed by the Issuer to Hedge Providers, if applicable, plus (D) an amount equal to any Redemption Premium that would be payable on the Equipment Notes if on the date such purchase option is exercised, an Optional Redemption of the applicable Equipment Notes would require the payment of a Redemption Premium (with such amount, if any, to be determined in the same manner as the Redemption Premium related to an Optional Redemption). Any such purchase option complying with each of the foregoing limitations referred to herein and in the other Operative Agreements as a “Permitted Purchase Option.”
(aa)No Other Financing of Lease; Permitted Lease. After giving effect to the transfers contemplated under the Operative Agreements, (i) the Leases being Conveyed to the Issuer on any applicable Delivery Date (as evidenced by the Riders or Schedules with respect thereto) are not subject to and do not cover railcars financed in, any financing or securitization transaction other than to the extent constituting a Permitted Encumbrance and other than the transactions contemplated by the Operative Agreements and (ii) such Leases conform to the definition of Permitted Lease (provided that up to 5% of the aggregate number of Portfolio Railcars may be subject to a Lease other than a Permitted Lease).
(bb)Concentration Limits. After giving effect to the Issuer’s acquisition of Railcars in connection with issuing a Series of Equipment Notes on the applicable Closing Date, the Portfolio complies with all Concentration Limits.
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(cc)Tax Status. As of the Initial Closing Date, the Issuer: (i) is classified as a disregarded entity for United States federal income tax purposes, and (ii) is not required to withhold on any distributions or allocations to its equity holders, as determined for U.S. federal income tax purposes, under Sections 1441, 1442, 1445, 1446, 1471 or 1472 of the Code.
Section 5.02General Covenants. The Issuer covenants with the Indenture Trustee as follows:
(a)No Release of Obligations. The Issuer will not take any action which would amend, terminate (other than any termination in connection with the replacement of such agreement on terms substantially no less favorable to the Issuer than the agreement being terminated) or discharge or prejudice the validity or effectiveness of this Master Indenture (other than as permitted herein) or any other Operative Agreement or permit any party to any such document to be released from such obligations, except that, in each case, as permitted or contemplated by the terms of such documents, and provided that, in any case, (i) the Issuer will not take any action which would result in any amendment or modification to any conflicts standard or duty of care in such agreements and (ii) there must be at all times an Administrator and a Servicer with respect to all Portfolio Railcars.
(b)Encumbrances. The Issuer will not create, incur, assume or suffer to exist any Encumbrance on the Collateral other than: (i) any Permitted Encumbrance, and (ii) any other Encumbrance the validity or applicability of which is being contested in good faith in appropriate proceedings by any Issuer Group Member (and the proceedings related to such Encumbrance or the continued existence of such Encumbrance does not give rise to any reasonable likelihood of the sale, forfeiture or loss of the asset affected by such Encumbrance) and for which the Issuer maintains adequate cash reserves to pay such Encumbrance.
(c)Indebtedness. The Issuer will not incur, create, issue, assume, guarantee or otherwise become liable for or with respect to, or become responsible for the payment of, contingently or otherwise, whether present or future, Indebtedness, other than Indebtedness in respect of the Notes issued in accordance with the terms of this Master Indenture and Indebtedness under any Liquidity Facilities, any Hedge Agreement and the other Operative Agreements.
(d)Restricted Payments. The Issuer will not (i) declare or pay any dividend or make any distribution on its Stock; (ii) purchase, redeem, retire or otherwise acquire for value any membership interest in the Issuer held by or on behalf of Persons other than any Permitted Holder; (iii) make any interest, principal or premium, if any, payment on the Notes or make any voluntary or optional repurchase, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer other than in accordance with the Notes and this Master Indenture or the Operative Agreements; provided that the Issuer may repurchase, defease or otherwise acquire or retire any of the Notes from a source other than from Collections (other than that portion of
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Collections that would otherwise be distributable to the Issuer in accordance with the Flow of Funds); or (iv) make any investments, other than Permitted Investments and investments permitted under Section 5.02(f).
The term “investment” for purposes of the above restriction shall mean any loan or advance to a Person, any purchase or other acquisition of any Stock or Indebtedness of such Person, any capital contribution to such Person or any other investment in such Person.
(e)Limitation on Dividends and Other Payments. The Issuer will not create or otherwise suffer to exist any consensual limitation or restriction of any kind on the ability of the Issuer to declare or pay dividends or make any other distributions permitted by Applicable Law, other than pursuant to the Operative Agreements.
(f)Business Activities. The Issuer will not engage in any business or activity other than:
(i)purchasing or otherwise acquiring (subject to the limitations on acquisitions of Portfolio Railcars described below), owning, holding, converting, maintaining, modifying, managing, operating, leasing, re-leasing and (subject to the limitations on sales of Portfolio Railcars described below) selling or otherwise disposing of its Portfolio Railcars and entering into all contracts and engaging in all related activities incidental thereto, including from time to time accepting, exchanging, holding promissory notes, contingent payment obligations or equity interests of Lessees or their Affiliates issued in connection with the bankruptcy, reorganization or other similar process, or in settlement of delinquent obligations or obligations anticipated to be delinquent of such Lessees or their respective Affiliates in the ordinary course of business;
(ii)financing or refinancing the business activities described in clause (i) of this Section 5.02(f) through the offer, sale and issuance of one or more Series of Notes, upon such terms and conditions as the Issuer sees fit, subject to the limitations of this Master Indenture;
(iii)purchasing, acquiring, surrendering and assigning policies of insurance and assurances with any insurance company or companies which the Issuer or the Insurance Manager determines to be necessary or appropriate to comply with this Master Indenture or the Insurance Agreement and to pay the premiums or the Issuer’s allocable portion thereon;
(iv)entering into Liquidity Facilities;
(v)engaging in currency and interest rate exchange transactions for the purposes of avoiding, reducing, minimizing, hedging against or otherwise managing the risk of any loss, cost, expense or liability arising, or which may arise, directly or indirectly, from any change or changes in any interest
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rate or currency exchange rate or in the price or value of the property or assets of the Issuer, upon such terms and conditions as the Issuer sees fit and within any limits and with any provisos specified in this Master Indenture or a Series Supplement, including but not limited to dealings, whether involving purchases, sales or otherwise, in foreign currency, spot and forward interest rate exchange contracts, forward interest rate agreements, caps, floors and collars, futures, options, swaps and any other currency, interest rate and other similar hedging arrangements and such other instruments as are similar to, or derivatives of, any of the foregoing, but in any event not for speculative purposes; and
(vi)taking any action that is incidental to, or necessary to effect, any of the actions or activities set forth above.
(g)Limitation on Consolidation, Merger and Transfer of Assets. The Issuer will not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of its property and assets (as an entirety or substantially an entirety in one transaction or in a series of related transactions) to, any other Person, or permit any other Person to merge with or into the Issuer (any such consolidation, merger, sale, conveyance, transfer, lease or other disposition, a “Merger Transaction”), unless:
(i)the resulting entity is a special purpose entity, the charter of which is substantially similar to the LLC Agreement, and, after such Merger Transaction, payments from such resulting entity to the Noteholders do not give rise to any withholding tax payments less favorable to the Noteholders than the amount of any withholding tax payments which would have been required had such Merger Transaction not occurred and such entity is not subject to taxation as a corporation or an association or a publicly traded partnership taxable as a corporation;
(ii)(A) such Merger Transaction has been unanimously approved by the board of managers of the Issuer and (B) the surviving successor or transferee entity shall expressly assume all of the obligations of the Issuer in and under this Master Indenture and any Series Supplement, the Notes and each other Operative Agreement to which the Issuer is then a party (with the result that, in the case of a transfer only, the Issuer thereupon will be released);
(iii)both before, and immediately after giving effect to such Merger Transaction, no violation of a Concentration Limit, Event of Default or Early Amortization Event shall have occurred and be continuing;
(iv)each of (A) a Rating Agency Confirmation and (B) the consent of the Indenture Trustee (acting at the Direction of a Requisite Majority) has been obtained with respect to such Merger Transaction;
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(v)for U.S. Federal income tax purposes, such Merger Transaction does not result in the recognition of gain or loss by any Noteholder; and
(vi)the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that such Merger Transaction complies with the above criteria and, if applicable, Section 5.03(a) and that all conditions precedent provided for herein relating to such transaction have been complied with.
(h)Limitation on Transactions with Affiliates. The Issuer will not, directly or indirectly, enter into, renew or extend any transaction (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with any Affiliate of the Issuer, except upon fair and reasonable terms no less favorable to the Issuer than could be obtained, at the time of such transaction or at the time of the execution of the agreement providing therefor, in a comparable arm’s-length transaction with a Person that is not such an Affiliate, provided, that the foregoing restriction does not limit or apply to the following:
(i)any transaction in connection with the establishment of the Issuer, its initial capitalization and the acquisition of its initial Portfolio or pursuant to the terms of the Operative Agreements;
(ii)the payment of reasonable and customary regular fees to, and the provision of reasonable and customary liability insurance in respect of, the managers/members of the Issuer;
(iii)any payments on or with respect to the Notes or otherwise in accordance with the Flow of Funds;
(iv)any acquisition of Additional Railcars or any Permitted Railcar Acquisition or Permitted Railcar Disposition complying with Section 5.03;
(v)any payments of the types referred to in clause (i) or (ii) of Section 5.02(d) and not prohibited thereunder;
(vi)the sale of Portfolio Railcars as part of a single transaction providing for the redemption or defeasance of Notes in accordance with the terms of this Master Indenture;
(vii)the sale of the Subordinated Notes to the Member; or
(viii)the payment of fees and expenses to TILC as contemplated by any applicable Service Provider Agreement.
(i)Limitation on the Issuance, Delivery and Sale of Equity Interests. Except as expressly permitted by its LLC Agreement, the Issuer will not (1) issue,
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deliver or sell any Stock or (2) sell, directly or indirectly, or issue, deliver or sell, any Stock, except for the following:
(A)issuances or sales of any additional membership interests to the Member (the “Permitted Holder”); or
(B)contributions, including Capital Contributions, by the Permitted Holder of funds to the Issuer (x) with which to effect a redemption or discharge of the Notes upon any acceleration of the Notes or (y) as otherwise contemplated by this Master Indenture, an Asset Transfer Agreement or the LLC Agreement.
In accordance with the LLC Agreement, no issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer (or other interest in the Issuer treated as equity for U.S. federal income tax purposes) will be effective, and any such issuance, delivery, sale transfer or other disposition will be void ab initio, if it would result in the Issuer being classified as an association (or a publicly traded partnership) taxable as a corporation for U.S. federal income tax purposes or if the Issuer would be required to withhold on any distributions or allocations to its equity holders under Sections 871, 881, 1441, 1442, 1445, 1446, 1471 or 1472 of the Code. In addition, any such issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer, other than to a Permitted Holder, will require Rating Agency Confirmation.
(j)Bankruptcy and Insolvency.
(i)The Issuer will promptly provide the Indenture Trustee and each Rating Agency with written notice of the institution of any proceeding by or against the Issuer seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for all or for any substantial part of its property. The Issuer will not, without obtaining the prior written consent of the Requisite Majority (such consent not to be unreasonably withheld) as well as Rating Agency Confirmation, take any action to waive, repeal, amend, vary, supplement or otherwise modify the provision of its LLC Agreement which requires action or consent of its special member or limits actions of the Issuer with respect to voluntary insolvency proceedings or involuntary insolvency proceedings of the Issuer.
(ii)The Issuer shall cause each party to any Operative Agreement, and each party to any other agreement to which the Issuer is a party that is incidental or related to any Operative Agreement, that in either such case renders the Issuer a debtor to such party, to covenant and agree that it shall not, prior to the date which is one year and one day (or if longer, the applicable preference period then in effect) after the payment in full of the Notes, acquiesce,
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petition or otherwise, directly or indirectly, invoke or cause the Issuer to invoke the process of any governmental authority for the purpose of commencing or sustaining a case against the Issuer under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of its property or ordering the winding up or liquidation of the affairs of the Issuer. This provision shall survive the termination of this Master Indenture.
(k)Payment of Principal, Premium, if any, and Interest. The Issuer will duly and punctually pay the principal, premium, if any, and interest on the Notes in accordance with the terms of this Master Indenture, the applicable Series Supplements and the Notes.
(l)Limitation on Employees. The Issuer will not employ or maintain any employees other than as required by any provisions of local law. Managers, officers and directors of the Issuer shall not be deemed to be employees for purposes of this Section 5.02(l).
(m)Delivery of Rule 144A Information. To permit compliance with Rule 144A in connection with offers and sales of Equipment Notes, the Issuer will promptly furnish upon request of a Noteholder of an Equipment Note to such Noteholder and a prospective purchaser designated by such Noteholder, the information required to be delivered under Rule 144A(d)(4) if at the time of such request the Issuer is not a reporting company under Section 13 or Section 15(d) of the Exchange Act.
(n)Administrator. If at any time there is not a Person acting as Administrator, the Issuer shall promptly appoint a qualified Person to perform any duties under this Master Indenture and any Series Supplement that the Administrator is obligated to perform until a replacement Administrator assumes the duties of the Administrator.
(o)Ratings of Notes. For so long as any Notes are Outstanding, the Issuer shall pay all fees of the applicable Rating Agency and shall respond to reasonable requests for information from the applicable Rating Agency from time to time in order to permit the applicable Rating Agency to maintain a rating with respect to the applicable Series of Notes or Class thereof.
(p)Tax Covenants of the Issuer. The Issuer (i) shall not elect or agree to elect to be classified as an association taxable as a corporation for United States federal income tax or any State income or franchise tax purposes and (ii) shall maintain classification as a disregarded entity or partnership (other than a publicly traded partnership taxable as a corporation) whose sole member(s) are “United States persons” within the meaning of Section 7701(a)(30) of the Code for such purposes. In the event the Issuer is classified as a partnership for United States federal income tax purposes, for any taxable years for which Section 6221 through 6241 of the Code apply to the Issuer, then the Issuer shall timely make, to the extent legally eligible to do so, an
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election under Section 6221(b) or Section 6226(a) of the Code (or any similar election available pursuant to Treasury Regulations under Section 6221 through 6241 of the Code at such time) with respect to determinations of adjustments at the partnership level.
(q)Separate Entity Characteristics. The Issuer shall at all times:
(i)not commingle its assets with those of any Person, including any Affiliate, except with respect to the Marks and the Customer Payment Account and as may occur from time to time due to misdirected payments;
(ii)conduct its business separate from any direct or ultimate parent of the Issuer;
(iii)maintain financial statements susceptible to audit, separate from those of any other Person showing its assets and liabilities separate and apart from those of any other Person (it being acknowledged however that nothing herein restricts TILC, Trinity or any of their Affiliates from consolidating the Issuer into any consolidated financial statements they prepare; provided that the Issuer is shown as a separate legal entity);
(iv)pay its own expenses and liabilities and pay the salaries of its own employees, if any, only from its own funds;
(v)maintain an “arm’s-length relationship” with its Affiliates, except as permitted by the Operative Agreements;
(vi)except as contemplated by the Equipment Note Purchase Agreement or any Subordinated Note Purchase Agreement, not guarantee or become obligated for the debts of any other Person and not hold out its credit as being available to satisfy the debts or any other obligations of any other Person;
(vii)hold itself out as a separate and distinct entity from any other Person (except as otherwise required by applicable tax law, to the extent the Issuer is a disregarded entity for U.S. federal income tax purposes);
(viii)observe all limited liability company and other organizational formalities required by the law of its jurisdiction of formation;
(ix)not acquire obligations or securities of any Person, except Permitted Investments and as otherwise contemplated in the Operative Agreements;
(x)allocate fairly and reasonably any overhead expenses shared with any other Person, if any;
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(xi)except for the Security Interests and Permitted Encumbrances, not pledge its assets for the benefit of any other Person or make any loans or advances to any Person except to the extent permitted by the Operative Agreements (but the Issuer may extend or forbear obligations of any Lessees under the related Leases in the ordinary course of business and in accordance with the provisions of the Servicing Agreement);
(xii)correct any known misunderstanding regarding its separate identity from other Persons;
(xiii)maintain adequate capital in light of its contemplated business operations;
(xiv)maintain books and records (in accordance with generally accepted accounting principles in the United States) separate from any other Person at its principal office which show a true and accurate record in United States dollars of all business transactions arising out of and in connection with the conduct of the Issuer and the operation of its business in sufficient detail to allow preparation of tax returns required to be prepared and the maintenance of the Indenture Accounts;
(xv)maintain bank and other accounts (other than the Indenture Accounts), if any, separate from any other Person;
(xvi)conduct its business in its own name; and
(xvii)not take any actions that would be inconsistent with maintaining the separate legal identity of the Issuer.
Section 5.03Portfolio Covenants. The Issuer covenants with the Indenture Trustee as follows:
(a)Railcar Dispositions. Except as described in the Granting Clause with respect to the redemption in whole of a Series of Equipment Notes, the Issuer will not sell, transfer or otherwise dispose of any Railcar or any interest therein, except that the Issuer may sell, transfer or otherwise dispose of or part with possession of (i) any Parts, or (ii) one or more Portfolio Railcars, as follows (any such sale, transfer or disposition described in clause (i), (ii), (iii) or (iv) of this Section 5.03(a), a “Permitted Railcar Disposition”):
(i)A Railcar Disposition pursuant to a Permitted Purchase Option (a “Purchase Option Disposition”);
(ii)A Railcar Disposition pursuant to receipt of insurance or other third party proceeds in connection with the Total Loss of a Portfolio Railcar
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(and any consequent later sale of such affected Railcar for scrap or salvage value) (an “Involuntary Railcar Disposition”);
(iii)A Railcar Disposition in the ordinary course of business (other than a Railcar Disposition as a result of a Total Loss, a Scrap Value Disposition or a Purchase Option Disposition), but only in compliance with the following conditions (a “Permitted Discretionary Sale”):
(A)At the time of such Railcar Disposition, no Event of Default or Early Amortization Event shall have occurred and then be continuing;
(B)With respect to the Portfolio Railcars to be sold pursuant to a Permitted Discretionary Sale (such Portfolio Railcars being referred to below as the “Sold Railcars”), each of the following conditions shall have been satisfied and the Indenture Trustee shall have received an Officer’s Certificate of the Issuer (or the Servicer on its behalf) certifying as to the satisfaction of such conditions:
(1)The Sold Railcars must be sold by the Issuer to a third party or an Issuer Group Member on an arms-length basis; provided that if the Sold Railcars are to be sold to an Issuer Group Member, the sum of (a) the aggregate sum of the Initial Appraised Value of all Portfolio Railcars that any Issuer Group Member has purchased from the Issuer, and (b) the aggregate Initial Appraised Value of all Sold Railcars to be purchased by any Issuer Group Member from the Issuer may not exceed twenty-five percent (25%) of the highest aggregate Initial Appraised Value of all Portfolio Railcars owned by the Issuer up to the related date of sale; and
(2)The Net Disposition Proceeds realized in such sale must be at least (a) the sum of one hundred five percent (105%) of the Allocable Note Balance with respect to such Sold Railcars and one hundred five percent (105%) of the Allocable Subordinated Note Balance with respect to such Sold Railcars, plus (b) the amount of any Hedge Partial Termination Value that would be owed by the Issuer to a Hedge Provider, if applicable, plus (c) an amount equal to any Redemption Premium that would be payable on the applicable Notes if on the applicable Payment Date such Net Disposition Proceeds were applied, an Optional Redemption of the applicable Notes would require payment of a Redemption Premium (calculated in the same manner); and
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(C)All amounts so transferred to the Collections Account may not be withdrawn therefrom except for distribution as contemplated by Section 3.14.
(iv)A Railcar Disposition at the end of the useful life (determined by the Servicer or the Administrator) of a Portfolio Railcar or if the Servicer or the Administrator determines that any Required Modification to a Portfolio Railcar is impracticable (a “Scrap Value Disposition”). Notwithstanding anything to the contrary herein, with respect to a Permitted Railcar Disposition constituting a Scrap Value Disposition, the Issuer may not deposit the related Net Disposition Proceeds into the Optional Reinvestment Account for application to a purchase of a Qualifying Replacement Railcar but shall deposit such proceeds directly into the Collections Account; and
(v)With respect to a Permitted Railcar Disposition constituting a Purchase Option Disposition or Involuntary Railcar Disposition, the Issuer will, if not electing to deposit such proceeds directly into the Collections Account, deposit the related Net Disposition Proceeds into the Optional Reinvestment Account for application, within the Replacement Period, to a purchase of Qualifying Replacement Railcars in a Replacement Exchange (as contemplated and provided in Section 3.05).
(b)Railcar Acquisitions. The Issuer will not purchase or otherwise acquire a Railcar (or an interest therein) other than the Railcars (or an interest therein) identified on a schedule to the Series Supplement for the Initial Notes, except that the Issuer will be permitted to:
(i)purchase or otherwise acquire, directly or indirectly, one or more Railcars constituting Qualifying Replacement Railcars in connection with any Replacement Exchange;
(ii)purchase or otherwise acquire, directly or indirectly, one or more additional Railcars pursuant to a Capital Contribution from the Member, so long as, in each case of clause (i) and (ii) (except as indicated below), each of the following requirements are satisfied on or prior to such purchase or other acquisition:
(A)in the case of clause (i) only, no Event of Default or Early Amortization Event shall have occurred and be continuing or would directly result therefrom;
(B)after giving effect to the acquisition, the Portfolio will comply with the Concentration Limits;
(C)the Railcars being acquired have an Appraisal showing an Initial Appraised Value;
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(D)each Railcar being acquired is an Eligible Railcar;
(E)the Purchase Price for each such Railcar does not exceed its Initial Appraised Value;
(F)except (i) in connection with Railcars being acquired in a Replacement Exchange for Portfolio Railcars that were not subject to a Lease at the time of the disposition thereof by the Issuer, the Railcars being acquired are each subject to a Permitted Lease; and all actions (including the applicable UCC, STB or Registrar General of Canada filings) shall have been taken to cause the Railcars being purchased or otherwise acquired to be subject to a first priority security interest in favor of the Indenture Trustee for the benefit of the Secured Parties; provided that no such actions will be required to be taken in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada; and
(G)the Railcars being acquired will be free and clear of Encumbrances other than Permitted Encumbrances; and
(iii)purchase or otherwise acquire, directly or indirectly, additional Railcars in connection with the issuance of an Additional Series.
(c)Permitted Railcar Acquisition. A Railcar acquisition by the Issuer complying with the provisions in subsection (b) immediately above constitutes a “Permitted Railcar Acquisition”. If two or more Railcars are being acquired in a Permitted Railcar Acquisition, the foregoing requirements in subsection (b) will be determined on an aggregate basis.
(d)Modification Payments and Capital Expenditures. The Issuer will not make any capital expenditures for the purpose of effecting any optional improvement or modification of any Portfolio Railcar or Parts outside of the ordinary course of business, except that the Issuer may make Optional Modifications and Required Modifications in its discretion and subject to the following limitations on the manner in which such Required Modifications and Optional Modifications may be funded:
(i)Required Modifications may be funded out of the Expense Account in accordance with Section 3.06, from distributions to the Issuer from the Flow of Funds, or from Capital Contributions made in accordance with Section 3.17; and
(ii)Optional Modifications may be funded from distributions to the Issuer pursuant to the Flow of Funds, or from Capital Contributions made in accordance with Section 3.17.
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In the case of any Optional Modification, the Issuer prior to undertaking such Optional Modification shall have determined, based upon consultation with the Servicer, that the Optional Modification is not expected to decrease the marketability of the Portfolio Railcar as a result of the expenditure on such Optional Modification.
(e)Leases.
(i)The Issuer will not surrender possession of any Portfolio Railcar to any Person (other than the Servicer pursuant to the Servicing Agreement) other than for purposes of maintenance or overhaul or pursuant to a Permitted Lease or for storage purposes pending the Servicer’s procurement of a Permitted Lease thereon.
(ii)The Issuer will, and will cause the Servicer in general to use its pro forma lease agreement or agreements approved by the Administrator, as such pro forma lease agreement or agreements may be revised for purposes of the Issuer specifically or generally from time to time by the Servicer in consultation with the Administrator (collectively, the “Pro Forma Lease”), for use by the Servicer on behalf of the Issuer as a starting point in the negotiation of Future Leases. However, with respect to any Future Lease entered into in connection with (x) the renewal or extension of a related Lease, (y) the leasing of a Portfolio Railcar to a Person that is or was a Lessee under a pre-existing Lease, or (z) the leasing of a Portfolio Railcar to a Person that is or was a Lessee under an operating lease of a Railcar that is being managed or serviced by the Servicer, a form of lease substantially similar to such pre-existing Lease or operating lease, as the case may be, may be used by the Servicer, in lieu of the Pro Forma Lease on behalf of the Issuer as a starting point in the negotiation of such Future Lease. The terms of the Pro Forma Lease may be revised from time to time by the Servicer, provided that any such revisions shall be consistent with a Lease originated thereunder being a Permitted Lease.
(f)Concentration Limits. The Issuer will not sell, purchase, otherwise take any Affirmative Issuer Action that would result, immediately after giving effect to such action, in noncompliance with the Concentration Limits; provided, that the foregoing restriction shall not apply to the renewal by the Issuer of an Existing Lease. Also, the Issuer will not consummate a Permitted Discretionary Sale if the effect of such action is or would be to cause noncompliance with any Concentration Limit. For the avoidance of doubt, noncompliance with any Concentration Limit that results from the Total Loss of Portfolio Railcars shall not constitute a breach of this covenant. Notwithstanding the foregoing, where the merger or consolidation of one or more Lessees results in an aggregate Adjusted Value that exceeds the Customer Concentration Limitation, the Issuer will not be obligated to address such noncompliance, however, additional Portfolio Railcars leased to such Lessee may not be purchased by the Issuer unless, upon purchase, the Adjusted Value of the Issuers’
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Portfolio Railcars leased to such individual Lessee will meet the applicable Customer Concentration Limitation.
Section 5.04Operating Covenants. The Issuer covenants with the Indenture Trustee as follows, provided that any of the following covenants with respect to the Portfolio Railcars shall not be deemed to have been breached by virtue of any act or omission of a Lessee or sub-lessee, or of any Person which has possession of a Portfolio Railcar for the purpose of repairs, maintenance, modification or storage, or by virtue of any requisition, seizure, or confiscation of a Portfolio Railcar (other than seizure or confiscation arising from a breach by the Issuer of such covenant) (each, a “Third Party Event”), so long as (i) none of the Issuer, the Servicer or the Administrator has consented to such Third Party Event; and (ii) the Issuer (or the Servicer on its behalf) as the Lessor of such Portfolio Railcar promptly and diligently takes such commercially reasonable actions as a leading railcar operating lessor would reasonably take in respect of such Third Party Event, including, as deemed appropriate (taking into account, among other things, the laws of the jurisdiction in which such Portfolio Railcar is located or operated), seeking to compel such Lessee or other relevant Person to remedy such Third Party Event or seeking to repossess the relevant Portfolio Railcar:
(a)Ownership. The Issuer will (i) on all occasions on which the ownership of each Portfolio Railcar is relevant, make it clear to third parties that title to the same is held by the Issuer, and (ii) not do, or knowingly permit to be done, or omit, or knowingly permit to be omitted, any act or thing which might reasonably be expected to jeopardize the rights of the Issuer as owner of each Portfolio Railcar, except as contemplated by the Operative Agreements.
(b)Compliance with Law; Maintenance of Permits. The Issuer will (i) comply in all material respects with all Applicable Laws, (ii) obtain all material governmental (including regulatory) registrations, certificates, licenses, permits and authorizations required for the use and operation of the Portfolio Railcars owned by it, (iii) not cause or knowingly permit, directly or indirectly, any Lessee to operate any Portfolio Railcar under any related Lease in any material respect contrary to any Applicable Law, and (iv) not knowingly permit, directly or indirectly, any Lessee not to obtain all material governmental (including regulatory) registrations, certificates, licenses, permits and authorizations required for such Lessee’s use and operation of any Portfolio Railcar under any related operating Lease; provided, however, that the Issuer may, in good faith and by appropriate proceedings diligently conducted, contest the validity or application of any such Applicable Law with respect to the Portfolio Railcars in any manner that does not (i) materially interfere with the use, possession or operation of any of the Portfolio Railcars, (ii) materially adversely affect the rights or interests of the Issuer or the Indenture Trustee, on behalf of the Secured Parties, in any of the Portfolio Railcars, (iii) expose the Issuer or the Indenture Trustee to criminal sanctions or (iv) violate any maintenance requirements contained in any insurance policy required to be maintained by the Issuer if such violation could reasonably be
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expected to adversely affect the coverage under such insurance policy. The Issuer will promptly notify the Indenture Trustee in reasonable detail of any such contest.
(c)Forfeiture. The Issuer will not do anything, and will not knowingly permit, directly or indirectly, any Lessee to do anything, which may reasonably be expected to expose any Portfolio Railcar to forfeiture, impoundment, detention, appropriation, damage or destruction (other than any forfeiture, impoundment, detention or appropriation which is being contested in good faith by appropriate proceedings) unless (i) adequate resources have been made available by the Issuer or the applicable Lessee for any payment which may arise or be required in connection with such forfeiture, impounding, detention or appropriation or proceedings taken in respect thereof, and (ii) such forfeiture, impounding, detention or appropriation or the continued existence thereof does not give rise to any material likelihood of the assets to which such forfeiture, impounding, detention or appropriation relates or any interest in such assets being sold, permanently forfeited or otherwise lost. In the event of a forfeiture, impoundment, detention or appropriation of such Portfolio Railcar not constituting a Total Loss, the Issuer will use all commercially reasonable efforts to obtain the prompt release of such Portfolio Railcar.
(d)Maintenance of Assets. The Issuer will, with respect to each Portfolio Railcar under Lease, cause, directly or indirectly, such Portfolio Railcar to be maintained in a state of repair and condition consistent with the reasonable commercial practice of leading railcar operating lessors with respect to similar railcars under lease, taking into consideration, among other things, the identity of the relevant Lessee (including the credit standing and operating experience thereof), the age and condition of the Portfolio Railcar and the jurisdiction in which the Portfolio Railcar is or will be operated or in which the Lessee is based. In addition, the Issuer will, with respect to each Portfolio Railcar that is not subject to a Lease, maintain such Portfolio Railcar in a state of repair and condition consistent with the reasonable commercial practice of leading railcar operating lessors with respect to railcars not under lease.
(e)Notification of Loss, Theft, Damage or Destruction. The Issuer will notify the Indenture Trustee, the Administrator, and the Servicer, in writing, as soon as the Issuer becomes aware of any loss, theft, damage or destruction to any Portfolio Railcar or Portfolio Railcars if the potential cost of repair or replacement of such assets (without regard to any insurance claim related thereto) may exceed $1,000,000.
(f)Insurance. The Issuer covenants with the Indenture Trustee as follows:
(i)Insurance. The Issuer will at all times after the Closing Date, at its own expense, keep or cause the Insurance Manager under the Insurance Agreement to keep each Portfolio Railcar insured with insurers of recognized responsibility with a rating of at least A- by A.M. Best Company (or a comparable rating by a nationally or internationally recognized rating group of comparable stature) or by other insurers approved in writing by the Requisite Majority, which
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approval shall not be unreasonably withheld, in amounts and against risks and with deductibles and terms and conditions not less beneficial to the insured thereunder than the insurance, if any, maintained by the Servicer with respect to similar equipment which it owns or leases, but in no event shall such coverage be for amounts or against risks less than the Prudent Industry Practice.
(ii)Additional Insurance. In the event that the Issuer shall fail to maintain insurance as herein provided, the Indenture Trustee shall, if directed in writing by the Requisite Majority, upon prior written notice to the Issuer and paid for out of funds in the Collections Account, obtain such insurance. If after the Indenture Trustee has obtained such insurance, the Issuer then obtains the coverage provided for in Section 5.04(f)(i) which was replaced by the insurance provided by the Indenture Trustee, and the Issuer provides the Indenture Trustee with evidence of such coverage reasonably satisfactory to the Indenture Trustee, the Indenture Trustee shall cancel the insurance it has obtained pursuant to the first sentence of this Section 5.04(f)(ii). In such event, the Issuer shall reimburse the Collections Account for all costs of cancellation. In addition, if directed in writing by the Requisite Majority to obtain insurance through a specified insurance agent, the Indenture Trustee shall obtain such insurance with such agent with respect to its interest in the Portfolio Railcars at the expense of the Noteholders, provided that such insurance does not interfere with the Issuer’s ability to insure the Portfolio Railcars as required by this Section 5.04(f) or adversely affect the Issuer’s insurance or the cost thereof, it being understood that all salvage rights to each Portfolio Railcar shall remain with the Issuer’s insurers at all times. Any insurance payments received from policies maintained by the Indenture Trustee pursuant to the previous sentence shall be retained by the applicable Person obtaining such insurance without reducing or otherwise affecting the Issuer’s obligations hereunder, other than with respect to Portfolio Railcars, with respect to which such payments have been made.
(g)No Accounts. Except as contemplated herein, the Issuer will not have an interest in any deposit account or securities account (other than the Indenture Accounts, any other bank account required in connection with any Liquidity Facility Documents and other than any account which may be required to be established as a necessary consequence of or in order to invest in or otherwise acquire a Permitted Investment) unless (i) any such further account and the Issuer’s interest therein shall be further charged or otherwise secured in favor of the Indenture Trustee for the benefit of the Secured Parties and (ii) any such further account is held in the custody of and under the “control” (as such term is defined in the UCC) of the Indenture Trustee.
(h)Notices. If at any time any creditor of the Issuer seeks to enforce any judgment or order of any competent court or other competent tribunal against any of the Collateral, the Issuer shall (i) promptly give written notice to such creditor and to such court or tribunal of the Indenture Trustee’s interests in the Collateral, (ii) if at any time an examiner, administrator, administrative receiver, receiver, trustee, custodian,
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sequestrator, conservator or other similar appointee (an “Insolvency Appointee”) is appointed in respect of any secured creditor or any of their assets, promptly give notice to such appointee of the Indenture Trustee’s interests in the Collateral and (iii) notify the Indenture Trustee thereof in either case of clauses (i) and (ii) above. The Issuer will not voluntarily appoint or cause to be appointed or commence any proceeding to appoint any Insolvency Appointee over all or any of its property.
(i)Compliance with Agreements. The Issuer will comply with and perform all its obligations under this Master Indenture and any Series Supplement, the Issuer Documents and the other Operative Agreements to which the Issuer is a party.
(j)Information. The Issuer will at all times give to the Indenture Trustee such information as the Indenture Trustee may reasonably require for the purpose of the discharge of the powers, rights, duties, authorities and discretions vested in it hereunder, under any other Issuer Document or by operation of Applicable Law.
(k)Further Assurances.
(i)The Issuer will comply with all reasonable directions given to it by the Indenture Trustee to perfect the Security Interests in the Collateral (except to the extent provided in the Granting Clauses herein). The Issuer will execute such further documents and do all acts and things as are required by law or as the Indenture Trustee may reasonably require at any time or times to give effect to this Master Indenture, the Issuer Documents and the relevant Operative Agreements.
(ii)Without limiting the foregoing, from time to time, the Issuer shall authorize and file such financing statements and cause to be authorized and filed such continuation statements, and shall make or cause to be made such filings with the STB and with the Registrar General of Canada and take or cause to be taken such similar actions as are described in the Granting Clauses under “Priority”, all in such manner and in such places as may be required by law to fully perfect, preserve, maintain and protect the security interest of the Indenture Trustee for the benefit of the Secured Parties in the Portfolio Railcars, related Leases and other Collateral granted hereby (including without limitation any such Portfolio Railcars acquired by the Issuer from time to time after the Initial Closing Date), including in the proceeds thereof, it being understood that the Issuer shall not be required to make (to cause to be made) any filings in Mexico or under any Provincial Personal Property Security Act or any other non-federal legislation in Canada. The Issuer shall deliver (or cause to be delivered) to the Indenture Trustee file-stamped copies of, or filing receipts for, any document filed as provided above, following such filing in accordance herewith. In the event that the Issuer fails to perform its obligations under this subsection, the Indenture Trustee may perform such obligations, at the expense of the Issuer, and the Issuer hereby authorizes the Indenture Trustee and grants to the Indenture Trustee an irrevocable power of attorney to take any and all steps in
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order to perform such obligations in the Issuer’s own name and on behalf of the Issuer, as are necessary or desirable, in the determination of the Indenture Trustee, as applicable.
(l)Original Leases. Following the Delivery Date with respect to a Lease (or, in the case of a Future Lease, the date of origination of such Future Lease), the Issuer will cause the Servicer to retain and maintain possession and control of an original or a copy of the relevant Lease, if any, provided that if any Lease is on a Mixed Rider and the Servicer is required to deliver such Lease to a secured party in respect of railcars subject to such Lease that are not Portfolio Railcars, the Servicer may deliver such Lease to the other secured party with a letter in the Servicer’s customary form advising such other secured party that (x) the applicable Portfolio Railcars, the Lease and the benefit thereof insofar as it relates to such Portfolio Railcars, have been pledged to the Indenture Trustee, (y) delivery of such Lease does not constitute a purchase of such Lease by the recipient secured party, nor does it constitute or evidence any assignment or transfer of rights thereto to the recipient secured party, insofar as it relates to the Portfolio Railcars and (z) notwithstanding such delivery of such Lease, the Indenture Trustee does not sell, transfer, assign, waive or subordinate in any respect its security interest in the applicable Portfolio Railcars or such Lease or any other property pledged to it. Without limiting the generality of the foregoing and by way of perfecting the Indenture Trustee’s security interest in certain collateral, including the Chattel Paper relating to any Lease, if any, the Issuer will (i) execute and deliver to the Indenture Trustee, on behalf of the Secured Parties, such financing or continuation statements or continuation statements in lieu, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Indenture Trustee may reasonably request, in order to perfect and preserve the pledge, transfer, assignment and Security Interests granted or purported to be granted hereby, (ii) if any Collateral shall be evidenced by a promissory note or other instrument, deliver and pledge to the Indenture Trustee, on behalf of the Secured Parties, such note or instrument, duly indorsed or accompanied by duly executed instruments of transfer or assignment in blank and undated, all in form and substance reasonably necessary to protect such pledge, and (iii) deliver to the Indenture Trustee, on behalf of the Secured Parties, promptly upon receipt thereof all instruments representing or evidencing any of the Collateral, duly endorsed or accompanied by duly executed instruments of transfer or assignment in blank and undated, all in form and substance reasonably necessary to effect such transfer.
(m)No Effect on Security Interest. Except as otherwise provided in this Master Indenture or other Operative Agreements, the Issuer will not agree to the amendment of any Issuer Document unless the Issuer has provided to the Indenture Trustee from legal counsel reasonably acceptable to the Indenture Trustee an opinion to the effect that such amendment will not result in the Security Interests being prejudiced (the reasonable expenses of such opinion to be paid by the Issuer).
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(n)Restrictions on Amendments to Assigned Agreements and Certain Other Actions. (i) The Issuer will not take, or knowingly permit to be taken, any action which would amend, terminate or discharge or prejudice the validity or effectiveness or priority of the Security Interests or permit any party to any of the Issuer Documents whose obligations form part of the security created by this Master Indenture to be released from such obligations except, in each case as permitted or contemplated by this Master Indenture, or the other Issuer Documents or the Operative Agreements, (ii) without the prior written consent of the Indenture Trustee (acting at the Direction of the Requisite Majority), the Issuer shall not, directly or indirectly, (A) cancel or terminate, or consent to or accept any cancellation or termination of, or amend, modify or change in any manner, any Assigned Agreement or any term or condition thereof or (B) waive any default under, or any breach of or noncompliance with any term or condition of, any Assigned Agreement or authorize or approve, or consent to, any of the foregoing and (iii) the Issuer will not knowingly take, or knowingly permit to be taken, any action which, other than the performance of its obligations under the Issuer Documents and the Operative Agreements, would reasonably be expected to result in the lowering or withdrawal of the then current rating of any Equipment Note by the applicable Rating Agency.
(o)Subsidiaries. Except with the consent of the Indenture Trustee (acting at the Direction of the Requisite Majority), the Issuer will not have or establish any Subsidiaries.
(p)Restriction on Asset Dealings. The Issuer shall not sell, transfer, release or otherwise dispose of any of, or grant options, warrants or other rights with respect to, any of its assets to any Person other than as expressly permitted or contemplated in the Operative Agreements.
(q)Organizational Documents. Subject to Section 5.02(j) and the following sentence, the Issuer shall not take any action to amend, modify or supplement its organizational documents or change its jurisdiction of organization without first obtaining Rating Agency Confirmation. The Issuer shall not, without obtaining the prior written consent of the Requisite Majority (which consent shall not be unreasonably withheld) as well as Rating Agency Confirmation, take any action to waive, repeal, amend, vary, supplement or otherwise modify the provisions of its LLC Agreement which requires consent or approval of the special member of the Issuer, or limits the actions of the Issuer with respect to voluntary insolvency proceedings or involuntary insolvency proceedings of the Issuer.
(r)Servicing Agreement and Administrative Services Agreement. The Issuer shall at all times be a party to the Servicing Agreement and shall, if necessary, take any steps required of it in connection with the appointment of any Successor Servicer thereunder. The Issuer shall at all times be a party to the Administrative Services Agreement or a substitute agreement substantially similar thereto.
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(s)Insurance Agreement. The Issuer shall at all times be a party to the Insurance Agreement and shall, if necessary, take any steps required of it in connection with the appointment of any successor Insurance Manager thereunder.
(t)Condition. The Issuer, at its own cost and expense, shall maintain, repair and keep each Portfolio Railcar, and cause the Servicer under the Servicing Agreement to maintain, repair and keep each Portfolio Railcar, (i) according to Prudent Industry Practice and in all material respects, in good working order, and in good physical condition for railcars of a similar age and usage, normal wear and tear excepted, (ii) in a manner in all material respects consistent with maintenance practices used by the Servicer, in respect of railcars owned, leased or managed by the Servicer similar in type to such Portfolio Railcar or with respect to any Portfolio Railcar that is subject to a Net Lease, maintenance practices used by the applicable Lessee, in respect of railcars similar in type to such Portfolio Railcar used by such Lessee on its domestic routes in the United States (provided, however, that after the return to the Servicer of any Portfolio Railcar which was subject to a Net Lease immediately prior to such return, such Portfolio Railcar shall be maintained and repaired in all material respects in a manner consistent with maintenance practices used by the Servicer in respect of railcars owned, leased or managed by the Servicer similar in type to such Portfolio Railcar), (iii) in accordance with all manufacturer’s warranties in effect but only to the extent that the lack of compliance therewith would reasonably be expected to adversely affect the coverage thereunder and in accordance with all applicable provisions, if any, of insurance policies required to be maintained pursuant to Section 5.04 and (iv) in compliance in all material respects with any applicable laws and regulations from time to time in effect, including, without limitation, the Field Manual of the AAR, FRA rules and regulations and Interchange Rules as they apply to the maintenance and operation of the Portfolio Railcars in interchange regardless of upon whom such applicable laws and regulations are nominally imposed; provided, however, that, so long as the Servicer or, with respect to any Portfolio Railcar subject to a Lease which is a Net Lease, the applicable Lessee, as the case may be, is similarly contesting such law or regulation with respect to all other similar equipment owned or operated by Servicer or, with respect to any Portfolio Railcar subject to a Net Lease, the applicable Lessee, as the case may be, the Issuer (or such Lessee) may, in good faith and by appropriate proceedings diligently conducted, contest the validity or application of any such standard, rule or regulation in any manner that does not (w) materially interfere with the use, possession, operation or return of any of the Portfolio Railcars, (x) materially adversely affect the rights or interests of the Indenture Trustee in the Portfolio Railcars, (y) expose any Secured Party or the Indenture Trustee to criminal sanctions or (z) violate any maintenance requirements contained in any insurance policy required to be maintained by the Issuer under this Master Indenture if such violation would reasonably be expected to adversely affect the coverage thereunder; provided further, that the Issuer shall promptly notify the Indenture Trustee in reasonable detail of any such contest upon the Issuer or the Servicer becoming aware thereof. In no event shall the Issuer discriminate in any material respect as to the use or maintenance of any Portfolio Railcar (including the periodicity of maintenance or recordkeeping in respect of
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such Portfolio Railcar) as compared to equipment of a similar nature which the Servicer owns or manages. The Issuer will maintain in all material respects all records, logs and other materials required by relevant industry standards or any governmental authority having jurisdiction over the Portfolio Railcars required to be maintained in respect of any Portfolio Railcar.
(u)Use. The Issuer shall be entitled to the possession of the Portfolio Railcars and to the use of the Portfolio Railcars by it or any Affiliate in the United States and subject to the remaining provisions of this subsection, Canada and Mexico, only in the manner for which the Portfolio Railcars were designed and intended and so as to subject the Portfolio Railcars only to ordinary wear and tear. In no event shall the Issuer use, store or permit the use or storage of any Portfolio Railcar in any jurisdiction not included in the insurance coverage required by Section 5.04(f). The Issuer will not allow more than 33⅓% of the Portfolio Railcars to be used predominantly outside of the United States within the meaning of Proposed Treasury Regulation Section 1.168-2(g)(5).
(v)Custody of Portfolio Leases. Subject to the proviso in Section 5.04(l), after entering into a Future Lease, the Issuer shall cause the Servicer to retain possession and maintain possession and control of any original copies or counterparts of such Future Lease.
(w)Portfolio Railcar Total Loss. In the event that any Portfolio Railcar shall suffer a Total Loss, the Issuer shall (or shall cause the Servicer to) promptly and fully inform the Indenture Trustee of such Total Loss once becoming aware of the same.
(x)Certain Reports. No later than ten (10) Business Days following December 31, 2021, and no later than 10 Business Days following each December 31 (or each March 31, June 30, September 30 and December 31, with respect to clause (iii) below) thereafter, the Issuer will furnish (or cause the Servicer under the Servicing Agreement to furnish) to the Indenture Trustee and each Rating Agency an accurate statement, as of the preceding December 31 (or as of the preceding calendar quarter with respect to clause (iii) below) (i) showing the amount, description and reporting marks of the Portfolio Railcars, the amount, description and reporting marks of all Portfolio Railcars that may have suffered a Total Loss during the twelve months ending on such December 31 (or since the Initial Closing Date, in the case of the first such statement), and such other information regarding the condition or repair of the Portfolio Railcars as the Indenture Trustee may reasonably request, (ii) stating that in the case of all Portfolio Railcars repainted during the period covered by such statement, the markings required by Section 2.2(i) of the Servicing Agreement shall have been preserved or replaced, (iii) showing the percentage of use in Canada and Mexico based on the total mileage traveled by the Portfolio Railcars for the prior calendar quarter as reported to the Servicer by railroads (or Lessees in the case of Net Leases, as applicable) and (iv) stating that, except as disclosed therein, the Issuer is not aware of any condition of any Portfolio Railcar which would cause such Portfolio Railcar not to
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comply in any material respect with the rules and regulations of the FRA and the interchange rules of the Field Manual of the AAR as they apply to the maintenance and operation of the Portfolio Railcars in interchange and any other requirements hereunder.
(y)Inspection.
(i)Upon the occurrence of an Event of Default or a Servicer Termination Event, the Indenture Trustee, at the Direction of the Requisite Majority, together with the agents, representatives, accountants and legal and other advisors of each of the foregoing (collectively, the “Inspection Representatives”), shall have the right to (A) conduct a field examination of a reasonable representative sample of the Portfolio Railcars, which may not in any event in the first instance exceed 100 Portfolio Railcars (each such inspection, a “Unit Inspection”), (B) (I) inspect all documents (the “Related Documents”), including, without limitation, all related Leases, insurance policies, warranties or other agreements, relating to the Portfolio Railcars and the other Collateral (each such inspection, a “Related Document Inspection”) and (II) inspect each of the Issuer’s and the Servicer’s books, records and databases (which shall include reasonable access to the Issuer’s and the Servicer’s computers and computer records to the extent necessary to determine compliance with the Operative Agreements) (collectively, the “Books and Records”) with respect to the Portfolio Railcars and the other Collateral and the Related Documents (including without limitation data supporting all reporting requirements under the Operative Agreements) (each such inspection, a “Books and Records Inspection”) and (C) discuss (I) the affairs, finances and accounts of the Issuer (with respect to itself) and the Servicer (with respect to itself and the Issuer) and (II) the Portfolio Railcars and the other Collateral, the Related Documents and the Books and Records, in each case with the principal executive officer and the principal financial officer of each of the Issuer and the Servicer, as applicable (the foregoing clauses (I) and (II) a “Company Inspection”) (the Unit Inspections, the Related Document Inspections, the Books and Records Inspections and the Company Inspections described in clauses (A), (B) and (C), collectively, the “Inspections”).
(ii)All Inspections shall be at the sole cost and expense of the Issuer (including the reasonable legal and accounting fees, costs and expenses incurred by the Indenture Trustee, and its Inspection Representatives). All Inspections shall be conducted upon reasonable request and notice to the Issuer (with respect to itself) and the Servicer (with respect to itself and the Issuer) and shall (A) be conducted during normal business hours, (B) be subject to the Issuer’s and the Servicer’s customary security procedures, if any, and (C) not unreasonably disrupt the Issuer’s or the Servicer’s business.
(iii)If in connection with or as a result of the initial Railcar Inspection, the Indenture Trustee determines (at the Direction of the Requisite
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Majority) that an Inspection Issue (as defined below) has occurred, then the Indenture Trustee shall have the right to conduct additional Inspections from time to time consisting of additional samplings of Portfolio Railcars in numbers that the Indenture Trustee or its Inspection Representative determines to be a reasonable sampling sufficient to confirm the scope of any such Inspection Issues. “Inspection Issue” means the discovery that a material portion of the Portfolio Railcars inspected are not being used or maintained in a manner that complies with the requirements of this Master Indenture.
Without prejudice to the right to conduct Inspections, all parties granted inspection rights hereunder shall confer with a view toward coordinating their conduct with respect to the Inspections in order to minimize the costs thereof and business disruption attendant thereto.
(z)Modifications.
(i)Required Modifications. In the event a Required Modification to a Portfolio Railcar is required, the Issuer agrees to make or cause to be made such Required Modification at its own expense; provided, that the Issuer (or applicable Lessee) may, in good faith and by appropriate proceedings diligently conducted, contest the validity or application of the law, rule, requirement or regulation requiring such Required Modification in any manner that does not (w) materially interfere with the use, possession, operation, maintenance or return of any Portfolio Railcar, (x) materially adversely affect the rights or interests of the Issuer or the Indenture Trustee in the Portfolio Railcars, (y) expose the Issuer or the Indenture Trustee to criminal sanctions, or (z) violate any maintenance requirements contained in any insurance policy required to be maintained by the Issuer under this Master Indenture if such violation would reasonably be expected to adversely affect the coverage thereunder; provided further, that the Issuer shall notify (or cause to be notified) the Indenture Trustee thereof, which notice shall also set forth the time period for the making of such Required Modification and the Issuer’s or Servicer’s reasonable estimate of the cost thereof; and, provided further, that if a Required Modification is economically impracticable, the Issuer may sell the affected Portfolio Railcar pursuant to a Scrap Value Disposition.
(ii)Optional Modifications. The Issuer at any time may or may permit a Lessee to, in its discretion and at its own or such Lessee’s cost and expense, modify, alter or improve any Portfolio Railcar in a manner which is not a Required Modification; provided that (A) no such optional modification shall diminish the fair market value, utility or remaining economic useful life of such Portfolio Railcar below the fair market value, utility or remaining economic useful life thereof immediately prior to such optional modification, in more than a de minimis respect, assuming such Portfolio Railcar was then at least in the condition required to be maintained by the terms of this Master Indenture and
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(B) the Issuer, or the Servicer on its behalf, shall conclude in good faith that the proposed optional modification is likely to enhance the marketability of the Portfolio Railcar (or such optional modification is requested by a Lessee).
ARTICLE VI

THE INDENTURE TRUSTEE
Section 6.01Acceptance of Trusts and Duties. If a Default has occurred and is continuing and any applicable grace period has expired, or if an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise such of the rights and powers vested in it by this Master Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs. The duties and responsibilities of the Indenture Trustee shall be as expressly set forth herein, and no implied covenants or obligations shall be read into this Master Indenture against the Indenture Trustee. The Indenture Trustee accepts the obligations hereby created and applicable to it and agrees to perform the same but only upon the terms of this Master Indenture and agrees to receive and disburse all moneys received by it in accordance with the terms hereof. The Indenture Trustee in its individual capacity shall not be answerable or accountable under any circumstances, except for its own willful misconduct or negligence or bad faith or breach of its representations, warranties and/or covenants and the Indenture Trustee shall not be liable for any action or inaction of the Issuer or any other parties to any of the Operative Agreements.
Section 6.02Absence of Duties. The Indenture Trustee shall have no duty to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of any Lessee. Notwithstanding the foregoing, the Indenture Trustee shall make available on its internet website any reports, Notices, requests, demands, certificates, financial statements and other documents required to be delivered by the Indenture Trustee under the Operative Agreements, and the Indenture Trustee, upon written request, shall furnish to each Noteholder, promptly upon receipt thereof, duplicates or copies of any other reports, Notices, requests, demands, certificates, financial statements and other instruments furnished to the Indenture Trustee under this Master Indenture and any Series Supplement.
Section 6.03Representations or Warranties. The Indenture Trustee does not make and shall not be deemed to have made any representation or warranty as to the validity, legality or enforceability of this Master Indenture, the Notes, any other securities or any other document or instrument or as to the correctness of any statement contained in any thereof, except that the Indenture Trustee in its individual capacity hereby represents and warrants (i) that each such specified document to which it is a party has been or will be duly executed and delivered by one of its officers who is and will be duly authorized to execute and deliver such document on its behalf, (ii) this Master Indenture is the legal, valid and binding obligation of U.S. Bank, enforceable
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against U.S. Bank in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally, and (iii) no consent, approval or other action by or any notice of or filing with any court or administrative or governmental body is required in connection with the authorization, execution and delivery by U.S. Bank of this Master Indenture or other Operative Agreements to which it is a party, or the fulfillment or compliance by U.S. Bank with the respective terms and provisions thereof, except as may have already been obtained.
Section 6.04Reliance; 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, in the case of the Issuer, and in the case of any other party to any Operative Agreement, the governing body of such Person, certified in an accompanying Officer’s Certificate as duly adopted and in full force and effect, as conclusive evidence that such resolution has been duly adopted 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 shall be entitled to receive and may for all purposes hereof conclusively rely on a certificate, signed by an officer of any duly authorized Person, 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 Servicer or the Administrator upon written request such information and copies of such documents as the Indenture Trustee may have and as are necessary for the Servicer or the Administrator to perform its duties under Articles II and III. The Indenture Trustee shall assume, and shall be fully protected in assuming, that the Issuer is authorized by its constitutional documents to enter into this Master Indenture and to take all action permitted to be taken by it pursuant to the provisions hereof, and shall not inquire into the authorization of the Issuer with respect thereto.
The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the Direction of the Noteholders in accordance herewith relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Master Indenture and any Series Supplement.
The Indenture Trustee may execute any of the obligations or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder.
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The Indenture Trustee may consult with counsel, accountants and other experts as to any matter relating to this Master Indenture and any Opinion of Counsel or any advice of such counsel, accountants and other experts shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel.
The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Master Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or Direction of any of the Noteholders, pursuant to the provisions of this Master Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby.
The Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Master Indenture shall in any event require the Indenture Trustee to perform, or be responsible or liable for the manner of performance of, any obligations of the Issuer, the Servicer or the Administrator under this Master Indenture and any Series Supplement or any of the Operative Agreements.
The Indenture Trustee shall not be liable for any losses or Taxes (except for Taxes relating to any compensation, fees or commissions of any entity acting in its capacity as Indenture Trustee hereunder) or in connection with the selection of Permitted Investments or for any investment losses resulting from Permitted Investments unless the entity that is the Indenture Trustee is the issuer or the obligor of such a Permitted Investment.
When the Indenture Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.01(f) or 4.01(g), such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors’ rights generally.
The Indenture Trustee shall not be charged with knowledge of an Event of Default unless a Responsible Officer of the Indenture Trustee obtains actual knowledge of such event or receives written notice of such event from the Issuer, the Administrator or Noteholders owning Notes aggregating not less than 10% of the Outstanding Principal Balance of the Notes.
The Indenture Trustee shall have no duty to monitor the performance of the Issuer, the Servicer, the Administrator or any other party to the Operative Agreements, nor shall it have any liability in connection with the malfeasance or nonfeasance by such
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parties. The Indenture Trustee shall have no liability in connection with compliance by the Issuer, the Servicer, the Administrator or any Lessee under a Lease with statutory or regulatory requirements related to any Railcar or any Lease. The Indenture Trustee shall not make or be deemed to have made any representations or warranties with respect to any Railcar or any Lease or the validity or sufficiency of any assignment or other disposition of any Railcar or any Lease.
The Indenture Trustee shall not be liable for any error of judgment reasonably made in good faith by an officer or officers of the Indenture Trustee, unless it shall be determined by a court of competent jurisdiction in a non-appealable judgment that the Indenture Trustee was negligent in making such judgment.
The Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless so requested in writing by the Noteholders evidencing not less than 25% of the principal amount of the Equipment Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Servicing Agreement or any other Operative Agreement, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding; the reasonable expense of every such examination shall be paid by the Person making such request or, if paid by the Indenture Trustee, shall be reimbursed by the Person making such request upon demand.
The Indenture Trustee shall have no obligation to invest and reinvest any cash held in the Indenture Accounts in the absence of timely and specific written investment direction from the Administrator or as expressly provided herein. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon in accordance with the Operative Agreements. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity in accordance with the Operative Agreements or by any other Person or the failure of the Administrator to provide timely written investment direction.
In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out or caused by a Force Majeure Event; it being understood that the Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. “Force Majeure Event” means and includes any events, circumstances or causes whatsoever beyond a Person’s reasonable control, as the case may be, including, without limitation, governmental restrictions, regulations or controls, mechanical breakdowns, shortages of
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or inability to obtain labor, fuel, steam, water, electricity or materials, acts of God, inability to obtain governmental approvals or consents, adjustment of insurance claims, enemy action, national emergency, epidemics, pandemics, landslides, lightning, earthquake, civil commotion, fires, floods or any other casualties, events or circumstances; provided, however, that such Person shall have used reasonable efforts to perform its obligations notwithstanding such occurrences.
In the event that the Indenture Trustee is also acting as Paying Agent or Note Registrar hereunder or under any Operative Agreement, the rights and protections afforded to the Indenture Trustee pursuant to this Article VI shall also be afforded to such Paying Agent and Note Registrar.
In no event shall the Indenture Trustee be liable of failure to perform its duties hereunder if such failure is a direct or proximate result of another party’s failure to perform its obligations hereunder.
The Indenture Trustee shall not be accountable or responsible in any manner whatsoever for any action of the Issuer, the Administrator or the Servicer, or for the application of moneys by the Servicer until such time as funds are received by the Indenture Trustee.
If the Indenture Trustee receives different or conflicting instructions or directions from more than one group of Noteholders of a given Class, each of which is provided in accordance with this Master Indenture, the Indenture Trustee shall act in accordance with the instructions or directions provided by the group of Noteholders representing the larger aggregate principal amount of Equipment Notes then Outstanding.
The Indenture Trustee shall not be required to take any action it is directed to take under this Indenture if the Indenture Trustee reasonably determines in good faith that the action so directed would involve the Indenture Trustee in personal liability, be unjustly prejudicial to the non-directing Noteholders, is inconsistent with this Master Indenture or other Operative Agreement or is contrary to law.
The Indenture Trustee’s receipt of reports and information hereunder shall not constitute notice of any information contained therein or determinable therefrom, including but not limited to a party’s compliance with covenants under this Master Indenture.
Section 6.05Not Acting in Individual Capacity. The Indenture Trustee acts hereunder solely as trustee unless otherwise expressly provided; and all Persons, other than the Noteholders to the extent expressly provided in this Master Indenture, having any claim against the Indenture Trustee by reason of the transactions contemplated hereby shall look, subject to the lien and the Flow of Funds, only to the property of the Issuer for payment or satisfaction thereof.
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Section 6.06No Compensation from Noteholders. The Indenture Trustee agrees that it shall have no right against the Noteholders for any fee as compensation for its services hereunder.
Section 6.07Notice of Defaults; Communications During Continuance of Event of Default.
(a)As promptly and soon as practicable after, and in any event within thirty (30) days after, the occurrence of any Default hereunder, the Indenture Trustee shall send to the Issuer, the Liquidity Facility Providers and the Noteholders notice of such Default hereunder actually known to a Responsible Officer of the Indenture Trustee, unless such Default shall have been cured or waived;
(b)Following the transmission of any notice of Default pursuant to Section 6.07(a), unless such Default shall have been cured or waived, the Indenture Trustee shall promptly send:
(i)to the Noteholders, any written communications addressed to the Noteholders and received by the Indenture Trustee from a Liquidity Facility Provider; and
(ii)to the Noteholders and the Liquidity Facility Providers, any written communication received by the Indenture Trustee from or addressed to any Rating Agency in respect of the Notes.
Section 6.08Indenture Trustee May Hold Securities. The Indenture Trustee, any Paying Agent, the Note Registrar or any of their Affiliates or any other agent in their respective individual or any other capacity, may become the owner or pledgee of securities and, may otherwise deal with the Issuer with the same rights it would have if it were not the Indenture Trustee, Paying Agent, Note Registrar or such other agent.
Section 6.09Corporate Trustee Required; Eligibility. There shall at all times be an Indenture Trustee which shall meet the Eligibility Requirements. If such Person publishes reports of conditions at least annually, pursuant to law or to the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 6.09, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published. In case at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of this Section 6.09 to act as Indenture Trustee, the Indenture Trustee shall resign within thirty (30) days as Indenture Trustee in the manner and with the effect specified in Section 7.01.
Section 6.10Reports by the Issuer. The Issuer shall furnish to the Indenture Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal accounting officer or principal financial officer of the Administrator, as applicable, as to his or her knowledge of the Issuer’s compliance with
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all conditions and covenants under this Master Indenture and any Series Supplement (it being understood that for purposes of this Section 6.10, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Master Indenture).
Section 6.11Compensation. The Issuer covenants and agrees to pay to the Indenture Trustee from time to time, and the Indenture Trustee shall be entitled to, the fees and expenses separately agreed in writing between the Issuer and the Indenture Trustee, and will further pay or reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any of the provisions hereof or any other documents executed in connection herewith (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and of all persons not regularly in its employ).
Section 6.12Certain Rights of the Requisite Majority. Each of the Indenture Trustee and by its acceptance of the Notes, the Noteholders, hereby agrees that, if the Indenture Trustee shall fail to act in accordance with Direction by the Requisite Majority (with respect to the Notes as a whole) at any time at which it is so required to act hereunder or under any other Operative Agreement, then the Requisite Majority shall be entitled to take such action directly in its own capacity or on behalf of the Indenture Trustee. If the Indenture Trustee fails to act in accordance with Direction by the Requisite Majority when so required to act under any Operative Agreement, then the Indenture Trustee shall, upon the further Direction of the Requisite Majority, irrevocably appoint the Requisite Majority, and any authorized agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the name of the Indenture Trustee or its own name, to take any and all actions that the Indenture Trustee is authorized to take under any Operative Agreement, to the extent the Indenture Trustee has failed to take such action when and as required under such Operative Agreement.
Section 6.13Lessee Contact. The Indenture Trustee agrees that it shall not engage in any Restricted Lessee Contact with any Lessee other than the exceptions set forth in Section 2.1(b) of the Servicing Agreement.
ARTICLE VII

SUCCESSOR TRUSTEES
Section 7.01Resignation and Removal of Indenture Trustee. The Indenture Trustee may resign as Indenture Trustee with respect to the Notes at any time without cause by giving at least sixty (60) days’ prior written notice to the Issuer, the Servicer, the Administrator and the Noteholders, provided that the Indenture Trustee shall continue to serve as Indenture Trustee until a successor has been appointed pursuant to Section 7.02. The Requisite Majority may at any time remove the Indenture Trustee without cause by an instrument in writing delivered to the Issuer, the Servicer, the
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Administrator and the Indenture Trustee being removed. In addition, the Issuer may remove the Indenture Trustee if: (i) such Indenture Trustee fails to comply with Section 7.02(d), (ii) such Indenture Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or public officer takes charge of such Indenture Trustee or its property or (iv) such Indenture Trustee becomes incapable of acting. References to the Indenture Trustee in this Master Indenture include any successor Indenture Trustee appointed in accordance with this Article VII.
Section 7.02Appointment of Successor.
(a)In the case of the resignation or removal of the Indenture Trustee under Section 7.01, the Issuer shall promptly appoint a successor Indenture Trustee; provided that the Requisite Majority may appoint, within one (1) year after such resignation or removal, a successor Indenture Trustee which may be other than the successor Indenture Trustee appointed by the Issuer, and such successor Indenture Trustee appointed by the Issuer shall be superseded by the successor Indenture Trustee so appointed by the Requisite Majority. If a successor Indenture Trustee shall not have been appointed and accepted its appointment hereunder within sixty (60) days after the Indenture Trustee gives notice of resignation or is removed, the retiring or removed Indenture Trustee, the Issuer, the Administrator, the Servicer or the Requisite Majority 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 by the Requisite Majority as provided in the first sentence of this paragraph within one (1) year from the date of the appointment by such court.
(b)Any successor Indenture Trustee, however appointed, shall promptly execute and deliver to the Issuer, the Servicer, the Administrator and the predecessor Indenture Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the predecessor Indenture Trustee shall become effective and such successor Indenture Trustee, without further act, shall become vested with all the estates, properties, rights, powers, duties and trusts of such predecessor Indenture Trustee hereunder in the trusts hereunder applicable to it with like effect as if originally named the Indenture Trustee herein; provided that, upon the written request of such successor Indenture Trustee, such predecessor Indenture Trustee shall, upon payment of all amounts due and owing to it, execute and deliver an instrument transferring to such successor 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 predecessor 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 solely for the benefit of the Notes.
(c)If a successor Indenture Trustee is to be appointed with respect to only a part of the predecessor Indenture Trustee duties hereunder, the Issuer, the
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predecessor Indenture Trustee and the successor Indenture Trustees shall execute and deliver an Indenture Supplement which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Indenture Trustee as to which the predecessor Indenture Trustee is not retiring shall continue to be vested in the predecessor Indenture Trustee, and shall add to or change any of the provisions of this Master Indenture as shall be necessary to provide for or facilitate the administration of the Notes hereunder by more than one Indenture Trustee.
(d)Each Indenture Trustee shall be an Eligible Institution and shall meet the Eligibility Requirements, if there be such an institution willing, able and legally qualified to perform the duties of an Indenture Trustee hereunder; provided that each Rating Agency shall receive notice of any replacement Indenture Trustee.
(e)Any Person into which the Indenture Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any Person to which substantially all the business of the Indenture Trustee may be transferred, shall, subject to the terms of paragraph (d) of this Section, be the Indenture Trustee under this Master Indenture and any Series Supplement without further act.
ARTICLE VIII

INDEMNITY
Section 8.01Indemnity. The Issuer shall indemnify the Indenture Trustee (and its officers, directors, employees and agents) for, and hold it harmless from and against, any loss, liability, claim, obligation, damage, injury, penalties, actions, suits, judgments or expense (including attorney’s fees and expenses and the costs and expenses of enforcing the Issuer’s indemnification and contractual obligations hereunder) incurred by it without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Master Indenture and its duties under this Master Indenture and any Series Supplement and the Notes, including the costs and expenses of defending itself against any claim or liability and of complying with any process served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties and hold it harmless against, any loss, liability or reasonable expense incurred without negligence or bad faith on its part, arising out of or in connection with actions taken or omitted to be taken in reliance on any Officer’s Certificate furnished hereunder, or the failure to furnish any such Officer’s Certificate required to be furnished hereunder. The Indenture Trustee shall notify the Noteholders, the Issuer, the Servicer, each Hedge Provider and each Liquidity Facility Provider and, in the case of any such claim in excess of 5% of the Adjusted Value of the Portfolio Railcars, each Rating Agency, promptly of any claim asserted against the Indenture Trustee for which it may seek indemnity; provided, however, that failure to provide such notice shall not invalidate any right to indemnity hereunder except to the extent the
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Issuer is prejudiced by such delay. The Issuer shall defend the claim and the Indenture Trustee shall cooperate in the defense (unless the Indenture Trustee determines that an actual or potential conflict of interest exists, in which case the Indenture Trustee shall be entitled to retain separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel). The Issuer need not pay for any settlements made without its consent; provided that such consent shall not be unreasonably withheld. The Issuer need not reimburse any expense or indemnity against any loss or liability incurred by the Indenture Trustee through negligence or bad faith.
Section 8.02Noteholders’ Indemnity. The Indenture Trustee shall be entitled, subject to such Indenture Trustee’s duty set forth in Section 6.01 to act with the required standard of care, to be indemnified by the Noteholders of the Equipment Notes before proceeding to exercise any right or power under this Master Indenture and any Series Supplement or the Servicing Agreement at the request or Direction of such Noteholders.
Section 8.03Survival. The provisions of Sections 8.01 and 8.02 hereof shall survive the termination of this Master Indenture or the earlier resignation or removal of the Indenture Trustee.
ARTICLE IX

SUPPLEMENTAL INDENTURES
Section 9.01Supplemental Indentures Without the Consent of the Noteholders.
(a)Without the consent of any Noteholder and based on an Opinion of Counsel in form and substance reasonably acceptable to the Indenture Trustee to the effect that such Indenture Supplement is for one of the purposes set forth in clauses (i) through (x) below, the Issuer and the Indenture Trustee, at any time and from time to time, may enter into one or more Indenture Supplements for any of the following purposes:
(i)to add to the covenants of the Issuer in this Master Indenture for the benefit of the Noteholders of all Notes then Outstanding, or to surrender any right or power conferred upon the Issuer in this Master Indenture;
(ii)to cure any ambiguity, to correct or supplement any provision in this Master Indenture which may be inconsistent with any other provision in this Master Indenture;
(iii)to correct or amplify the description of any property at any time subject to the Encumbrance of this Master Indenture, or to better assure, convey and confirm unto the Indenture Trustee any property subject or required to be subject to the Encumbrance of this Master Indenture, or to subject additional property to the Encumbrance of this Master Indenture;
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(iv)to add additional conditions, limitations and restrictions thereafter to be observed by the Issuer;
(v)if required, to convey, transfer, assign, mortgage or pledge any additional property to or with the Indenture Trustee;
(vi)to evidence the succession of the Indenture Trustee;
(vii)to amend or modify the provisions of the Master Indenture or any other Operative Agreement relating to the timing of movement of monies received, provided, that the effect of such movement does not change the Available Collections Amount available on any Payment Date and the Issuer obtains Rating Agency Confirmation;
(viii)any amendment or modification of an immaterial nature necessary to facilitate the issuing of Additional Notes (all in a manner consistent with the provisions of the Master Indenture);
(ix)to conform to the description of any Operative Agreement in the offering circular for the Equipment Notes; or
(x)to effect any amendment, modification or replacement to the Account Administration Agreement and/or the Account Collateral Agent, provided, that the effect of such amendment, modification or replacement does not change the Available Collections Amount available on any Payment Date and the Issuer obtains Rating Agency Confirmation.
(b)No Indenture Supplement shall be entered into under this Section 9.01 unless (i) each Rating Agency shall have received prior written notice thereof and, except as set forth in the proviso at the end of this sentence, the Issuer shall have obtained a Rating Agency Confirmation in respect thereof; provided, that no such Rating Agency Confirmation shall be required if such Indenture Supplement shall have been entered into by the Indenture Trustee at the Direction of a Requisite Majority; and (ii) if applicable, any consent required by Section 10.03 shall have been obtained.
Section 9.02Supplemental Indentures with the Consent of Noteholders.
(a)With the consent evidenced by a Direction of a Requisite Majority, and, if applicable, subject to obtaining any consent required by Section 10.03, the Issuer and the Indenture Trustee may enter into an Indenture Supplement for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Master Indenture or the Notes or of modifying in any manner the rights of the Noteholders under this Master Indenture or the Notes; provided, however, that no such Indenture Supplement shall, without the prior written Direction of the Noteholders of such Outstanding Notes adversely affected thereby and the Direction of a Requisite Majority for the Notes then Outstanding:
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(i)reduce the principal amount of any Notes or the rate of interest thereon, change the priority of any payments required pursuant to this Master Indenture or amend or otherwise modify the Flow of Funds except as permitted pursuant to Section 9.02(b), or the date on which, or the amount of which, or the place of payment where, or the coin or currency in which, any Notes or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Final Maturity Date thereof;
(ii)reduce the percentage of Noteholders of Outstanding Notes required for (x) the consent required for delivery of any Indenture Supplement to this Master Indenture, (y) the consent required for any waiver of compliance with certain provisions of this Master Indenture or certain Events of Default hereunder and their consequences as provided for in this Master Indenture or (z) the consent required to waive any payment default on the Notes;
(iii)modify any provision relating to this Master Indenture which specifies that such provision cannot be modified or waived without the Direction of the Noteholder of such Outstanding Notes affected thereby;
(iv)modify or alter the definition of the term “Requisite Majority” (including, without limitation, the percentages therein);
(v)impair or adversely affect the Collateral except as otherwise permitted in this Master Indenture;
(vi)modify or alter the provisions of this Master Indenture relating to mandatory prepayments;
(vii)permit the creation of any Encumbrance ranking prior to or on a parity with the Encumbrance of this Master Indenture with respect to any part of the Collateral or terminate the Encumbrance of this Master Indenture on any property at any time subject hereto or deprive any Noteholder of the security afforded by the Encumbrance of this Master Indenture except as permitted in accordance with this Master Indenture; or
(viii)modify any of the provisions of this Master Indenture or a Series Supplement in such a manner as to potentially reduce the amount of, or delay the timing of, any payments of interest or principal due on any Notes.
Prior to the execution of any Indenture Supplement issued pursuant to this Section 9.02, the Issuer shall provide a written notice to each Rating Agency setting forth in general terms the substance of any such Indenture Supplement.
(b)Notwithstanding the foregoing provisions of this Section 9.02, the Issuer, the Indenture Trustee and, by its acceptance of any Notes, each Noteholder, hereby irrevocably agrees that, in connection with the appointment and engagement of
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a Successor Servicer and as contemplated in the last paragraph of the Granting Clauses hereof, the Indenture Trustee acting at the Direction of the Requisite Majority acting in its sole discretion shall have the right, without the consent of the Issuer, any Noteholder or any other Person, to increase the Servicing Fee and/or pay to the Servicer an incentive fee, add the payment of such amounts to and/or change the priority of distribution of such amounts in, the Flow of Funds and amend this Master Indenture or a Series Supplement to the extent necessary to effectuate the foregoing.
(c)Promptly after the execution by the Issuer and the Indenture Trustee of any Indenture Supplement pursuant to this Section, the Issuer shall send to the Administrator, the Indenture Trustee and each Rating Agency, a notice setting forth in general terms the substance of such Indenture Supplement, together with a copy of the text of such Indenture Supplement. Any failure of the Issuer to provide such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such Indenture Supplement.
Section 9.03Execution of Indenture Supplements and Series Supplements. In executing, or accepting the additional terms created by, an Indenture Supplement or Series Supplement permitted by this Article IX or the modification thereby of the terms created by this Master Indenture, the Indenture Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such Indenture Supplement or Series Supplement is authorized or permitted by this Master Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such Indenture Supplement or Series Supplement which affects the Indenture Trustee’s own rights, duties or immunities under this Master Indenture and any Series Supplement or otherwise.
Section 9.04Effect of Indenture Supplements. Upon the execution of any Indenture Supplement under this Article IX, this Master Indenture shall be modified in accordance therewith, and such Indenture Supplement shall form a part of this Master Indenture for all purposes.
Section 9.05Reference in Notes to Supplements. Equipment Notes authenticated and delivered after the execution of any Indenture Supplement or Series Supplement pursuant to this Article IX may, and shall if required by the Issuer, bear a notation in form as to any matter provided for in such Indenture Supplement or Series Supplement. If the Issuer shall so determine, new Notes so modified as to conform may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
Section 9.06Issuance of Additional Series of Notes. The Issuer may from time to time issue one or more Additional Series of Notes pursuant to a Series Supplement executed by the Issuer and the Indenture Trustee that will specify the Principal Terms of such Series. The terms of such Series Supplement may modify or amend the terms of this Master Indenture solely as applied to such Series. No Series Supplement may amend this Master Indenture (or a related Series Supplement) as applicable to any
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other Series except with the consent of the Control Party for each other Series and in accordance with the terms of this Master Indenture. A Series Supplement may contain special or additional voting requirements that apply with respect to amendments or waivers of or under such Series Supplement, or to matters arising under this Master Indenture as to which Noteholders of such Series are entitled to vote, provided that no such requirement may be inconsistent with the requirements of this Master Indenture. Any Additional Series (or Class thereof) will be issued as a term Series or Class, i.e., it will have a predetermined, fixed or scheduled principal amortization established in the related Series Supplement. Additional Series may be issued for the purpose of (i) financing the Issuer’s acquisition of additional Railcars and Leases, (ii) refinancing one or more preexisting Series, Class or sub-class of a Class (in each case, in whole and not in part), (iii) raising additional funds for the Issuer or (iv) a combination of the foregoing purposes.
The ability of the Issuer to issue such Additional Series and the obligation of the Indenture Trustee to authenticate and deliver the Notes of such Additional Series and to execute and deliver the related Series Supplement is subject to the satisfaction of the following conditions:
(a)the Issuer shall have given the Indenture Trustee, the Servicer, each Rating Agency and each other party entitled thereto pursuant to the relevant Series Supplement notice of the Additional Series and the proposed Series Issuance Date;
(b)the Issuer shall have obtained Rating Agency Confirmation with respect to such Additional Series and each other Series of Equipment Notes then Outstanding;
(c)no Servicer Termination Event, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the issuance of such Additional Series, and no Servicer Termination Event, Event of Default or Early Amortization Event would occur as a result of closing the transactions associated with the issuance of such Additional Series;
(d)no Additional Interest shall be due and owing, and all scheduled amortization payments on all Outstanding Series of Notes due at or before the date of the issuance of such Additional Series shall have been made as of the date of issuance of such Additional Series;
(e)the issuance of such Additional Series shall not result in noncompliance with the Concentration Limits;
(f)the Issuer shall have delivered to the Indenture Trustee, on or prior to the date of issuance of such Additional Series:
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(i)a copy of the Series Supplement for such Additional Series, duly executed by the Issuer;
(ii)a copy of the Assigned Agreements for such Additional Series, duly executed by each party thereto;
(iii)one or more officer’s certificates, duly executed by a responsible officer and providing for such certifications and other matters as the Indenture Trustee shall reasonably require; and
(iv)one or more Opinions of Counsel, duly executed by counsel to the Issuer and providing for such matters as the Noteholders (or applicable Initial Purchasers) shall reasonably require, including without limitation, an opinion from tax counsel to the Issuer (which opinion is based on and subject to only customary representations, assumptions and qualifications for an opinion of this nature and may rely, as to factual matters, on a certificate of a Person whose duties relate to the matters being certified) to the effect that, for U.S. federal income tax purposes, (a) such action will not cause any Note of any Outstanding Series or Class for which an Opinion of Counsel to the Issuer was rendered in connection with the original issuance of such Note to the effect that such Note is treated as debt for U.S. federal income tax purposes, to be characterized as other than debt, and (b) such action will not cause the Issuer to be treated as an association (or publicly traded partnership) taxable as a corporation; and
(g)the Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate to the effect that all of the conditions specified in clauses (a) through (f), as applicable, above have been satisfied.
Upon satisfaction of the above conditions, the Indenture Trustee shall execute the Series Supplement and authenticate and deliver the Notes of such Additional Series.
ARTICLE X

MODIFICATION AND WAIVER
Section 10.01Modification and Waiver with Consent of Noteholders. In the event that the Indenture Trustee receives a request for its consent to an amendment, modification or waiver under this Master Indenture, the Notes or any Operative Agreement relating to the Notes, the Indenture Trustee shall send a notice of such proposed amendment, modification or waiver to each Noteholder asking whether or not to consent to such amendment, modification or waiver if such Noteholder’s consent is required pursuant to this Master Indenture; provided that any amendment, modification or waiver of the provisions described in Section 9.02 is not permitted without the consent of each Noteholder whose consent is required thereby; provided further, however, that any Event of Default may be waived in accordance with Section 4.04.
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The foregoing, however, shall not prevent the Issuer from amending any Lease of a Railcar, provided that such amendment is otherwise permitted by this Master Indenture and the Servicing Agreement.
It shall not be necessary for the consent of the Noteholders under this Section 10.01 to approve the particular form of any proposed amendment, modification or waiver, but it shall be sufficient if such consent approves the substance thereof. Any such amendment, modification or waiver approved by the Direction of a Requisite Majority (and, if applicable, as to which Rating Agency Confirmation is given) will be binding on all Noteholders.
The Issuer shall give each Rating Agency prior notice of any amendment under this Section 10.01 and any amendments of its constitutive documents by the Issuer, and, after an amendment under this Section 10.01 becomes effective, the Issuer shall send to the Noteholders and each Rating Agency a notice briefly describing such amendment. Any failure of the Issuer to send such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment.
After an amendment, modification or waiver under this Section 10.01 becomes effective, it shall bind every Noteholder, whether or not notation thereof is made on any Note held by such Noteholder.
Section 10.02Modification Without Consent of Noteholders. Subject to Section 9.01 hereof, the Indenture Trustee may agree, without the consent of any Noteholder, to (i) any modification (other than those referred to in Section 10.01) of any provision of any Operative Agreement or of the relevant Notes to correct a manifest error or an error which is of a formal, minor or technical nature, (ii) effect any amendment, modification or replacement to the Account Administration Agreement and/or the Account Collateral Agent, provided, that the effect of such amendment, modification or replacement does not change the Available Collections Amount available on any Payment Date and the Issuer obtains Rating Agency Confirmation, (iii) conform to the description of any Operative Agreement or related provisions in the offering circular for the Equipment Notes or (iv) any modification (other than those referred to in Section 10.01) to any provision of any Operative Agreement related to any amendment or modification set forth in any Indenture Supplement entered into pursuant to Section 9.01; provided, that with respect to any Liquidity Facility any amendments relating to customary LIBOR fallback provisions for the LIBOR replacement event, shall not require the consent of the Indenture Trustee. Any such modification shall be notified to the Noteholders as soon as practicable thereafter and shall be binding on all the Noteholders.
Section 10.03Consent of Servicer, Hedge Providers and Liquidity Facility Providers. No amendment, modification or waiver to this Master Indenture or a Series Supplement shall be permitted if such amendment, modification or waiver could reasonably be expected to violate Section 11.7(a) of the Servicing Agreement. No amendment, modification or waiver to this Master Indenture or a Series Supplement
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shall be permitted if such amendment, modification or waiver could reasonably be expected to materially adversely affect a Hedge Provider without the prior written consent of such Hedge Provider. No amendment, modification or waiver to this Master Indenture or a Series Supplement shall be permitted if such amendment, modification or waiver could reasonably be expected to materially adversely affect a Liquidity Facility Provider without the prior written consent of such Liquidity Facility Provider; provided that if a Liquidity Facility Provider is in default under one or more of its Liquidity Facility Documents, then (i) Sections 3.11 and 3.15 are the only sections of this Master Indenture that shall be considered for purposes of this Section 10.03 with respect to such Liquidity Facility Provider’s consent rights and (ii) the only Sections of a Series Supplement, if any, that shall be considered for purposes of this Section 10.03 with respect to such Liquidity Facility Provider’s consent rights must be expressly identified as such in that Series Supplement.
Section 10.04Subordination and Priority of Payments. The subordination provisions contained in the Flow of Funds and Article XI may not be amended or modified without the consent of each Noteholder of the Outstanding Notes. In no event shall the provisions set forth in the Flow of Funds relating to the priority of the Service Provider Fees and Operating Expenses be amended or modified. The foregoing sentences in each case are subject to the provisions of Section 9.02(b).
Section 10.05Execution of Amendments by Indenture Trustee. In executing, or accepting the additional obligations created by, any amendment, modification or waiver to this Master Indenture permitted by this Article X or Section 3.16(b) or the modifications thereby of the obligations created by this Master Indenture, the Notes or any Operative Agreement related to the Notes, the Indenture Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment, modification or waiver is authorized or permitted by this Master Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such amendment, modification or waiver which affects the Indenture Trustee’s own rights, duties or immunities under this Master Indenture or otherwise.
ARTICLE XI

SUBORDINATION
Section 11.01Subordination.
(a)Each Noteholder and Service Provider agrees that its claims against the Issuer for payment of amounts are subordinate to any claims ranking in priority thereto as set forth in the Flow of Funds hereof, including any post-petition interest (each such prior claim, a “Senior Claim”), which subordination shall continue until the holder of such Senior Claim (a “Senior Claimant”), or the Indenture Trustee on its behalf, has received the full cash amount of such Senior Claim. Each Noteholder and Service Provider is also obligated to hold for the benefit of the Senior Claimant any
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amounts received by such Noteholder or Service Provider, as the case may be, which, under the terms of this Master Indenture, should have been paid to or on behalf of the Senior Claimant and to pay over such amounts to the Indenture Trustee for application as provided in the Flow of Funds. Each Noteholder also agrees to execute and deliver such instruments and documents, and take all further action, that a Senior Claimant may reasonably request in order to effectuate the above. Each Noteholder’s right with respect to any Collateral shall be subordinated to the rights of Senior Claimants. Amounts deposited in any Indenture Account for a defeasance of the Notes or for an Optional Redemption of the Notes will not be subject to the foregoing subordination provisions. For the avoidance of doubt, this paragraph is not intended to limit the rights of Hedge Providers to receive payments other than in accordance with the Flow of Funds pursuant to Sections 3.08(c), 3.11(c), 3.14 and 3.16 of this Master Indenture.
(b)If any Senior Claimant receives any payment in respect of any Senior Claim which is subsequently invalidated, declared preferential, set aside and/or required to be repaid to a trustee, receiver or other party, then, to the extent such payment is so invalidated, declared preferential, set aside and/or required to be repaid, such Senior Claim shall be revived and continue in full force and effect, and shall be entitled to the benefits of this Article XI, all as if such payment had not been received.
(c)Each Noteholder, by its acceptance of any Notes, and each other payee pursuant to the Flow of Funds, by entering into the Operative Agreement to which it is a party, authorizes and expressly directs the Indenture Trustee on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article XI, and appoints the Indenture Trustee its attorney-in-fact for such purposes, including, in the event of any dissolution, winding up, liquidation or reorganization of the Issuer (whether in bankruptcy, insolvency, receivership, reorganization or similar proceedings or upon an assignment for the benefit of creditors or otherwise) any actions tending towards liquidation of the property and assets of the Issuer or the filing of a claim for the unpaid balance of its Notes in the form required in those proceedings.
(d)No right of any holder of any Senior Claim to enforce the subordination of any subordinated claim shall be impaired by an act or failure to act by the Issuer or the Indenture Trustee or by any failure by either the Issuer or the Indenture Trustee to comply with this Master Indenture, unless such failure shall materially prejudice the rights of the subordinated claimant.
(e)Each Noteholder, by accepting any Notes, and each other payee pursuant to the Flow of Funds, by entering into the Operative Agreement to which it is a party, acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder of any Senior Claim, whether such Senior Claim was created or acquired before or after the issuance of such holder’s claim, to acquire and continue to hold such Senior Claim and such
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holder of any Senior Claim shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold such Senior Claim.
(f)The Noteholders of each Series and each Class thereof shall have the right to receive, to the extent necessary to make the required payments with respect to the Notes of such Series and each Class thereof at the times and in the amounts specified herein and in any related Series Supplement, (i) the portion of Collections allocable to Noteholders of such Series and each Class thereof pursuant to this Master Indenture and any related Series Supplement, (ii) funds on deposit in the Liquidity Reserve Account allocated in accordance with the terms of this Master Indenture and any related Series Supplement and (iii) funds on deposit in any Series Account for such Series and each Class thereof. Each Noteholder, by acceptance of its Notes, (x) acknowledges and agrees that except as expressly provided herein and in any related Series Supplement, the Noteholders of a Series shall not have any interest in any Series Account for the benefit of any other Series (to the extent amounts were deposited therein in accordance with the Operative Agreements), and (y) ratifies and confirms the terms of this Master Indenture and the Operative Agreements executed in connection with such Noteholder’s Series. With respect to each Collection Period, Collections on deposit in the Collections Account will be allocated to each Series and each Class thereof then Outstanding in accordance with the Flow of Funds and any related Series Supplements.
ARTICLE XII

DISCHARGE OF INDENTURE; DEFEASANCE
Section 12.01Discharge of Liability on the Notes; Defeasance.
(a)When (i) the Issuer delivers to the Indenture Trustee all Outstanding Notes (other than Notes replaced pursuant to Section 2.08) for cancellation or (ii) all Outstanding Notes have become due and payable, whether at maturity or as a result of the mailing of a Redemption Notice pursuant to Section 3.16(a) and the Issuer irrevocably deposits in the Redemption/Defeasance Account funds sufficient to pay at maturity, or upon Optional Redemption of, all Outstanding Notes, including interest thereon to maturity or the Redemption Date (other than Notes replaced pursuant to Section 2.08), and if in either case the Issuer pays all other sums payable hereunder by the Issuer including any premium, then this Master Indenture shall, subject to Section 12.01(c), cease to be of further effect. The Indenture Trustee shall acknowledge satisfaction and discharge of this Master Indenture on demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel, at the cost and expense of the Issuer, to the effect that any conditions precedent to a discharge of this Master Indenture have been met.
(b)Subject to Sections 12.01(c) and 12.02, the Issuer at any time may terminate (i) all its obligations under the Notes or any Class or Series of Notes and this Master Indenture (the “legal defeasance” option) or (ii) its obligations under
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Sections 5.02, 5.03, 5.04 and 4.01 (other than with respect to a failure to comply with Sections 4.01(a), 4.01(b), 4.01(e) (only with respect to the Issuer) and 4.01(f) (only with respect to the Issuer)) (the “covenant defeasance” option). The Issuer may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment of any Notes subject to such legal defeasance may not be accelerated because of an Event of Default. If the Issuer exercises its covenant defeasance option, payment of the Notes may not be accelerated because of an Event of Default (other than with respect to a failure to comply with Section 5.02(j), 4.01(a), 4.01(b), 4.01(e) and 4.01(f)).
Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the Indenture Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.
(c)Notwithstanding clauses (a) and (b) above, the Issuer’s obligations in Sections 2.01, 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 5.02(j), Article VI, Sections 8.01, 12.04, 12.05 and 12.06 shall survive until all the Equipment Notes have been paid in full. Thereafter, the Issuer’s obligations in Sections 8.01, 12.04, 12.05 and 13.07 shall survive.
Section 12.02Conditions to Defeasance. The Issuer may exercise its legal defeasance option or its covenant defeasance option only if:
(a)The Issuer irrevocably deposits in trust in the Redemption/Defeasance Account any one or any combination of (A) money, (B) obligations of, and supported by the full faith and credit of, the U.S. Government (“U.S. Government Obligations”) or (C) obligations of corporate issuers (“Corporate Obligations”) (provided that any such Corporate Obligations are rated AA+, or the equivalent, or higher, by each Rating Agency at such time and shall not have a maturity of longer than three (3) years from the date of defeasance) for the payment of all principal, premium, if any, and interest to maturity or redemption on the Class (or Series) of Notes being defeased;
(b)the Issuer delivers to the Indenture Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations or the Corporate Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and interest when due and interest to maturity or redemption on the Class (or Series) of the Notes being defeased;
(c)91 days pass after the deposit described in clause (a) above is made and during the 91-day period no Event of Default specified in Section 4.01(f) or (g) with respect to the Issuer occurs which is continuing at the end of the period;
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(d)the deposit described in clause (a) above does not constitute a default under any other agreement binding on the Issuer;
(e)the Issuer delivers to the Indenture Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit described in clause (a) does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended;
(f)the Issuer shall have delivered to the Indenture Trustee an Opinion of Counsel to the effect that the Noteholders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(g)if the related Notes are then listed on any securities exchange, the Issuer delivers to the Indenture Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Notes to be delisted;
(h)the Issuer has obtained a Rating Agency Confirmation relating to the defeasance contemplated by this Section 12.02;
(i)the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes as contemplated by this Article XII have been complied with; and
(j)the Issuer shall only defease the Notes of a Class in their entirety, not partially.
Section 12.03Application of Trust Money. The Indenture Trustee shall hold in the Redemption/Defeasance Account money, U.S. Government Obligations or Corporate Obligations deposited with it pursuant to this Article XII. It shall apply the deposited money and the money from U.S. Government Obligations or Corporate Obligations in accordance with this Master Indenture and the applicable Series Supplements to the payment of principal, premium, if any, and interest on the applicable Notes. Money and securities so held in trust are not subject to Article X.
Section 12.04Repayment to the Issuer. The Indenture Trustee shall promptly turn over to the Issuer upon request any excess money or securities held by it at any time. Subject to any applicable abandoned property law, the Indenture Trustee shall pay to the Issuer upon written request any money held by it for the payment of principal or interest that remains unclaimed for two (2) years and, thereafter, Noteholders entitled to the money must look to the Issuer for payment as general creditors. Such unclaimed funds shall remain uninvested and in no event shall the Indenture Trustee be liable for interest on such unclaimed funds.
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Section 12.05Indemnity for Government Obligations and Corporate Obligations. The Issuer shall pay and shall indemnify the Indenture Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or Corporate Obligations, or the principal and interest received on such U.S. Government Obligations or Corporate Obligations.
Section 12.06Reinstatement. If the Indenture Trustee is unable to apply any money or U.S. Government Obligations or Corporate Obligations in accordance with this Article XII (and the applicable Series Supplements) by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Master Indenture and the applicable Series Supplements and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article XII until such time as the Indenture Trustee is permitted to apply all such money, U.S. Government Obligations or Corporate Obligations in accordance with this Article XII, the applicable Series Supplements and the applicable Notes; provided, however, that, if the Issuer has made any payment of interest on or principal of any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Noteholders of such Notes to receive such payment from the money, U.S. Government Obligations or Corporate Obligations held by the Indenture Trustee.
ARTICLE XIII

MISCELLANEOUS
Section 13.01Right of Indenture Trustee to Perform. If the Issuer for any reason fails to observe or punctually to perform any of its obligations to the Indenture Trustee, whether under this Master Indenture and any Series Supplement or any of the other Operative Agreements or otherwise, the Indenture Trustee shall have power (but shall have no obligation), on behalf of or in the name of the Issuer or otherwise, to perform such obligations and to take any steps which the Indenture Trustee may, in its absolute discretion, consider appropriate with a view to remedying, or mitigating the consequences of, such failure by the Issuer; provided that no exercise or failure to exercise this power by the Indenture Trustee shall in any way prejudice the Indenture Trustee’s other rights under this Master Indenture and any Series Supplement or any of the other Operative Agreements.
Section 13.02Waiver. Any waiver by any party of any provision of this Master Indenture or any right, remedy or option hereunder shall only prevent and estop such party from thereafter enforcing such provision, right, remedy or option if such waiver is given in writing and only as to the specific instance and for the specific purpose for which such waiver was given. The failure or refusal of any party hereto to insist in any one or more instances, or in a course of dealing, upon the strict performance of any of the terms or provisions of this Master Indenture by any party hereto or the partial exercise of any right, remedy or option hereunder shall not be
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construed as a waiver or relinquishment of any such term or provision, but the same shall continue in full force and effect. No failure on the part of the Indenture Trustee to exercise, and no delay on its part in exercising, any right or remedy under this Master Indenture and any Series Supplement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Master Indenture are cumulative and not exclusive of any rights or remedies provided by law.
Section 13.03Severability. In the event that any provision of this Master Indenture or the application thereof to any party hereto or to any circumstance or in any jurisdiction governing this Master Indenture shall, to any extent, be invalid or unenforceable under any applicable statute, regulation or rule of law, then such provision shall be deemed inoperative to the extent that it is invalid or unenforceable and the remainder of this Master Indenture, and the application of any such invalid or unenforceable provision to the parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not be affected thereby nor shall the same affect the validity or enforceability of this Master Indenture. The parties hereto further agree that the holding by any court of competent jurisdiction that any remedy pursued by the Indenture Trustee hereunder is unavailable or unenforceable shall not affect in any way the ability of the Indenture Trustee to pursue any other remedy available to it.
Section 13.04Notices. All notices, demands, certificates, requests, directions, instructions and communications hereunder (“Notices”) shall be in writing and shall be effective (a) upon receipt when sent through the mails, registered or certified mail, return receipt requested, postage prepaid, with such receipt to be effective the date of delivery indicated on the return receipt, or (b) one Business Day after delivery to an overnight courier, or (c) on the date personally delivered to an authorized officer of the party to which sent, or (d) on the Business Day transmitted by legible telecopier transmission with a confirmation of receipt by the addressee thereof, or (e) if by electronic mail, upon written confirmation of receipt by the addressee thereof, in all cases addressed to the recipient as follows:
if to the Issuer, Administrator or Servicer to:

Trinity Industries Leasing Company
14221 N. Dallas Parkway, Suite 1100
Dallas, TX 75254
Attention: TILC Capital Markets Group
E-mail: TILC.CapitalMarkets.notices@trin.net
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With a copy to:

Trinity Industries Leasing Company
14221 N. Dallas Parkway, Suite 1100
Dallas, TX 75254
Attention: Legal Department
if to the Indenture Trustee, the Note Registrar or the Paying Agent, to:

U.S. Bank National Association
425 Walnut Street, 6th Floor
CN-OH-W6CT
Cincinnati, OH 45202
Attention: Global Structured Finance
Facsimile: (513) 632-5511
E-mail: Christopher.mckim@usbank.com
Re: Trinity Rail Leasing 2021 LLC

if to a Hedge Provider, to:
the address specified in the applicable Series Supplement
if to a Liquidity Facility Provider, to:
the address specified in the applicable Series Supplement
if to a Rating Agency, to:

the address specified in the applicable Series Supplement
or addressed to any party at such other address as such party shall hereafter furnish to the other parties by written notice as provided above.
Section 13.05Assignments. This Master Indenture shall be a continuing obligation of the Issuer and shall (i) be binding upon the Issuer and its successors and assigns and (ii) inure to the benefit of and be enforceable by the Indenture Trustee, and by its successors, transferees and assigns. The Issuer may not assign any of its obligations under this Master Indenture or any Series Supplement, or delegate any of its duties hereunder.
Section 13.06Currency Conversion.
(a)If any amount is received or recovered by the Administrator, the Servicer or the Indenture Trustee in respect of this Master Indenture or any part thereof
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(whether as a result of the enforcement of the security created under this Master Indenture and any Series Supplement or pursuant to this Master Indenture or any judgment or order of any court or in the liquidation or dissolution of the Issuer or by way of damages for any breach of any obligation to make any payment under or in respect of the Issuer’s obligations hereunder or any part thereof or otherwise) in a currency (the “Received Currency”) other than the currency in which such amount was expressed to be payable (the “Agreed Currency”), then the amount in the Received Currency actually received or recovered by the Indenture Trustee shall, to the fullest extent permitted by Applicable Law, only constitute a discharge to the Issuer to the extent of the amount of the Agreed Currency which the Administrator, the Servicer or the Indenture Trustee was or would have been able in accordance with its normal procedures to purchase on the date of actual receipt or recovery (or, if that is not practicable, on the next date on which it is so practicable), and, if the amount of the Agreed Currency which the Administrator, the Servicer or the Indenture Trustee is or would have been so able to purchase is less than the amount of the Agreed Currency which was originally payable by the Issuer, the Issuer shall pay to the Administrator, the Servicer or the Indenture Trustee such amount as the Administrator, Servicer or the Indenture Trustee shall determine to be necessary to indemnify such Person against any loss sustained by it as a result (including the cost of making any such purchase and any premiums, commissions or other charges paid or incurred in connection therewith) and so that such indemnity, to the fullest extent permitted by Applicable Law, (i) shall constitute a separate and independent obligation of the Issuer distinct from its obligation to discharge the amount which was originally payable by the Issuer and (ii) shall give rise to a separate and independent cause of action and apply irrespective of any indulgence granted by the Administrator, the Servicer or the Indenture Trustee and continue in full force and effect notwithstanding any judgment, order, claim or proof for a liquidated amount in respect of the amount originally payable by the Issuer or any judgment or order and no proof or evidence of any actual loss shall be required.
(b)For the purpose of or pending the discharge of any of the moneys and liabilities hereby secured the Administrator and the Servicer may convert any moneys received, recovered or realized by the Administrator or the Servicer, as the case may be, under this Master Indenture and any Series Supplement (including the proceeds of any previous conversion under this Section 13.06) from their existing currency of denomination into the currency of denomination (if different) of such moneys and liabilities and any conversion from one currency to another for the purposes of any of the foregoing shall be made at the Indenture Trustee’s then prevailing spot selling rate at its office by which such conversion is made. If not otherwise required to be applied in the Received Currency, the Administrator or the Servicer, as the case may be, acting on behalf of the Indenture Trustee, shall promptly convert any moneys in such Received Currency other than Dollars into Dollars. Each previous reference in this Section to a currency extends to funds of that currency and funds of one currency may be converted into different funds of the same currency.
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Section 13.07Application to Court. The Indenture Trustee may at any time after the service of a Default Notice apply to any court of competent jurisdiction for an order that the terms of this Master Indenture be carried into execution under the direction of such court and for the appointment of a receiver of the Collateral or any part thereof and for any other order in relation to the administration of this Master Indenture as the Requisite Majority shall deem fit and it may assent to or approve any application to any court of competent jurisdiction made at the instigation of any of the Noteholders and shall be indemnified by the Issuer against all costs, charges and expenses incurred by it in relation to any such application or proceedings.
Section 13.08Governing Law. THIS MASTER INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
Section 13.09Jurisdiction.
(a)Each of the parties hereto agrees that the United States federal and New York State courts located in The City of New York shall have jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Master Indenture and, for such purposes, submits to the jurisdiction of such courts. Each of the parties hereto waives any objection which it might now or hereafter have to the United States federal or New York State courts located in The City of New York being nominated as the forum to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Master Indenture and agrees not to claim that any such court is not a convenient or appropriate forum.
(b)The submission to the jurisdiction of the courts referred to in Section 13.09(a) shall not (and shall not be construed so as to) limit the right of the Indenture Trustee to take proceedings against the Issuer in any other court of competent jurisdiction nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
(c)Each of the parties hereto hereby consents generally in respect of any legal action or proceeding arising out of or in connection with this Master Indenture to the giving of any relief or the issue of any process in connection with such action or proceeding, including the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in such action or proceeding.
Section 13.10Jury Trial. EACH PARTY TO THIS AGREEMENT, AND EACH NOTEHOLDER BY ITS ACCEPTANCE OF ITS NOTES, HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
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CAUSE OF ACTION ARISING HEREUNDER OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 13.11Counterparts; Electronic Signatures. This Master Indenture may be executed in two or more counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument. Each of the parties agree that this Master Indenture, each Series Supplement and any other documents to be delivered in connection herewith and therewith (other than the Notes) may be electronically signed, that any digital or electronic signatures (including pdf, facsimile or electronically imaged signatures provided by DocuSign or any other digital signature provider as specified in writing to the Indenture Trustee) appearing on this Master Indenture, each Series Supplement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability and admissibility, and that delivery of any such electronic signature to, or a signed copy of, this Master Indenture, each Series Supplement and such other documents may be made by facsimile, email or other electronic transmission.
Section 13.12No Petition in Bankruptcy. The Indenture Trustee agrees, and each Noteholder shall be deemed to have agreed, that, prior to the date which is one year and one day after the payment in full of all Outstanding Notes, neither the Indenture Trustee nor any Noteholder shall institute against, or join any other Person in instituting against, the Issuer an action in bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceeding under the laws of the United States or any state of the United States.
Section 13.13Table of Contents, Headings, Etc. The Table of Contents and headings of the articles and sections of this Master Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms and provisions hereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Master Indenture to be duly executed, all as of the date first written above.
TRINITY RAIL LEASING 2021 LLC
By: Trinity Industries Leasing Company,
its manager
By: _/s/ Sara E. McCoy________________
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director

U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee (and as securities intermediary as described herein)
By: /s/ Chris McKim    
Name: Chris McKim
Title: Vice President


S-1


Annex A to Master Indenture: Defined Terms
“144A Book-Entry Note” means an Equipment Note sold in reliance on Rule 144A, represented by a single permanent global note in fully registered form, without coupons, the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for a 144A Book-Entry Note inscribed thereon and with such changes therein and such additional information as may be specified in the Series Supplement pursuant to which such Equipment Note is issued.
“AAR” means the Association of American Railroads or any successor thereto.
“Account Administration Agreement” means the Customer Collections Account Administration Agreement, dated as of November 12, 2003, by and among the various beneficiary parties thereto from time to time, TILC and WTC (and as the same may be amended, supplemented, restated, amended and restated or modified from time to time) or any replacement account administration agreement with the Account Collateral Agent or a replacement Account Collateral Agent.
“Account Collateral Agent” means the “Account Collateral Agent” under and as defined in an Account Administration Agreement, initially WTC.
“Accounts” means all “accounts” as defined in Article 9 of the UCC, whether due or to become due, whether or not the right of payment has been earned by performance, and whether now owned or hereafter acquired or arising in the future, including Accounts Receivable from Affiliates of the Issuer.
“Accounts Receivable” means all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including, without limitation, all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Property, together with all of the Issuer’s right, title and interest, if any, in any goods or other property giving rise to such right to payment, including any rights to stoppage in transit, replevin, reclamation and resales, and all related security interests, Encumbrances and pledges, whether voluntary or involuntary, in each case whether now existing or owned or hereafter arising or acquired, and all Supporting Obligations related to the foregoing and all Accounts Receivable Records.
“Accounts Receivable Records” means (a) all original copies of all documents, instruments or other writings or electronic records or other records evidencing the Accounts Receivable, (b) all books, correspondence, credit or other files, records, ledger sheets or cards, invoices, and other papers relating to Accounts Receivable, including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Accounts Receivable, whether in the possession or under the control of the Issuer or any computer bureau or agent from time to time acting for the Issuer or otherwise, (c) all
ANNEX A
Page 1


evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or lenders, and certificates, acknowledgments, or other writings, including, without limitation, lien search reports, from filing or other registration officers, (d) all credit information, reports and memoranda relating thereto and (e) all other written, electronic or other non-written forms of information related in any way to the foregoing or any Accounts Receivable.
“Act” has the meaning, with respect to any Noteholder, given to such term in Section 1.04(a).
“Additional Interest” means, with respect to a Series of Notes or any Class thereof, interest at the Stated Rate on the aggregate amount of any unpaid interest that is due and payable on the Notes of such Series and Class (including any unpaid portion of the Stated Interest Amount and any Additional Interest Amount).
“Additional Interest Amount” means, with respect to any Class of Notes in any Series of Notes, an amount equal to the Additional Interest on the aggregate amount of unpaid interest (including any unpaid portion of any Stated Interest Amounts and any Additional Interest Amount) that was due and payable on the Notes of such Series or Class on any prior Payment Date.
“Additional Liquidity Facility” has the meaning given to such term in Section 3.15.
“Additional Liquidity Facility Provider” means the issuer or provider of an Additional Liquidity Facility.
“Additional Notes” means the Notes evidencing any Additional Series issued by the Issuer from time to time subsequent to the Initial Closing Date.
“Additional Railcar” means each Railcar acquired by the Issuer (other than the Railcars identified on a schedule to the Series Supplement for the Initial Notes) subsequent to the Initial Closing Date in accordance with the conditions set forth in Section 5.03(b).
“Additional Series” means any Series issued by Issuer subsequent to the Initial Closing Date pursuant to a Series Supplement.
“Adjusted Value” means, for any individual Railcar as of any date of determination, (a) the Initial Appraised Value of such Railcar, adjusted downward as of each Payment Date after the Delivery Date of such Railcar due to depreciation at the greater of (i) the amount of depreciation determined based on straight line depreciation from the date of manufacture using an assumed 35-year useful life (25 years for autoracks) to a “10%” assumed residual/salvage value and (ii) the amount of depreciation that would be calculated under any subsequent depreciation methodology
ANNEX A
Page 2


or general practice of marking down asset values attributable to a change in Trinity’s corporate policy and practice after the Initial Closing Date (a “Depreciation Change”), plus (b) the cost of any Optional Modification or Required Modification, to the extent that Trinity on its books of account would properly add such cost to the book value of such Railcar in accordance with U.S. GAAP, with the amount of such cost so added pursuant to this clause (b) to be depreciated in the same manner following its incurrence and addition to book. Following the receipt of all proceeds and third party payments associated with a casualty event with respect to a Railcar, its Adjusted Value will be deemed to be zero.
“Administrative Services Agreement” means the Administrative Services Agreement, dated as of the Initial Closing Date, between the Administrator and the Issuer, or any replacement administrative services agreement with a replacement Administrator.
“Administrator” means TILC, in its capacity as administrator under the Administrative Services Agreement, including its successors in interest and permitted assigns, until another Person shall have become the administrator under such agreement, after which “Administrator” shall mean such other Person.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with, such Person or is a director or officer of such Person; “control” of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting Stock, by contract or otherwise.
“Affirmative Issuer Action” means, a Permitted Discretionary Sale by the Issuer or a Replacement Exchange by the Issuer or the re-leasing of a Portfolio Railcar by the Issuer following the termination of or failure to renew the pre-existing Lease on such Portfolio Railcar.
“After-Tax Basis” means, with respect to any payment due to any Person, the amount of such payment supplemented by a further payment or payments so that the sum of all such payments, after reduction for all Taxes payable by such Person by reason of the receipt or accrual of such payments, shall be equal to the payment due to such Person.
“Aggregate Adjusted Borrowing Value” means, as of any date of determination, an amount equal to the sum of (i) the Adjusted Values (measured as of the last day of the month immediately preceding such date of determination) of all Portfolio Railcars, and (ii) the amounts on deposit in any Prefunding Accounts and the Optional Reinvestment Account as of such date.
“Agreed Currency” has the meaning given to such term in Section 13.06(a).
ANNEX A
Page 3


“Allocable Note Balance” means, with respect to any Railcar, an amount equal to the product of the Railcar Advance Rate and the Adjusted Value of such Railcar.
“Allocable Subordinated Note Balance” means, with respect to any Railcar and Subordinated Notes, an amount equal to the product of the Subordinated Railcar Advance Rate and the Adjusted Value of such Railcar.
“Annual Report” has the meaning given to such term in Section 2.13(a).
“Applicable Law” means all applicable laws, rules, statutes, ordinances, regulations and orders of Governmental Authorities, including, without limitation, the applicable laws, rules, regulations and orders of any Railroad Authority.
“Applicable Person” means any Noteholder or beneficial owner of a beneficial interest in a Subject Note, and each agent or representative of or intermediary with respect to a holder of such a beneficial interest.
“Appraisal” means a desktop appraisal of a Railcar, i.e. an appraisal without a physical inspection of a Railcar, dated within ninety (90) days before the applicable Delivery Date of such Railcar by the applicable Appraiser to determine the Initial Appraised Value of such Railcar, and, if such Delivery Date is not a Closing Date, considering substantially similar factors in such determination as were considered in the Appraisal delivered in connection with the most recent Closing Date (or, if obtaining an Appraisal addressing such factors is no longer commercially feasible as a result of changes in market practice of railcar appraisers, then an appraisal that considers such factors in the valuation determination as are then commercially feasible to obtain in light of railcar appraisal market practices at that time).
“Appraiser” means RailSolutions, Inc., Edward S. Biggs III, LLC (d/b/a Biggs Appraisal) or such other independent railcar appraiser that is of comparable standing and reputation as determined in the good faith judgment of the Servicer.
“Asset Transfer Agreement” means any asset transfer agreement between the Issuer and one or more sellers of Railcars, in form and substance satisfactory to the Issuer and the applicable seller or sellers party thereto. The initial Asset Transfer Agreement is the Purchase and Contribution Agreement, dated as of the Initial Closing Date, among the Issuer, TILC and TRLWT.
“Assigned Agreements” has the meaning given to such term in the Granting Clauses hereunder.
“Assignment and Assumption” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Authorized Agent” means, with respect to the Notes of any Series, any authorized Paying Agent or Note Registrar for the Notes of such Series.
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“Authorized Representative” of any entity means the person or persons authorized to act on behalf of such entity.
“Available Collections Amount” means, for any Payment Date, the amount of Collections in the Collections Account as of the Determination Date for such Payment Date, plus or minus, as applicable, the aggregate amount of all transfers to be made to or from the Collections Account pursuant to the Master Indenture, a Hedge Agreement or a Liquidity Facility during the period beginning on such Determination Date and ending on such Payment Date (including transfers from the Liquidity Reserve Account, the Expense Account or the Optional Reinvestment Account pursuant to Sections 3.04 and 3.05, respectively, and including any Servicer Advance), but at any time prior to an Event of Default, excluding any Net Disposition Proceeds deposited in the Collections Account (other than any amounts transferred to the Optional Reinvestment Account pursuant to Section 3.05).
“Balance” means, with respect to any Indenture Account as of any date, the sum of the cash deposits in such Indenture Account and the value of any Permitted Investments held in such Indenture Account as of such date, as determined in accordance with Section 1.02(k).
“Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code, 11 U.S.C. § 101 et. seq.
“Benefit Plan” has the meaning given to such term in Section 2.11(g)(i).
“Bill of Sale” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Book-Entry Notes” means the Regulation S Book-Entry Notes and the 144A Book-Entry Notes.
“Book LTV Ratio” has the meaning given to such term in paragraph 4(e) of the Granting Clause of this Master Indenture.
“Books and Records” has the meaning given to such term in Section 5.04(y)(i).
“Books and Records Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York, Dallas, Texas, St. Paul, Minnesota or in the location of the corporate trust office of the Indenture Trustee administering this Master Indenture (currently Cincinnati, Ohio for U.S. Bank as Indenture Trustee) are authorized by law to close.
“Capital Contribution” has the meaning given to such term in Section 3.17.
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“Cede” means Cede & Co., as nominee for DTC.
“Chattel Paper” means all “chattel paper” as defined in the UCC.
“Class” means with respect to a Series, one or more classes of Notes of such Series (which class or classes shall be specified by the related Series Supplement) having the same rights to payment as all other Notes of such class.
“Class Account” has the meaning given to such term in Section 3.01(a).
“Class A Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class B Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class B Purchase Right” has the meaning given to such term in Section 4.11.
“Class B Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.11.
“Class B Purchasers” has the meaning given to such term in Section 4.11.
“Class C Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class C Purchase Right” has the meaning given to such term in Section 4.12.
“Class C Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.12.
“Class C Purchasers” has the meaning given to such term in Section 4.12.
“Class R Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Clearing Agency Participant” means a Person who has an account with Clearstream.
“Clearstream” means Clearstream Banking, a French société anonyme.
“Closing Date” means in the case of (i) the Initial Notes, the Initial Closing Date, and (ii) with any other Series (or Class thereof), the date identified as such in the related Series Supplement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” has the meaning given to such term in the Granting Clause.
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“Collateral Liquidation Notice” means a written Direction from the Requisite Majority directing the Indenture Trustee to sell the Portfolio Railcars in accordance with Section 4.02(b).
“Collection Period” means, with respect to each Payment Date other than the first Payment Date, the period commencing on the first day of the calendar month immediately preceding the month in which such Payment Date occurs and ending on the last day of such calendar month and, in the case of the first Payment Date in respect of a Series, the period commencing on the Series Issuance Date (or the Initial Closing Date with respect to the Initial Notes issued hereunder) for such Series and ending on the last day of the first full calendar month following such Series Issuance Date or the Initial Closing Date, as applicable.
“Collections” for any period means all amounts (without duplication) received by the Issuer or by any Person (including without limitation, the Account Collateral Agent) receiving such amounts on behalf of the Issuer, including, but not limited to, (i) Lease Payments, (ii) amounts received in respect of claims for damages or in respect of any breach of contract for nonpayment of the foregoing, (iii) the Net Disposition Proceeds of any Railcar Disposition (except for any portion of such Net Disposition Proceeds that the Issuer shall direct to be deposited into the Optional Reinvestment Account), (iv) amounts transferred from the Optional Reinvestment Account either at Issuer’s election or due to a failure to acquire or fund an Additional Railcar within the applicable Replacement Period; (v) investment income, if any, on all amounts on deposit in the Indenture Accounts, (vi) any proceeds or other payments received under the Relative Documents, (vii) any portion of the Net Proceeds of the issuance of Notes deposited in the Collections Account on a Closing Date, (viii) net payments received by the Issuer under Hedge Agreements (other than payments made as, or as proceeds of, collateral provided by a Hedge Provider pursuant to a credit support annex), (ix) the proceeds of any cash Capital Contributions and (x) any other amounts received by the Issuer, but not including any funds to be applied in connection with an Optional Redemption and other amounts required to be paid over to any third party pursuant to any Relative Document.
“Collections Account” has the meaning given to such term in Section 3.01(a).
“Company Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Comparable Lease” means, with respect to Qualifying Replacement Railcars, a Lease that (a) will generate at least the same amount of average monthly lease revenue as the Reference Sold Railcars of a similar railcar type or, if there are no such Reference Sold Railcars of a similar railcar type, Portfolio Railcars of a similar railcar type or, if there are no such Portfolio Railcars of a similar type, such railcars of a similar type as the Administrator may reasonably determine, and (b) has a remaining Lease term at least equal to two-thirds of the average remaining Lease term of the Reference Sold Railcars.
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“Concentration Limits” means, collectively the Mexico Concentration Restriction, the Customer Concentration Limitation and the Industry Concentration Limitation.
“Control Party” means in respect of any Series of Notes, unless otherwise provided in the Series Supplement related to such Series, Noteholders representing more than fifty percent (50%) of the then aggregate Outstanding Principal Balance of (a) initially, all Outstanding Class A Equipment Notes of such Series, (b) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Class A Equipment Notes of such Series, all Outstanding Class B Equipment Notes of such Series, (c) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Class A Equipment Notes and Class B Equipment Notes of such Series, all Outstanding Class C Equipment Notes of such Series and (d) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Equipment Notes of such Series, all Outstanding Subordinated Notes.
“Convey” or “Conveyance” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Corporate Obligations” has the meaning given to such term in Section 12.02(a).
“Corporate Trust Office” means, with respect to the Indenture Trustee, the office of such trustee in the city at which at any particular time this Master Indenture shall be principally administered and, with respect to the Indenture Trustee on the Initial Closing Date, shall be, for the purpose of exchanging Notes, U.S. Bank National Association, 111 Fillmore East, St. Paul, Minnesota 55107, Attention: Bondholder Services, and for all other purposes shall be U.S. Bank National Association, 425 Walnut Street, 6th Floor, CN-OH-W6CT, Cincinnati, Ohio 45202, Attention: Global Structured Finance, Facsimile No: (513) 632-5511, or at any other time at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders and the Issuer.
“Credit Bankrupt” means a Person which (i) is subject to any bankruptcy or insolvency proceeding, (ii) is not paying its debts generally as they become due or (iii) has had a custodian (as defined in the Bankruptcy Code) take charge of all or substantially all of the property of such Person.
“Cure Amount” has the meaning given to such term in clause (c) of the Early Amortization Event definition.
“Cure Right” has the meaning given to such term in clause (c) of the Early Amortization Event definition.
“Current LTV Ratio” has the meaning given to such term in paragraph 4(e) of the Granting Clause of this Master Indenture.
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“Customer Concentration Limitation” means, except in the case of any Permitted Excess Concentration, that, (a) as of any date of determination, the Adjusted Value of Portfolio Railcars leased to an individual Lessee that has a rating of at least “BBB-” or “Baa3” from S&P or Moody’s, respectively (or leased to an Affiliate of such a Person), in the aggregate, does not exceed on such date seventeen and one-half percent (17.5%) of the aggregate Adjusted Value of the Portfolio Railcars on such date, and (b) except as contemplated in clause (a) above, as of any date of determination, the Adjusted Value of Portfolio Railcars leased to an individual Lessee (or leased to an Affiliate thereof), regardless of rating, in the aggregate, does not exceed on such date fifteen percent (15%) of the aggregate Adjusted Value of the Portfolio Railcars on such date. The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Customer Concentration Limitation (i.e., to increase either or both of the percentages to be greater than the applicable percentage or percentages that are then in effect pursuant to this definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Customer Payment Account” means the “Customer Payments Account” described in an Account Administration Agreement.
“Customer Payments” has the meaning given to such term in an Account Administration Agreement.
“Debt Service Coverage Ratio” means, with respect to any Payment Date, commencing on the seventh Payment Date after the Initial Closing Date, the ratio of (i) the sum of the Collections (excluding (a) net payments owed to the Issuer for the payment of any Hedge Termination Value and (b) any Capital Contributions other than (A) any Capital Contributions made to fund Required Modifications expenses for such Collection Periods and (B) any Capital Contributions made to fund Cure Amounts during such Collection Periods) deposited into the Collections Account for each of the six consecutive Collection Periods ending on the last day of the calendar month immediately preceding such Payment Date, minus the sum of (x) the amount actually deposited into the Expense Account during such six preceding Collection Periods, (y) the Service Provider Fees for each of such six preceding Collection Periods and (z) the amount actually deposited into the Liquidity Reserve Account during such six preceding Collection Periods, to (ii) the sum of (xx) the aggregate amount of principal payments with respect to the six consecutive Payment Dates ending on and including such Payment Date required in order to reduce the aggregate Outstanding Principal Balance of the Equipment Notes of each Series on such Payment Date to an amount equal to the Scheduled Targeted Principal Balance for such Series for such Payment Date, plus (yy) the aggregate amount of interest on the Outstanding Equipment Notes of each Series (excluding Additional Interest) payable on the six consecutive Payment Dates ending on and including such Payment Date, plus (or minus) (zz) the net payments owed by the Issuer (or owed to the Issuer) under any Hedge Agreements
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(other than for the payment of any Hedge Termination Value) in respect of the six consecutive Payment Dates ending on and including such Payment Date.
“Default” means a condition, event or act which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Default Notice” has the meaning given to such term in Section 4.02(a).
“Definitive Note” means a note issued in definitive form pursuant to the terms and conditions of this Master Indenture and the related Series Supplement, the form of which shall be substantially in the form of the applicable Form of Note for such Note, with the legends required by Section 2.02 for a Definitive Note inscribed thereon and with such changes therein and such additional information as may be specified in the Series Supplement pursuant to which such Note is issued.
“Delivery Date” means each date on which any Railcar, together with any Lease related thereto and all Related Assets (as defined, if applicable, in the applicable Asset Transfer Agreement), is transferred to the Issuer by the applicable Seller thereof and includes, without limitation, the Initial Closing Date and each other date (in respect of Additional Railcars) on which any such transfer occurs.
“Delivery Schedule” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Depreciation Change” has the meaning given to such term in the definition of Adjusted Value.
“Designated Severability Clause” means, with respect to a Mixed Rider, language to the effect that the Mixed Rider shall constitute one or more separate and severable leases, with each such lease being comprised of railcars owned by a single person or entity, and each such lease shall incorporate the terms of the related master lease agreement and shall be separate and severable from each other lease made pursuant to such rider and from any other railcars or riders relating to such master lease agreement.
“Determination Date” means, with respect to a Payment Date, the last day of the calendar month prior to the month in which such Payment Date occurs.
“Direct Participants” means securities brokers and dealers, banks, trust companies and clearing corporations, and may include certain other organizations which access the DTC system directly.
“Direction” has the meaning given to such term in Section 1.04(c).
“Dollars” or “$” means the lawful currency of the United States of America.
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“DTC” means The Depository Trust Company, a limited purpose trust company organized under the New York Banking Law, its nominees and their successors.
“DTC Participants” means Euroclear, Clearstream or other Persons who have accounts with DTC.
“Early Amortization Event” means, as of any Payment Date, the existence of any one or more of the following events or conditions, unless it has been cured (or unless it has been waived by the Indenture Trustee at the Direction of a Requisite Majority):
(a)    a Servicer Termination Event of the type described in Section 8.5(e)(ii) of the Servicing Agreement;
(b)    the number of Portfolio Railcars that are subject to a Lease is less than 80% of the total number of Portfolio Railcars; or
(c)    as of any Payment Date on or after the seventh (7th) Payment Date following the Closing Date, the Debt Service Coverage Ratio is less than 1.05; for the avoidance of doubt, an Early Amortization Event pursuant to this clause (c) shall terminate on the next upcoming Payment Date as of which the Debt Service Coverage Ratio at least equals 1.05, provided, that the Issuer shall have the right (the “Cure Right”), at any time until the date that is thirty (30) days after such Payment Date, on no more than two occasions in any twelve (12) consecutive calendar months (including and preceding the month in which such Payment Date occurs) to receive Capital Contributions in an amount no greater than that needed to cause the Debt Service Coverage Ratio to be at least equal to 1.05 but no greater than 1.075 immediately after giving effect to such contribution by adding such Capital Contribution (the “Cure Amount”) to the numerator in the calculation of the Debt Service Coverage Ratio. For the avoidance of doubt, no Early Amortization Event will occur or be deemed to have occurred, if after giving effect to the contribution of the Cure Amount as set forth above, the Debt Service Coverage Ratio is at least equal to 1.05).
“Eligibility Requirements” has the meaning given to such term in Section 2.03(b).
“Eligible Green Assets” means the Portfolio Railcars which meet the criteria set forth in the TILC Green Bond Program.
“Eligible Hedge Provider” means a bank or other entity that satisfies the standards of the Rating Agency rating the applicable Floating Rate Notes in order to maintain the then-current rating of such Floating Rate Notes.
“Eligible Institution” means (a) any depository institution or trust company, with a capital and surplus of not less than $250,000,000, whose long-term unsecured debt
ANNEX A
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rating from each Rating Agency of not less than A (or the equivalent) and whose deposits are insured by the Federal Deposit Insurance Corporation or (b) a federally or state chartered depository institution, with a capital and surplus of not less than $250,000,000, subject to regulations regarding fiduciary funds on deposit substantially similar to 12 C.F.R. § 9.10(b), that in each case has a long-term unsecured debt rating of not less than A (or the equivalent) or a short-term unsecured debt rating of A-1 (or the equivalent) from each Rating Agency.
“Eligible Railcar” means any Railcar that, on its applicable Delivery Date, is ready and available to operate as of such date (or will be upon routine maintenance) in commercial service and otherwise perform the functions for which it was designed.
“Encumbrance” means any mortgage, pledge, lien, encumbrance, charge or security interest, including, without limitation, any conditional sale, any sale without recourse against the sellers, or any agreement to give any security interest over or with respect to any assets of any applicable Person.
“Equipment Note” means any one of the promissory notes (other than Subordinated Notes) executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Series Supplement.
“Equipment Note Purchase Agreement”, with respect to a Series of Equipment Notes, has the meaning given to such term in the related Series Supplement.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default” means the existence of any of the events or conditions described in Section 4.01.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Date” means the date on which interests in each Regulation S Temporary Book-Entry Note will be exchangeable for interests in an Unrestricted Book-Entry Note, which shall be the later of (i) the fortieth (40th) day after the later of (a) the applicable Closing Date and (b) the completion of the distribution of the related Series of Notes and (ii) the date on which the requisite certifications are due to and provided to the Indenture Trustee.
“Excluded Expenses” means (a) salary, bonuses, company cars and benefits of the Servicer’s employees, (b) office, office equipment and office rental expenses of the Servicer, (c) telecommunications expenses of the Servicer, (d) taxes on the income, receipts, profits, gains, net worth or franchise of the Servicer and payroll, employment
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and social security taxes for employees of the Servicer, (e) any and all financing costs (including interest and fees) relating to any indebtedness of the Servicer, and (f) all other overhead expenses of the Servicer.
“Existing Lease” means a Lease in effect on a Closing Date in respect of any Railcar being conveyed to the Issuer on such date, together with any renewals thereof.
“Expense Account” has the meaning given to such term in Section 3.01(a).
“FATCA” means Sections 1471 through 1474 of the Code as of the date hereof (or any amended or successor versions of Sections 1471 through 1474 of the Code that is substantively comparable), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements (including any foreign legislation, rules, regulations, guidance notes or similar guidance adopted pursuant to or implementing such agreements) entered into in connection with such Sections.
“Final Maturity Date” means, with respect to a Series (or Class thereof) of Notes, the date identified as such in the related Series Supplement.
“Final Principal Payment Shortfall” has the meaning given to such term in Section 3.10(d)(v).
“Fixed Rate Note” means any Note having a Stated Rate that is a fixed percentage.
“Floating Rate Note” means any Note having a Stated Rate that varies with a specified index, as specified in the Series Supplement under which such Floating Rate Note is issued.
“Flow of Funds” means the provisions of the Master Indenture applicable to the allocation and distribution of the Available Collections Amount set forth in Sections 3.11(a), (b) or (c), as applicable.
“Form of Full Service Lease” means the form of master railcar lease agreement attached as Exhibit D-1 and D-2 to the Master Indenture.
“Form of Net Lease” means the form of master railcar lease agreement attached as Exhibit E-1 and E-2 to the Master Indenture.
“Form of Note” means, with respect to a Note, the form of such Note attached as an exhibit to the Series Supplement under which such Note is issued.
“FRA” means the Federal Railroad Administration or any successor thereto.
“Full Service Leases” means Leases pursuant to which the Lessor thereunder is responsible for maintenance and repair of the Portfolio Railcars that are subject thereto.
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“Future Lease” means, in respect of any Railcar, a Lease of such Railcar entered into by the Issuer at any time after the Delivery Date for such Railcar and that is not an Existing Lease.
“General Intangibles” (a) means all “general intangibles” as defined in Article 9 of the UCC and (b) includes, without limitation, all Assigned Agreements, all interest rate or currency protection or hedging arrangements, all tax refunds, claims for tax refunds and tax credits, all licenses, permits, approvals, consents, variances, certifications, concessions and authorizations, all Intellectual Property, all Payment Intangibles (in each case, regardless of whether characterized as general intangibles under the UCC), limited liability company or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee and the properties and rights associated therewith), franchises, and any letter of credit, guarantee, claim, security interest or other security held by or granted to the Issuer to secure payment by an account debtor of any of the Accounts Receivable including the Issuer’s rights in all security agreements, leases and other contracts securing or otherwise relating to any Account Receivable and all warranties, rights and claims against third parties including carriers and shippers and otherwise.
“Governmental Authority” shall mean any government, legislative body, regulatory authority, court, administrative agency or commission or other governmental agency or instrumentality (or any officer or representative thereof), domestic, foreign or international, of competent jurisdiction, including the European Union.
“Green Bond Report” has the meaning given to such term in Section 1(p) of the Administrative Services Agreement.
“Hedge Agreement” means an interest rate derivative agreement (including, without limitation, a cap, collar, floor, swap or other derivative transaction) between the Issuer and the Hedge Provider named therein.
“Hedge Collateral” has the meaning given to such term in Section 3.16(g).
“Hedge Collateral Account” has the meaning given to such term in Section 3.16(g).
“Hedge Partial Termination Value” means, with respect to a partial termination of a Hedge Agreement, a termination payment due either from the Issuer to the applicable Hedge Provider or from the applicable Hedge Provider to the Issuer in relation to such termination pursuant to the terms of such Hedge Agreement. Such termination payment may be subject to netting or offsetting claims, and the final amount so owed will be the Hedge Partial Termination Value.
“Hedge Provider” means a Person that is a party to a Hedge Agreement with the Issuer.
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“Hedge Termination Value” means, with respect to a Hedge Agreement, a termination payment due either from the Issuer to the applicable Hedge Provider or from the applicable Hedge Provider to the Issuer in relation to such termination pursuant to the terms of such Hedge Agreement. Such termination payment may be subject to offsetting claims, and the final amount so owed by the Issuer or to the Issuer (if any) will be the Hedge Termination Value.
“Hedging Requirement” has the meaning given to such term in Section 3.16(b).
“Indebtedness” means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of purchasing such property or service or taking delivery and title thereto or the completion of such services, and payment deferrals arranged primarily as a method of raising funds to acquire such property or service, (v) all obligations of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed) that is required to be classified and accounted for as a capital lease obligation under U.S. GAAP, (vi) all Indebtedness (as defined in clauses (i) through (v) of this paragraph) of other Persons secured by a lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, (vii) all indebtedness of such Person under Liquidity Facilities, (viii) net payments due and payable by such Person under Hedge Agreements, and (ix) all Indebtedness (as defined in clauses (i) through (viii) of this paragraph) of other Persons guaranteed by such Person.
“Indemnified Expenses” has the meaning given to such term in Section 5 of the Administrative Services Agreement.
“Indenture Account” means each of the Collections Account, the Expense Account, the Optional Reinvestment Account, each Series Account, any Class Account, the Liquidity Reserve Account, any Liquidity Facility Collateral Account, any Redemption/Defeasance Account, any Prefunding Account and any sub-accounts and ledger and sub-ledger accounts maintained with respect to any of the foregoing in accordance with this Master Indenture (as well as any other account, if any, established with the Indenture Trustee in accordance with Section 3.01(a) after the Initial Closing Date).
“Indenture Investment” means any obligation issued or guaranteed by the United States of America or any of its agencies for the payment of which the full faith and credit of the United States of America is pledged and with a final maturity on or before the date which is the earlier of (a) ninety days from the date of purchase thereof and (b) the first Payment Date occurring after the date of purchase thereof.
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“Indenture Supplement” means a supplement to this Master Indenture, other than a Series Supplement.
“Indenture Trustee” has the meaning given to such term in the preamble hereof, and any successor indenture trustee appointed in accordance with the terms hereof.
“Indenture Trustee Fees” means the compensation and expenses (including attorney’s fees and expenses and indemnification payments) payable to the Indenture Trustee for its services under this Master Indenture and the other Relative Documents to which it is a party (if any).
“Industry Concentration Limitation” means that, as of any date of determination, the Adjusted Value of Portfolio Railcars leased to Lessees for primary use in the industries identified below, are in excess of the percentages set forth below for each such industry (expressed as a percentage of the aggregate Adjusted Value of all Portfolio Railcars on such date):
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Industry
Concentration Limit
(% of Adjusted Value of Portfolio Railcars)
Aggregates 15%
Automotive 15%
Biofuels 20%
Cement 15%
Chlor Alkali 15%
Construction Material 15%
Crude Oil 15%
Coal 7.5%
DDG/Feed 15%
Fertilizer 15%
Food and Other Agriculture 15%
Frac Sand 7.5%
Grain 15%
Grain Mill Products 20%
Lumber 15%
Metal Products 15%
NGL 15%
Other 15%
Other Chemical 15%
Paper 15%
Petrochemicals 15%
Plastics 20%
Refined Products 20%
Steel/Iron 15%
Sulfur Products 15%

The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Industry Concentration Limitation (i.e., to increase either or both of the percentages to be greater than the applicable percentage or percentages that are then in effect pursuant to this definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Inflation Factor” means, with respect to any calendar year, the quotient (expressed as a decimal) obtained by dividing (i) the PPI published in respect of the most recently ended calendar year (the “New Year”), by (ii) the PPI published in respect of the calendar year immediately preceding the New Year, and subtracting 1.00 from the resulting quotient. “PPI” for purposes hereof, means, with respect to any calendar year or any period during any calendar year, the “Producer Price Index” applicable to the
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capital equipment sector as published by the Bureau of Labor Statistics for the United States Department of Labor. If the PPI shall be converted to a different standard reference base or otherwise revised after the date hereof, PPI shall thereafter be calculated with use of such new or revised statistical measure published by the Bureau of Labor Statistics or, if not so published, as may be published by any other reputable publisher of such price index reasonably selected by the Administrator. The Inflation Factor may be a negative number.
“Initial Appraised Value” means, with respect to a Railcar, the appraised value of such Railcar as determined in the Appraisal delivered in connection with the Conveyance thereof to the Issuer; provided that, with respect to the Initial Notes, the Initial Appraised Value is the arithmetic mean of the two Appraisals of the Portfolio Railcars (as of the Initial Closing Date), obtained from RailSolutions, Inc. and Edward S. Biggs III, LLC (d/b/a Biggs Appraisal) prior to the Initial Closing Date.
“Initial Closing Date” means June 30, 2021.
“Initial Liquidity Facility” means the Revolving Credit Agreement entered into between the Issuer and the Initial Liquidity Facility Provider on the Initial Closing Date.
“Initial Liquidity Facility Provider” means the “Liquidity Facility Provider” under the Series Supplement for the Initial Notes.
“Initial Notes” means the Notes designated “Series 2021-1” issued on the Initial Closing Date.
“Initial Purchaser” with respect to a Series of Equipment Notes, has the meaning given to such term in the related Series Supplement.
“Insolvency Appointee” has the meaning given to such term in Section 5.04(h).
“Inspection Representative” has the meaning given to such term in Section 5.04(y)(i).
“Inspections” has the meaning given to such term in Section 5.04(y)(i).
“Institutional Accredited Investor” means a Person that is an “accredited investor” as that term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D.
“Instruments” means all “instruments” as defined in Article 9 of the UCC.
“Insurance Agreement” means the Insurance Agreement, dated as of the Initial Closing Date, between the Insurance Manager and the Issuer, or any replacement insurance agreement with a replacement Insurance Manager.
“Insurance Manager” means TILC, in its capacity as insurance manager under the Insurance Agreement, including its successors in interest and permitted assigns,
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until another Person shall have become the insurance manager under such agreement, after which “Insurance Manager” shall mean such other Person.
“Insurance Manager Default” has the meaning given to such term in Section 6.2 of the Insurance Agreement.
“Intellectual Property” means all past, present and future: trade secrets and other proprietary information; trademarks, service marks, business names, Internet domain names, designs, logos, trade dress, slogans, indicia and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including copyrights for computer programs and software) and copyright registrations or applications for registrations which have heretofore been or may hereafter be applied for or issued throughout the world and all tangible property embodying the copyrights; unpatented inventions (whether or not patentable); patent applications and patents; industrial designs, industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, source codes, object codes and other physical manifestations, embodiments or incorporations of any of the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; and all common law and other rights throughout the world in and to any or all of the foregoing.
“Interchange Rules” means the interchange rules or supplements thereto of the AAR, as the same may be in effect from time to time.
“Interest Accrual Period” means, except as may be otherwise provided in the related Series Supplement for a Series of Notes: (a) with respect to Fixed Rate Notes, the period beginning on the 19th day of a calendar month and ending on (but excluding) the 19th day of the next calendar month, and (b) with respect to Floating Rate Notes, the period beginning on each Payment Date and ending on (but excluding) the next succeeding Payment Date, except that the initial Interest Accrual Period for a Series (x) with respect to Fixed Rate Notes, shall begin on the Closing Date for such Series and end on (but exclude) the 19th day of the next calendar month, and (y) with respect to Floating Rate Notes, shall begin on the Closing Date for such Series and end on (but exclude) the first Payment Date occurring after such Closing Date.
“Investment Letter” means a letter substantially in the form of Exhibit B attached hereto.
“Investment Property” means all “investment property” as defined in Article 9 of the UCC.
“Involuntary Railcar Disposition” has the meaning given to such term in Section 5.03(a)(ii).
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“Issuance Expenses” means the aggregate amount of all subscription discounts, brokerage commissions, placement fees, resale fees, structuring fees, out of pocket transaction expenses and other similar fees, commissions and expenses relating to the issuance of a Series of the Notes.
“Issuer” has the meaning given to such term in the preamble.
“Issuer Documents” means this Master Indenture, each Series Supplement, the Servicing Agreement, the Account Administration Agreement, the Administrative Services Agreement, the Insurance Agreement, the Asset Transfer Agreements, any Bill of Sale, any Assignment and Assumption, the Hedge Agreements, the Liquidity Facility Documents, the Marks Company Trust Agreement, any Marks Company Trust Supplement, the Marks Servicing Agreement and any SUBI Certificate related to the Portfolio Railcars.
“Issuer Expense” means, for any Payment Date, any of the following costs directly incurred by the Issuer or incurred by any Service Provider in its performance of its obligations under the applicable Service Provider Agreement that are, in each case, reasonable in amount and are fairly attributable to the Issuer and its permitted activities during the related Collection Period: (i) accounting and audit expenses, and tax preparation, filing and audit expenses; (ii) premiums for liability, casualty, fidelity, directors and officers and other insurance; (iii) directors’ fees and expenses, including fees and expenses of the special member of the Issuer; (iv) other professional fees; (v) taxes (including personal or other property taxes and all sales, value added, use and similar taxes) other than taxes that are incurred by such Service Provider in respect of its own income or assets, and other than taxes that constitute Ordinary Course Expenses; (vi) taxes imposed in respect of any and all issuances of equity interests, stock exchange listing fees, registrar and transfer expenses and trustee’s fees with respect to any outstanding securities of the Issuer; and (vii) surveillance fees assessed by the Rating Agencies, including any such fees incurred by the Issuer in connection with its compliance with its covenant set forth in Section 5.02(o).
“Issuer Group Member” means any of the Issuer, Trinity, TILC or any Affiliate of any of them.
“KBRA” means Kroll Bond Rating Agency, LLC.
“Later Sold Note” has the meaning given to such term in Section 2.19.
“Law” means (a) any constitution, treaty, statute, law, regulation, order, rule or directive of any Governmental Authority, and (b) any judicial or administrative interpretation or application of, or decision under, any of the foregoing.
“Lease” means, with respect to a Railcar, a lease, car contract or other agreement granting permission for the use of such Railcar, constituting an operating lease thereon.
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“Lease Payments” means all lease rental payments and other amounts payable by or on behalf of a Lessee under a Lease related to a Portfolio Railcar, including payments credited due to application of security deposits and amounts recovered under other supporting obligations, if any, in respect of such Lease.
“Lessee” means each Person who is the lessee under a Lease of a Railcar.
“Lessor” means, with respect to any Lease, the lessor under such Lease (being, in respect of Leases of Portfolio Railcars, the Issuer as assignee lessor under the related Assignment and Assumption).
“LIBOR”, with respect to a Series, has the meaning given to such term in the related Series Supplement, if applicable.
“Liquidity Facility” means the Initial Liquidity Facility and/or Additional Liquidity Facility, as the context may require. A Liquidity Facility may be in the form of a letter of credit, liquidity loan agreement, revolving credit agreement, collateralized or uncollateralized guarantee, financial guaranty policy, guaranteed investment contract, total return swap, or some other form of standby liquidity.
“Liquidity Facility Available Amount” with respect to a Liquidity Facility, means the amount available to be drawn under such Liquidity Facility.
“Liquidity Facility Collateral Account” has the meaning given to such term in Section 3.01(a).
“Liquidity Facility Documents” has the meaning given to such term in Section 3.15.
“Liquidity Facility Provider” means the Initial Liquidity Facility Provider and/or any Additional Liquidity Facility Provider, as the context may require.
“Liquidity Reserve Account” has the meaning given to such term in Section 3.01(a).
“Liquidity Reserve Target Amount” means, (A) as of the Initial Closing Date, zero and (B) thereafter, on each Payment Date, an amount equal to the product of (x) nine times (y) the sum of (i) the Stated Interest Amount due on all Outstanding Class A Equipment Notes and Class B Equipment Notes on such Payment Date (for purposes of this calculation, interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months), plus (or minus) (ii) the net payments owed by the Issuer (or owed to the Issuer) under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) in respect of the Interest Accrual Period ending on such Payment Date (for purposes of this calculation, such payments shall be calculated on the basis of a 360-day year consisting of twelve 30-day months for both amounts payable and receivable).
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“LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of the Issuer, dated on or about the Initial Closing Date.
“Mark” means the identification mark of a railcar registered with the AAR, consisting of letters registered in the name of the owner of the railcar mark and the car number.
“Marks Company” means Trinity Marks Company, a Delaware statutory trust.
“Marks Company Trust Agreement” means the Amended and Restated Marks Company Trust Agreement, dated as of May 17, 2001, between TILC and WTC.
“Marks Company Trust Supplement” means (a) with respect to the Initial Notes, the Marks Company Trust Supplement 2021-4, and (b) with respect to any Additional Series, the related supplement to the Marks Company Trust Agreement, substantially in the form of the Marks Company Trust Supplement.
“Marks Company Trust Supplement 2021-4” means the Supplement 2021-4 to the Marks Company Trust Agreement, dated as of the Initial Closing Date, between TILC and WTC.
“Marks Company Trustee” has the meaning given to such term in the Marks Company Trust Agreement.
“Marks Servicing Agreement” means the Management and Servicing Agreement, dated as of May 17, 2001, between TILC and the Marks Company.
“Master Indenture” has the meaning given to such term in the preamble hereto.
“Maximum Hedging Amount” has the meaning given to such term in Section 3.16(b).
“Member” means the sole equity member of the Issuer, i.e. TILC, or any successor or assignee thereto, in such capacity.
“Merger Transaction” has the meaning given to such term in Section 5.02(g).
“Mexican Lessee” is defined in the definition of Permitted Lessee.
“Mexico Concentration Restriction” means the condition described in the proviso to the definition of Permitted Lessee. The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Mexico Concentration Restriction (i.e., to increase the percentage set forth in the definition of Permitted Lessee to be greater than the applicable percentage that is then in effect pursuant to such definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
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“Minimum Hedging Amount” has the meaning given to such term in Section 3.16(b).
“Mixed Rider” means a Rider that covers not only Railcars owned by the Issuer but also railcars owned by one or more other owners.
“Modification Agreement” means any agreement between the Issuer (or the Servicer acting on its behalf) and a Supplier for the purchase and/or installation of a Required Modification or an Optional Modification.
“Money” means “money” as defined in the UCC.
“Monthly Report” has the meaning given to such term in Section 2.13(a).
“Moody’s” means Moody’s Investors Service, Inc. or, if such corporation or its successor shall for any reason no longer perform the functions of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally recognized rating agency designated by the Issuer.
“National Reload Pool” means the autorack pool operated by TTX Company for the shared use of bi-level and tri-level autorack Railcars that have been supplied for such pool by participating Class 1 railroads.
“Net Disposition Proceeds” means, with respect to any Railcar Disposition, (a) in respect of a Railcar Disposition consisting of a sale, the aggregate amount of cash received by or on behalf of the seller in connection with such transaction after deducting therefrom (without duplication) (i) reasonable and customary brokerage commissions and other similar fees and commissions, and (ii) the amount of taxes payable in connection with or as a result of such transaction, in each case to the extent, but only to the extent, that amounts so deducted are, at the time of receipt of such cash, actually paid to a Person that is not an Affiliate of the seller and are properly attributable to such transaction or to the asset that is the subject thereof, and (b) in respect of a Railcar Disposition that is not a sale, payments received in respect of any applicable casualty or condemnation, including insurance proceeds, condemnation awards and payments received from Lessees or other third parties.
“Net Leases” means Leases pursuant to which a Lessee thereunder is responsible for maintenance and repair of the Portfolio Railcars leased thereunder.
“Net Proceeds” means, with respect to the issuance of the Notes, the aggregate amount of cash received by the Issuer in connection with such issuance after deducting therefrom (without duplication) all Issuance Expenses; provided that such amount shall not be less than zero.
“Net Stated Interest Shortfall” has the meaning given to such term in Section 3.04(c).
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“Non-Severable Mixed Rider” means a Mixed Rider that does not contain a Designated Severability Clause.
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
“Noteholder” means (i) with respect to any Book-Entry Note, the beneficial owner of such Note and (ii) with respect to any other Note, any Person in whose name a Note is registered from time to time in the Register for such Notes.
“Noteholder Tax Identification Information” means properly completed and signed tax certifications (generally, in the case of U.S. federal income tax, IRS Form W-9 (or applicable successor form) in the case of a person that is a “United States Person” within the meaning of Section 7701(a)(30) of the Code or the appropriate IRS Form W-8 (or applicable successor form) in the case of a person that is not a “United States Person” within the meaning of Section 7701(a)(30) of the Code) and other information requested from time to time by the Issuer, the Indenture Trustee or any Paying Agent sufficient (i) to determine the applicability of, or to determine the amount of, U.S. withholding tax under the Code (including back-up withholding and withholding imposed pursuant to FATCA) or other Applicable Law and (ii) for the Issuer, the Indenture Trustee and each Paying Agent to satisfy their information reporting obligations under the Code (including under FATCA) or other Applicable Law.
“Note Registrar” has the meaning given to such term in Section 2.03(a).
“Notes” means the Equipment Notes and the Subordinated Notes.
“Notices” has the meaning given to such term in Section 13.04.
“NRSRO” means any nationally recognized statistical rating organization.
“Officer’s Certificate” means a certificate signed (i) in the case of a corporation, by the President, any Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of such corporation, (ii) in the case of a partnership, by the Chairman of the Board, the President or any Vice President, the Treasurer or an Assistant Treasurer of a corporate general partner or limited liability company general partner (to the extent such limited liability company has officers), (iii) in the case of a commercial bank or trust company, by the Chairman or Vice Chairman of the Executive Committee or the Treasurer, any Trust Officer, any Vice President, any Executive or Senior or Second or Assistant Vice President, or any other officer or assistant officer customarily performing the functions similar to those performed by the persons who at the time shall be such officers, or to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and (iv) in the case of a limited liability company, any manager or member (other than a special member) thereof, and any President, Managing Director or Vice President of
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(A) such limited liability company, (B) such manager or member, or (C) a manager of such manager or member.
“Operating Expenses” means (i) Issuer Expenses, (ii) Ordinary Course Expenses and (iii) the costs of Required Modifications.
“Operative Agreements” means the Asset Transfer Agreements, Bills of Sale, Assignment and Assumptions, this Master Indenture, each Series Supplement, the Notes, each Officer’s Certificate of the Issuer, the Servicer, any Seller, the Administrator or TILC in any other capacity (including as settlor, initial beneficiary and SUBI trustee under any Marks Company Trust Supplement) delivered pursuant to any Operative Agreement, the Servicing Agreement, the Administrative Services Agreement, the Insurance Agreement, the Service Provider Agreements, the Account Administration Agreement, the Marks Company Trust Agreement, each Marks Company Trust Supplement, the Marks Servicing Agreement, the Hedge Agreements and the Liquidity Facility Documents.
“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of the Servicer or the Administrator or counsel to the Issuer, that meets the requirements of Section 1.03.
“Optional Modification” means a modification or improvement of a Railcar, the cost of which is capitalized in accordance with U.S. GAAP, that (a) is not a Required Modification and (b) complies with the criteria set forth in Section 5.04(z)(ii).
“Optional Redemption” means, with respect to any Series of Notes or any Class within a Series of Notes, a voluntary prepayment by the Issuer of all or a portion of the Outstanding Principal Balance of such Series or Class in accordance with the terms of this Master Indenture and the applicable Series Supplement; and, with respect to all Outstanding Notes, a voluntary prepayment by the Issuer of the Outstanding Principal Balance of the Notes in accordance with the terms of this Master Indenture and each applicable Series Supplement.
“Optional Reinvestment Account” has the meaning given to such term in Section 3.01(a).
“Ordinary Course Expenses” means, with respect to any Payment Date, all of the following expenses and costs, incurred by, or on behalf of, the Issuer (including by the Servicer on behalf of the Issuer) in connection with the ownership, use, leasing and/or operation of the Portfolio Railcars during the related Collection Period (and without duplication): (i) costs for routine maintenance and repairs (but not Optional Modifications) needed to return a Railcar to serviceable condition for use in interchange; (ii) the cost of repositioning a Railcar in connection with the origination or termination of a Lease; (iii) legal fees and court costs incurred in connection with enforcing rights under a Lease of a Railcar and/or repossessing such Railcar (but excluding legal fees incurred by the Servicer in the negotiation and documentation of Future Leases or of
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amendments or renewals of Leases and Future Leases); (iv) the allocable cost of obtaining and maintaining contingent and off-lease insurance with respect to the Portfolio Railcars; (v) taxes, levies, duties, charges, assessments, fees, penalties, deductions or withholdings assessed, charged or imposed upon or against the use and operation of the Portfolio Railcars; (vi) the cost of storing an off-lease Railcar; (vii) expenses and costs (including legal fees) of pursuing claims against manufacturers or sellers of a Railcar; (viii) non-recoverable sales and value-added taxes with respect to a Railcar; (ix) governmental filing fees necessary to perfect, or continue the perfection of, the security interest of the Indenture Trustee in a Railcar and/or a Lease; (x) the costs of Optional Modifications (but not in excess, in any calendar month, of the result of (A) one hundred thousand dollars ($100,000) multiplied by (B) the number of Outstanding Series on the first day of such calendar month); and (xi) all other expenses and costs, incurred by, or on behalf of, the Issuer (including by the Servicer on behalf of the Issuer) in connection with the ownership, use, leasing and/or operation of the Portfolio Railcars during the related Collection Period, other than Issuer Expenses, the costs of Required Modifications, and Excluded Expenses.
“Outstanding” means with respect to the Notes of any Series or any Class thereof at any time, all Notes of such Series or such Class, as the case may be, previously authenticated and delivered by the Indenture Trustee except (i) any such Notes cancelled by, or delivered for cancellation to, the Indenture Trustee; (ii) any such Notes, or portions thereof, for which the payment of principal of and accrued and unpaid interest on which moneys have been deposited in the Series Account for such Series or such Class, as the case may be, or distributed to Noteholders by the Indenture Trustee and any such Notes, or portions thereof, for the payment or redemption of which moneys in the necessary amount have been deposited in the Redemption/Defeasance Account for such Notes; and (iii) any such Notes in exchange or substitution for which other Notes, as the case may be, have been authenticated and delivered, or which have been paid pursuant to the terms of this Master Indenture (unless proof satisfactory to the Indenture Trustee is presented that any of such Notes is held by a Person in whose hands such Note is a legal, valid and binding obligation of the Issuer). Section 1.04(c) sets forth certain limitations on whether a Note held by the Issuer or any other Issuer Group Member will be considered to be Outstanding for purposes of Directions.
“Outstanding Note” means a Note that is Outstanding.
“Outstanding Obligations” means, as of any date of determination, an amount equal to the sum of (i) the Outstanding Principal Balance of, and all accrued and unpaid interest (including without limitation, Additional Interest) payable on the Notes and (ii) all other amounts owing from time to time to Noteholders, or to any other Person under the Operative Agreements.
“Outstanding Principal Balance” means, with respect to any Outstanding Notes the total principal balance of such Outstanding Notes unpaid and outstanding at any time.
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“Part” means any and all parts, attachments, accessions, appurtenances, furnishings, components, appliances, accessories, instruments and other equipment installed in, or attached to (or constituting a spare for any such item installed in or attached to) any Railcar.
“Paying Agent” has the meaning given to such term in Section 2.03(a). The term “Paying Agent” includes any additional Paying Agent.
“Payment Date” means the 19th calendar day of each month, commencing on August 19, 2021; provided that if any Payment Date would otherwise fall on a day that is not a Business Day, such Payment Date shall be the first following day which is a Business Day.
“Payment Date Schedule” means the schedule prepared by the Administrator pursuant to Section 3.10(e).
“Payment Intangible” means all “payment intangibles” as defined in Article 9 of the UCC.
“Permitted Discretionary Sale” has the meaning given to such term in Section 5.03(a)(iii).
“Permitted Encumbrance” means: (i) the ownership interests of the Issuer; (ii) the interest of the Lessee as provided in any Lease; (iii) any Encumbrance for taxes, assessments, levies, fees and other governmental and similar charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings so long as there exists no material risk of sale, forfeiture, loss, or loss of or interference with use or possession of the affected asset, and such contest would not result in the imposition of any criminal liability on the Issuer or any assignee thereof; (iv) in respect of any Railcar, any Encumbrance of a repairer, mechanic, supplier, materialman, laborer and the like arising in the ordinary course of business by operation of law or similar Encumbrance, provided that the proceedings relating to such Encumbrance or the continued existence of such Encumbrance does not give rise to any reasonable likelihood of the sale, forfeiture or other loss of the affected asset, and such contest would not result in the imposition of any criminal liability on the Issuer or any assignee thereof; (v) Encumbrances granted to the Indenture Trustee under and pursuant to this Master Indenture; (vi) any Encumbrances created by or through or arising from debt or liabilities or any act or omission of any Lessee in each case either in contravention of the relevant Lease (whether or not such Lease has been terminated) or without the consent of the relevant Lessor (provided that if the Issuer becomes aware of any such Encumbrance, it shall use commercially reasonable efforts to have any such Encumbrance lifted, removed and otherwise discharged); (vii) salvage rights of insurers under insurance policies covering the affected asset; (viii) any sublease permitted under any Lease; (ix) Encumbrances which are released or extinguished upon the transfer of the related asset to the Issuer by the applicable transferee thereof; and (x) Encumbrances on railcars and leases that result from a Rider being a Mixed Rider.
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“Permitted Excess Concentration” means the aggregate Adjusted Value of the Issuer’s Railcars leased to an individual Lessee exceeds a percentage limitation specified in the definition of Customer Concentration Limitation as a result of the merger or consolidation of one or more Lessees. A Permitted Excess Concentration shall not be a violation of the Customer Concentration Limitation or the Concentration Limits generally; however, no additional Railcars may be leased to such Lessee (not counting then-currently leased Railcars that are re-leased to the then-current Lessee), and additional Railcars leased to such Lessee may not be purchased, by the Issuer unless, upon such lease or purchase, the Adjusted Value of the Issuer’s Railcars leased to such individual Lessee will meet the applicable Customer Concentration Limitation.
“Permitted Holder” has the meaning given to such term in Section 5.02(i)(A).
“Permitted Investments” means one or more of the following obligations which (i) are acquired at a purchase price of not greater than par, (ii) have a fixed principal amount due at maturity, if applicable, and (iii) unless full payment of principal is paid in cash upon the exercise of the option, do not include any embedded options (i.e., not callable, putable or convertible): (a) marketable direct obligations issued by, or fully and unconditionally guaranteed by, the United States Government or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition, (b) certificates of deposit, time deposits, demand deposits, eurocurrency time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any United States commercial bank having a long-term unsecured debt rating of at least “AA-” by S&P and “A1” by Moody’s or equivalent ratings by another nationally recognized credit rating agency in substitution of Moody’s if Moody’s is not in the business of rating long-term senior unsecured debt of commercial banks, (c) commercial paper of an issuer rated at the time of acquisition at least A-1+ by S&P and P1 by Moody’s or, in substitution of Moody’s if Moody’s ceases publishing ratings of commercial paper issuers generally, carrying an equivalent rating by an internationally recognized rating agency, and maturing within one year from the date of acquisition, (d) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States Government, (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at the time of acquisition at least A-l+ by S&P and P1 by Moody’s, or in substitution of Moody’s if Moody’s ceases publishing ratings of such a state, commonwealth, territory, political subdivision, taxing authority or foreign government, carrying an equivalent rating by an internationally recognized rating agency, (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of
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clause (b) of this definition or (g) shares of money market mutual or similar funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 thereunder and that, at the time of such investment, are rated “Aaa” by Moody’s and “AAA” by S&P or invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. The ratings by S&P described in this definition must be an unqualified rating (i.e., one with no qualifying suffix), with the exception of ratings with regulatory indicators and unsolicited ratings.
“Permitted Lease” means (a) each Existing Lease (including any renewal or extension thereof to the extent such renewal or extension complies with clauses (i), (iii), (iv) and (v) below) and (b) any agreement (other than an Existing Lease) constituting a Lease that meets all of the following requirements:
(i)    the Lessee thereunder is a Permitted Lessee;
(ii)    if such agreement permits the Lessee thereunder to sublease any of the Portfolio Railcars subject to such Lease, then such Lease shall require that any such sublease be conditioned on (A) the Lessee’s obtaining the Lessor’s prior consent to such sublease, (B) the Lessee agreeing that any such sublease will have provisions making it terminable (as to the sublessee) at the request of the Lessor or Lessee, as applicable, and prohibiting any further subleasing by the sublessee and will not contain any purchase option in favor of the sublessee, (C) the Lease providing that no such sublease shall relieve the Lessee from liability thereunder and (D) the applicable sublessee satisfying the requirements for a “Permitted Lessee” set forth below;
(iii)    such agreement was entered into on an arm’s length basis with fair market terms on the date of its execution, and does not require any prepayment of rental payments throughout the term of such agreement;
(iv)    such agreement does not contain any purchase option in favor of the Lessee thereunder, other than a purchase option provision complying with the definition of a Permitted Purchase Option;
(v)    such agreement (or any related consent, acknowledgment of assignment, side letter or similar written instrument executed by such Lessee) permits the assignment, pledge, mortgage or other similar disposition of the Lease of the related Railcar without notice to or consent by the Lessee (or, in the case of a written instrument described in the foregoing parenthetical, any further notice to or consent by the Lessee), it being understood that the inclusion within such permission or written instrument of language to the effect that such Lessee consent is conditioned on the assignees’ agreement that it takes its interest in the Railcar and/or related Lease subject to the rights of the Lessee in such Railcar under the Lease, including the right of quiet enjoyment, shall not in and of itself be deemed to constitute the Lease as other than a Permitted Lease; and
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(vi)    such agreement contains a provision substantially to the effect that the lease rentals payable under such agreement are not subject to offset, deduction or counterclaim (except as expressly contemplated in any rental abatement provisions contained in a Full Service Lease); provided that this clause (vi) shall not apply if such agreement is subject to the terms of, or entered into pursuant to, an existing master lease agreement dated on or prior to a Closing Date which does not contain such a provision.
“Permitted Lessee” means any of the following:
(i)    a railroad company or companies (that is not a Credit Bankrupt, Trinity or any Affiliate of Trinity) organized under the laws of the United States of America or any state thereof or the District of Columbia, Canada or any province thereof, or Mexico or any state thereof, upon lines of railroad owned or operated by such railroad company or companies or over which such railroad company or companies have trackage rights or rights for operation of their trains, and upon connecting with other carriers in the usual interchange of traffic;
(ii)    a company with which the Servicer would do business in the ordinary course of its business with respect to railcars which it owns or manages for its own account (other than railroad companies, Trinity, Affiliates of Trinity or Credit Bankrupts) for use in their business; and whose credit profile does not vary materially from the credit profile of lessees of other railcars owned, leased or managed by the Servicer for its own account; or
(iii)    wholly-owned Subsidiaries of Trinity organized under the laws of (x) Canada or any political subdivision thereof or (y) Mexico or any political subdivision thereof, in each case so long as such Leases are on an arm’s length basis;
provided, however, that a Person organized under the laws of Mexico or any state thereof (a “Mexican Lessee”) shall not constitute a Permitted Lessee unless after giving effect to the contemplated lease to such Mexican Lessee, the percentage of Portfolio Railcars in the aggregate (as measured by Adjusted Value) leased (or subleased by a Lessee organized under the laws of the United States of America or any state thereof or the District of Columbia, Canada or any province thereof to a sublessee organized under the laws of Mexico or any state thereof, as applicable) to all Mexican Lessees does not exceed 20% of the Adjusted Value of the Portfolio Railcars in the aggregate.
“Permitted Purchase Option” has the meaning given such term in Section 5.01(z).
“Permitted Railcar Acquisition” has the meaning given to such term in Section 5.03(c).
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“Permitted Railcar Disposition” has the meaning given to such term in Section 5.03(a).
“Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any political subdivision thereof or any other legal entity, including public bodies.
“Plan” has the meaning given to such term in Section 2.11(g)(i).
“Portfolio” means, at any time, all Portfolio Railcars and the Leases related to such Railcars.
“Portfolio Lease” means, as of any date of determination, any Lease related to any Portfolio Railcar.
“Portfolio Railcars” means, as of any date of determination, all Railcars then owned by the Issuer that are subject to the Security Interest granted pursuant to this Master Indenture.
“Prefunding Account”, with respect to a Series, if applicable, has the meaning given to such term in the related Series Supplement.
“Principal Terms” means, with respect to any Series, all of the following information: (i) the name or designation of such Series and the Classes of Notes to constitute such Series; (ii) the initial principal balance of the Notes to be issued for such Series (or method for calculating such balance); (iii) the interest rate to be paid with respect to each Class of Notes for such Series; (iv) the Payment Date and the date or dates from which interest shall accrue and on which principal is scheduled to be paid; (v) the designation of any Series Accounts and Class Accounts, if any, for such Series and the terms governing the operation of any such Series Accounts and Class Accounts, if any; (vi) the Final Maturity Date; (vii) the Control Party; (viii) the Scheduled Principal Payment Amounts for each Class of Notes within such Series, (ix) in the case of an Additional Series, the rights to payment of interest and principal, which rights shall not be inconsistent with the Flow of Funds and this Master Indenture; (x) in the case of an Additional Series, the terms, if any, for the optional or early redemption of such Additional Series, (xi) in the case of an Additional Series, the form, authorization, execution and delivery, and the manner of redemption and repayment of such Additional Series, which terms shall be substantially similar to those applicable to the Initial Notes and in any event not inconsistent with the terms of this Master Indenture; (xii) in the case of an Additional Series, the legends applicable to such Additional Series, if any, which are required in addition to those set forth in this Master Indenture; (xiii) in the case of an Additional Series, whether the Notes of such Series are eligible for purchase by ERISA plans; and (xiv) any other terms of such Series.
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“Private Placement Legend” means the legend initially set forth on the Notes in the form set forth in Section 2.02.
“Pro Forma Lease” has the meaning given to such term in Section 5.03(e)(ii).
“Proceeding” means any suit in equity, action at law, or other judicial or administrative proceeding.
“Proceeds” means (a) all “proceeds” as defined in Article 9 of the UCC, (b) dividends, payments or distributions made with respect to any Investment Property and (c) whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected, converted or otherwise disposed of, whether such disposition is voluntary or involuntary.
“Prospective Operating Expenses” means, as of any date of determination, the Administrator’s (after consulting with the Servicer) good faith estimate of significant anticipated Operating Expenses expected to be incurred over the next twelve Collection Periods that could impact the Issuer’s ability to pay interest and Scheduled Principal Payment Amounts.
“Provincial Personal Property Security Act” means, in respect of each province or territory in Canada (other than Quebec), the Personal Property Security Act as from time to time in effect in such province or territory and, in respect of Quebec, the Civil Code of Quebec as from time to time in effect in such province.
“Prudent Industry Practice” means at a particular time and to the extent the same are generally known by those in the industry, the standard of operating and maintenance practices, methods and acts, including, but not limited to those required by the Field Manual of the AAR, FRA rules and regulations and Interchange Rules, which, in the light of the relevant facts is generally engaged in or approved by a significant portion of the owners, managers and operators of railcars in the United States that are similar to the Portfolio Railcars, could have been expected to accomplish the desired result consistent with good business practices, reliability, safety and expedition. Prudent Industry Practice is not intended to require optimum practice, method or acts, but rather a spectrum of possible practices, methods or acts that are generally engaged in by other owners, managers and operators of railcars in the United States which are similar to the Portfolio Railcars.
“Purchase Option Disposition” has the meaning given to such term in Section 5.03(a)(i).
“Purchase Price” means (a) in the case of a Permitted Railcar Acquisition, the amount to be paid to the seller of a Railcar pursuant to the related Asset Transfer Agreement, and (b) in the case of a Required Modification or an Optional Modification, the cost of such Required Modification or Optional Modification, as provided in the
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Modification Agreement (if any) with the Supplier of such Required Modification or Optional Modification.
“Purchaser” means an Initial Purchaser.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Institutional Buyer” means a “qualified institutional buyer” as defined in Rule 144A promulgated under the Securities Act.
“Qualifying Replacement Railcars” means, in relation to a Replacement Exchange, Railcars that (a) are of at least a substantially comparable remaining economic useful life to the average remaining useful economic life of the Reference Sold Railcars, and (b) are (i) if subject to a Lease, such Lease is a Comparable Lease or (ii) if not subject to a Lease, the Administrator, on behalf of the Issuer, certifies to the Indenture Trustee that it has a reasonable, good faith expectation that such non-leased Railcars will generate at least the same amount of monthly lease revenue (once placed under Lease) as Railcars subject to a Comparable Lease.
“Railcar” means an item of railroad rolling stock, together with (i) any and all replacements or substitutions thereof, (ii) any and all tangible components thereof and (iii) any and all related appliances, Parts, accessories, appurtenances, accessions, additions, improvements to and replacements from time to time incorporated or installed in any item thereof.
“Railcar Advance Rate” means, as of any Payment Date and as determined for the Equipment Notes, and giving effect to all Flow of Funds allocations and other transactions occurring on such Payment Date, the percentage equivalent of a fraction, the numerator of which is the aggregate Outstanding Principal Balance of the Equipment Notes as of such Payment Date, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such Payment Date.
“Railcar Disposition” means any sale, transfer or other disposition of any Railcar (or an interest therein), including by reason of such Railcar suffering a Total Loss or a Scrap Value Disposition.
“Railroad Authority” means the STB, the AAR, and/or any other Governmental Authority which, from time to time, has control or supervision of railways or has jurisdiction over the railworthiness, operation and/or maintenance of a Railcar operating in interchange.
“Railroad Mileage Credits” means the mileage credit payments made by railroads under their applicable tariffs to the registered owner of identifying marks on the railcars.
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“Rapid Amortization Class” means a Class affected by a Rapid Amortization Event, i.e., a Rapid Amortization Event has occurred with respect to the Series of which such Class is a part and such Rapid Amortization Event applies to such Class.
“Rapid Amortization Date”, with respect to a Series, is defined in the related Series Supplement, if applicable.
“Rapid Amortization Event”, with respect to a Series, is defined in the related Series Supplement, if applicable.
“Rapid Amortization Notes” means the Notes of a Rapid Amortization Class or Rapid Amortization Series, as applicable.
“Rapid Amortization Series” means a Series affected by a Rapid Amortization Event, i.e., a Rapid Amortization Event has occurred with respect to such Series.
“Rating Agency” means, with respect to a Series of Notes, each nationally recognized statistical rating organization hired by the Issuer to issue a rating with respect to such Series of Notes or Class thereof as specified in the applicable Series Supplement; provided that such organization shall be deemed to be a Rating Agency only with respect to such Series or Class of Notes, as specified in the related Series Supplement, only so long as such Series or Class of Notes is Outstanding, and only so long as such organization maintains a rating on such Series or Class of Notes.
“Rating Agency Confirmation” means, with respect to any request, action, event or circumstance, and each Rating Agency then maintaining a rating on any Series of Notes (or Class thereof) then Outstanding, (a) written confirmation by such Rating Agency that fulfillment of such request or the taking of the requested action, or the occurrence of such event or circumstance will not itself cause the Rating Agency to downgrade or withdraw its then-current rating assigned to any such Series or Class, or (b) written notice to such Rating Agency of such request, action, event or circumstance, shall have been given by the Issuer at least ten (10) days prior to the request, action, event or circumstance (or, if Rating Agency Confirmation is required by the applicable transaction documents following the occurrence of an event or circumstance such written notice shall have been given by the Issuer immediately following the occurrence of such event or circumstance) and (i) prior to the expiration of such ten (10) day period, such Rating Agency shall not have issued any written notice that the fulfillment of such request or the taking of the requested action, or occurrence of such event or circumstance will itself cause such Rating Agency to downgrade or withdraw its then current rating assigned to any of the Notes or (ii) such Rating Agency has communicated that it will not review such request, action, event or circumstances for purposes of evaluating whether to confirm its then current rating assigned to any of the Notes; provided, that if a Rating Agency has made a public statement to the effect that it will no longer review requests, actions, events or circumstances of the type requiring receipt of a Rating Agency Confirmation for purposes of evaluating whether to confirm the then-current rating of obligations rated by such Rating Agency, then such public
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statement shall be deemed to be a Rating Agency Confirmation with respect to such Rating Agency for any such request, action, event or circumstance.
“Received Currency” has the meaning given to such term in Section 13.06(a).
“Record Date” means with respect to each Payment Date, the close of business on the fifth Business Day immediately preceding such Payment Date and, with respect to the date on which any Direction is to be given by Noteholders, the close of business on the last Business Day prior to the solicitation of such Direction.
“Redemption Date” means the date on which Notes of any Series or Class are redeemed pursuant to an Optional Redemption.
“Redemption/Defeasance Account” means an account established by the Indenture Trustee pursuant to Section 3.08.
“Redemption Fraction” has the meaning given to such term in Section 3.14(c).
“Redemption Notice” means, a notice sent by the Indenture Trustee to the Noteholders in respect of the Notes to be redeemed, as described in Section 3.13(d).
“Redemption Premium” means, with respect to the principal amount of any Series (or Class) of Notes to be prepaid on any prepayment date, an amount, if any, specified in the applicable Series Supplement.
“Redemption Price” means, with respect to any Series of Notes or Class thereof that will be the subject of an Optional Redemption, an amount (determined as of the Determination Date (or, in respect of the applicable Hedge Termination Value, the date of termination of any applicable Hedge Agreement) for the Redemption Date for such Optional Redemption) equal to, unless otherwise specified in the related Series Supplement, the Outstanding Principal Balance of the Series or Class of Notes being repaid together with all accrued and unpaid interest thereon and, if specified in the related Series Supplement, (a) the Redemption Premium thereon and (b) the Hedge Termination Value, if any, owed by the Issuer to Hedge Providers in connection therewith. For purposes of reporting any Hedge Termination Value applicable to an Optional Redemption, the Redemption Notice shall include an estimated amount of any such Hedge Termination Value as of the date of such Redemption Notice, and a supplement to the Redemption Notice will be delivered prior to the Redemption Date with such final Hedge Termination Value ascertained as of the date of termination of any applicable Hedge Agreement.
“Reference Sold Railcars” means, with respect to Qualifying Replacement Railcars, the Sold Railcars to which the relevant Net Disposition Proceeds relate.
“Register” has the meaning given to such term in Section 2.03(a).
“Regulation D” means Regulation D under the Securities Act.
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“Regulation S” means Regulation S under the Securities Act.
“Regulation S Book-Entry Notes” means the Unrestricted Book-Entry Notes and the Regulation S Temporary Book-Entry Notes.
“Regulation S Temporary Book-Entry Note” means Equipment Notes initially sold outside the United States in reliance on Regulation S, represented by a single temporary global note in fully registered form, without interest coupons, the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for a Regulation S Temporary Book-Entry Note inscribed thereon.
“Reimbursable Services” has the meaning given to such term in Section 5.4 of the Servicing Agreement.
“Related Document Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Related Documents” has the meaning given to such term in Section 5.04(y)(i).
“Relative Documents” means the Service Provider Agreements, the Asset Transfer Agreements, this Master Indenture, the Series Supplements and the Notes, together with all certificates, documents and instruments delivered pursuant to any of the foregoing.
“Relevant Information” means the information provided by the Service Providers to the Administrator that is required to enable the Administrator make the calculations contemplated by Section 3.10(a) through (e).
“Replacement Exchange” means the acquisition by the Issuer of one or more Qualifying Replacement Railcars with all or a portion of the Net Disposition Proceeds from a Permitted Railcar Disposition (other than a Scrap Value Disposition), in each case within the Replacement Period applicable to such Permitted Railcar Disposition, as provided in Section 5.03.
“Replacement Period” means, with respect to the Issuer’s use of all or any portion of Net Disposition Proceeds as permitted in accordance with this Master Indenture, the period beginning on the date of the applicable Railcar Disposition and ending on the earlier of (i) either (A) the 180th day after the date of the Issuer’s receipt of all Net Disposition Proceeds from such Railcar Disposition, or (B) if all Railcar Dispositions occurring during a single Collection Period in the aggregate relate to more than fifty percent (50%) of the Adjusted Value of all Portfolio Railcars in existence at beginning of such Collection Period, the 90th day after the date of the Issuer’s receipt of all Net Disposition Proceeds from such Railcar Disposition, and (ii) the occurrence of an Event of Default.
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“Required Expense Amount” means, with respect to a Payment Date, an amount equal to the sum of (i) the Operating Expenses payable on such Payment Date, consisting of all Operating Expenses actually incurred by the Service Providers and not previously reimbursed and the amounts shown on all invoices received from the Service Providers for the reimbursement or payment of Operating Expenses due or to become due on or before such Payment Date and not previously paid or reimbursed, (ii) a reserve amount to be deposited for Operating Expenses that are due and payable during the period beginning on such Payment Date and ending on (but excluding) the next Payment Date and (iii) a reserve amount to be deposited for Prospective Operating Expenses.
“Required Expense Deposit” has the meaning given to such term in Section 3.10(a)(ii).
“Required Expense Reserve” means the sum of the amounts described in clauses (ii) and (iii) in the definition of “Required Expense Amount.”
“Required Modification” means any alteration or modification of a Portfolio Railcar required by the AAR, the FRA, the United States Department of Transportation or any other United States or state governmental agency or any other applicable law (including without limitation, the laws of Mexico, Canada or any of their respective states and territories (as applicable)) and required by such entity as a condition of continued use or operation of such Railcar in interchange.
“Requisite Majority” means Noteholders that, individually or in the aggregate, representing more than fifty percent (50%) of the then Outstanding Principal Balance of the Senior Class (other than Equipment Notes held by Trinity or its Affiliates) for as long as such Class of Notes remain Outstanding.
“Responsible Officer” means, with respect to the subject matter of any covenant, agreement or obligation of any party contained in any Operative Agreement, the President, or any Vice President, Assistant Vice President, Treasurer, Assistant Treasurer or other officer, who in the normal performance of his or her operational responsibility would have knowledge of such matter and the requirements with respect thereto; and with respect to the Indenture Trustee, any Vice President, Assistant Vice President, Assistant Treasurer, Assistant Secretary, Corporate Trust Officer or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers, in each case, having direct responsibility for the administration of this Indenture; and when used in connection with the Issuer, shall include (i) any such officer of the Servicer or the Administrator acting on behalf of the Issuer under the applicable Service Provider Agreement, as the case may be, (ii) any such officer of the Member, or (iii) any such officer of a manager of the Member.
“Restricted Lessee Contact” has the meaning given to such term in Section 2.1(a) of the Servicing Agreement.
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“Rider” means a schedule or rider to a master lease agreement between the lessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Rating Services, a S&P Global Ratings business, or any successor to such entity’s business of rating securities, or, if such entity or its successor shall for any reason no longer perform the functions of a securities rating agency, “S&P” shall be deemed to refer to any other nationally recognized rating agency designated by the Issuer.
“Schedule” means a schedule or rider to a master lease agreement between the lessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“Scheduled Principal Payment Amount” means, for the Notes of any Series or Class, as applicable, on any Payment Date, the excess, if any, of (x) the then Outstanding Principal Balance of such Series or Class of Notes, as applicable, over (y) the Scheduled Targeted Principal Balance of such Series or Class, as applicable, for such Payment Date.
“Scheduled Targeted Principal Balance” means, for each Class of Notes within a Series and for any Payment Date, the amount identified as such for that Class in the related Series Supplement, as it may be adjusted from time to time in accordance with Section 3.14.
“Scrap Value Disposition” has the meaning given to such term in Section 5.03(a)(v).
“Section 385 Controlled Partnership” has the meaning set forth in Treasury Regulation Section 1.385-1(c)(1) for a “controlled partnership”.
“Section 385 Expanded Group” has the meaning set forth in Treasury Regulation Section 1.385-1(c)(4) for an “expanded group”.
“Secured Obligations” has the meaning given such term in the Granting Clause.
“Secured Parties” means the holders of and/or obligees in respect of the Secured Obligations, including without limitation the Noteholders, the Liquidity Facility Providers, the Servicer, the Administrator, the Insurance Manager, and the Hedge Providers.
“Securities” means any obligations of an issuer or any shares, participations or other interests in an issuer or in property or an enterprise of an issuer that (i) are represented by a certificate representing a security in bearer or registered form, or the transfer of which may be registered upon books maintained for that purpose by or on
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behalf of the issuer, (ii) are one of a class or series or by its terms is divisible into a class or series of shares, participations, interests or obligations and (iii)(A) are, or are of a type, dealt with or traded on securities exchanges or securities markets or (B) are a medium for investment and by their terms expressly provide that they are a security governed by Article 8 of the UCC.
“Securities Accounts” means all “securities accounts” as defined in Article 9 of the UCC.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Entitlements” means all “security entitlements” as defined in Article 9 of the UCC.
“Security Interests” means the security interests and other Encumbrances granted or expressed to be granted in the Collateral pursuant to this Master Indenture.
“Seller” has the meaning given to such term in the applicable Asset Transfer Agreement.
“Senior Claim” has the meaning given to such term in Section 11.01(a).
“Senior Claimant” has the meaning given to such term in Section 11.01(a).
“Senior Class” means (a) initially, all Outstanding Class A Equipment Notes, (b) on and after the payment in full of all Outstanding Obligations with respect to the Class A Equipment Notes, all Outstanding Class B Equipment Notes, (c) on and after the payment in full of all Outstanding Obligations with respect to the Class A Equipment Notes and Class B Equipment Notes, all Outstanding Class C Equipment Notes and (d) on and after the payment in full of all Outstanding Obligations with respect to the Equipment Notes, all Outstanding Subordinated Notes.
“Senior Hedge Payments” means all payments owed by the Issuer under a Hedge Agreement (including any Hedge Termination Value owed by the Issuer to the extent not satisfied from funds received by a Hedge Provider from any replacement Hedge Provider) except for Subordinated Hedge Payments.
“Senior Notes” has the meaning given to such term in Section 2.17(c).
“Series” means any series of Notes established pursuant to a Series Supplement.
“Series 2021-1 Notes” means the Initial Notes.
“Series Account” has the meaning given to such term in Section 3.01(a).
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“Series Issuance Date” means, with respect to any Series of Additional Notes, the date on which the Notes of such Series are issued in accordance with the provisions of Section 9.06 and the related Series Supplement.
“Series Supplement” means any supplement to this Master Indenture, other than an Indenture Supplement, which sets forth the Principal Terms and other terms and conditions of a Series of Notes issued under this Master Indenture and such Series Supplement.
“Service Provider” means each of or all of (as the context may require) the Servicer, the Insurance Manager, the Indenture Trustee (including in its capacities as Paying Agent and Note Registrar), the Administrator and the Liquidity Facility Providers.
“Service Provider Agreements” means, when used with respect to any Service Provider, the Servicing Agreement, the Insurance Agreement, the Administrative Services Agreement, this Master Indenture, or, in the case of a Liquidity Facility Provider, the applicable agreements providing for payment or reimbursement of fees and expenses of such Liquidity Facility Provider, in each case as applicable to such Service Provider which is party thereto, or any of the foregoing individually as the context requires.
“Service Provider Fees” means (a) all fees, expenses and indemnities due or reimbursable to the Indenture Trustee (including in its capacities as Paying Agent and Note Registrar), the Servicer, the Insurance Manager and the Administrator in accordance with the applicable agreements with such Service Providers (including the Relative Documents), including the Indenture Trustee Fees due to the Indenture Trustee hereunder and the Servicing Fee due to the Servicer under the Servicing Agreement, but excluding any such amounts that constitute Operating Expenses, and (b) all fees and expenses (but not reimbursement or indemnification obligations) payable to the Liquidity Facility Providers in connection with the Liquidity Facilities.
“Servicer” means TILC, in its capacity as Servicer under the Servicing Agreement, including its successors in interest, until another Person shall have become the “Servicer” under such agreement, after which “Servicer” shall mean such other Person.
“Servicer Advance” has the meaning given to such term in the Servicing Agreement.
“Servicer Default” has the meaning given to such term in Section 8.2 of the Servicing Agreement.
“Servicer Optional Modification Cap” has the meaning given to such term in Section 3.11(a)(8).
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“Servicer Optional Modification Expense” has the meaning given to such term in Section 3.11(a)(8).
“Servicer Termination Event” means the occurrence of any event specified in the Servicing Agreement (and with respect to events that include a cure or grace period or notice requirement, following the elapsing of such period without cure or the delivery of such notice, as applicable) which gives the Issuer thereunder or its assignees the right to effect a replacement of the current Servicer thereunder with a successor or replacement Servicer.
“Servicer’s Fleet” means the TILC Fleet as of the Closing Date or as of any date thereafter and does not include Portfolio Railcars and, if a Successor Servicer shall have been appointed pursuant to the Servicing Agreement, “Servicer’s Fleet” means all railcars owned, leased or managed by such Servicer or its Affiliates, in either case, other than Portfolio Railcars.
“Servicing Agreement” means the Servicing Agreement dated as of the Initial Closing Date between the Issuer and TILC, as initial Servicer thereunder.
“Servicing Fee” means, for any Payment Date, the compensation payable to the Servicer on such Payment Date in accordance with the terms of, and designated as such in, the Servicing Agreement.
“Similar Law” has the meaning given to such term in Section 2.11(g)(i).
“Sold Railcars” has the meaning given to such term in Section 5.03(a)(iii)(B).
“Stated Interest” means, with respect to any Note, interest payable on such Note at the Stated Rate for such Note.
“Stated Interest Amount” means, with respect to any Series of Notes (or Class thereof), that amount of Stated Interest due and payable on such Series of Notes (or Class thereof) on a Payment Date, including any Stated Interest due and payable on a prior Payment Date that was not paid on such Payment Date, as described in the last sentence of Section 3.04(c).
“Stated Interest Shortfall” has the meaning given to such term in Section 3.10(d)(i).
“Stated Rate” means, as specified in the related Series Supplement, the rate of interest payable on a specific Note of the related Series or Class.
“STB” means the Surface Transportation Board of the United States Department of Transportation or any successor thereto.
“Stock” means all shares of capital stock, all beneficial interests in trusts, all partnership interests (general or limited) in a partnership, all membership interests in
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limited liability companies, all ordinary shares and preferred shares and any options, warrants and other rights to acquire such shares or interests, as applicable.
“SUBI Certificate” means, with respect to Railcars that are conveyed to the Issuer from time to time so as to become Portfolio Railcars and that bear Trinity Marks, a SUBI Certificate evidencing a SUBI interest in such Trinity Marks under the Marks Company Trust Agreement.
“Subject Note” has the meaning given to such term in Section 2.17(a).
“Subordinated Hedge Payment” means (i) a payment on account of a Hedge Termination Value owed by the Issuer as a result of an early termination of a Hedge Agreement following an event of default or termination event in relation to which the Hedge Provider is the defaulting party or the sole affected party (except in the case of a termination event related to illegality or a termination event related to a tax event) and (ii) any Hedge Partial Termination Value payable by the Issuer as to which Rating Agency Confirmation has not been received.
“Subordinated Note” means any one of the promissory notes (representing any of the Class R Notes) executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Series Supplement.
“Subordinated Note Amortization Date” means the earlier of (i) the Rapid Amortization Date and (ii) the first Payment Date upon which all amounts owing in respect of the Class A Equipment Notes, the Class B Equipment Notes and the Class C Equipment Notes (and all other obligations senior thereto in accordance with the Flow of Funds) have been paid in full in accordance with the Flow of Funds.
“Subordinated Note Purchase Agreement” with respect to a Series of Subordinated Notes, has the meaning given to such term in the related Series Supplement.
“Subordinated Railcar Advance Rate” means, as of any Payment Date and as determined for the Subordinated Notes, and giving effect to all Flow of Funds allocations and other transactions occurring on such Payment Date, the percentage equivalent of a fraction, the numerator of which is the aggregate Outstanding Principal Balance of the Subordinated Notes as of such Payment Date, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such Payment Date.
“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, or the management of which is otherwise
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controlled, directly or indirectly through one or more intermediaries, or both, by such Person.
“Successor Administrator” has the meaning given to such term in Section 4(d) of the Administrative Services Agreement.
“Successor Insurance Manager” has the meaning given to such term in Section 6.3(b) of the Insurance Agreement.
“Successor Servicer” has the meaning given to such term in Section 8.6 of the Servicing Agreement.
“Supplier” means the Person that supplies or installs a Required Modification or Optional Modification and to whom payment for the Purchase Price of such Required Modification or Optional Modification is to be made.
“Supporting Obligation” means all “supporting obligations” as defined in Article 9 of the UCC.
“Tax” and “Taxes” mean any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, loss, damage, liability, expense, additions to tax and additional amounts or costs incurred or imposed with respect thereto) imposed or otherwise assessed by the United States or by any state, local or foreign government (or any subdivision or agency thereof) or other taxing authority, including, without limitation: taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth and similar charges; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, taxes on goods and services, gains taxes, license, registration and documentation fees, customs duties, tariffs, and similar charges.
“Third Party Event” has the meaning given to such term in Section 5.04.
“TILC” means Trinity Industries Leasing Company, a Delaware corporation.
“TILC Agreements” means the Operative Agreements to which TILC is or will be a party.
“TILC Fleet” means all Railcars owned, leased or managed by TILC as of any date of determination but excluding the Portfolio Railcars.
“TILC Green Bond Program” means the Trinity Industries Leasing Company Green Financing Framework dated January 2021, as may be amended, modified or replaced from time to time.
ANNEX A
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“Total Loss” means, with respect to any Railcar (a) if the same is subject to a Lease, an Event of Loss (as defined in such Lease) or the like (however so defined); or (b) if the same is not subject to a Lease, (i) its actual, constructive, compromised, arranged or agreed total loss, (ii) its destruction, damage beyond economic repair or being rendered unfit for commercial use for any reason whatsoever, (iii) its requisition for title, confiscation, restraint, detention, forfeiture or any compulsory acquisition or seizure or requisition for hire (other than a requisition for hire for a temporary period not exceeding 180 days) by or under the order of any government (whether civil, military or de facto) or public or local authority or (iv) its hijacking, theft or disappearance, resulting in loss of possession by the owner or operator thereof for a period of ninety (90) consecutive days or longer. A Total Loss with respect to any Railcar shall be deemed to occur on the date on which such Total Loss is deemed pursuant to the relevant Lease to have occurred or, if such Lease does not so deem or the relevant Railcar is not subject to a Lease, (A) in the case of an actual total loss or destruction, damage beyond economic repair or being rendered permanently unfit, the date on which such loss, destruction, damage or rendering occurs (or, if the date of loss or destruction is not known, the date on which the relevant Railcar was last heard of); (B) in the case of a constructive, compromised, arranged or agreed total loss, the earlier of (1) the date 30 days after the date on which notice claiming such total loss is issued to the insurers or brokers and (2) the date on which such loss is agreed or compromised by the insurers; (C) in the case of requisition for title, confiscation, restraint, detention, forfeiture, compulsory acquisition or seizure, the date on which the same takes effect; (D) in the case of a requisition for hire, the expiration of a period of 180 days from the date on which such requisition commenced (or, if earlier, the date upon which insurers make payment on the basis of a Total Loss); or (E) in the case of clause (iv) above, the final day of the period of 90 consecutive days referred to therein.
“Transaction Parties” means the Issuer, TILC, the Indenture Trustee, the Initial Purchasers or any of their respective Affiliates.
“Transferee” has the meaning given to such term in Section 2.17(a).
“Transferred Note” has the meaning given to such term in Section 2.17(a).
“Treasury Regulations” means the income tax regulations promulgated under the Code.
“Trinity” means Trinity Industries, Inc., a Delaware corporation.
“Trinity Marks” means the Marks owned by the Marks Company.
“TRLWT” means Trinity Rail Leasing Warehouse Trust, a Delaware statutory trust.
“TRLWT Agreements” means the Operative Agreements to which TRLWT is or will be party.
ANNEX A
Page 44


“UCC” means the Uniform Commercial Code as enacted in the State of New York, or when the context implies, the Uniform Commercial Code as in effect from time to time in any other applicable jurisdiction.
“Unit Inspection” has the meaning given to such term in Section 5.04(y)(i).
“United States Person” and “U.S. Person” have the meanings given to such terms in Regulation S under the Securities Act.
“Unrestricted Book-Entry Note” shall have the meaning given to such term in Section 2.01(c)(iv), the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for an Unrestricted Book-Entry Note inscribed thereon.
“U.S. Bank” means U.S. Bank National Association, a national banking association.
“U.S. GAAP” means generally accepted accounting principles in the United States, as in effect from time to time.
“U.S. Government Obligations” has the meaning given to such term in Section 12.02(a).
“U.S.-Restricted Note” has the meaning given to such term in Section 2.17(b).
“WTC” means Wilmington Trust Company, a Delaware trust company.


ANNEX A
Page 45

Exhibit 10.5.2
EXECUTION VERSION










SERIES 2021-1
SUPPLEMENT
TRINITY RAIL LEASING 2021 LLC,
as Issuer,
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
dated as of June 30, 2021
______________________________
SERIES 2021-1 NOTES
______________________________

TABLE OF CONTENTS
Page

ARTICLE I DEFINITIONS 1
Section 1.01 Definitions 1
ARTICLE II THE SERIES 2021-1 NOTES 4
Section 2.01 Designation of Series; Series 2021-1 Notes 4
Section 2.02 Grant of Security Interest in 2021-1 Series Account 5
Section 2.03 Authentication and Delivery 5
Section 2.04 Interest Payments on the Series 2021-1 Notes 6
Section 2.05 Principal Payments on the Series 2021-1 Notes 6
Section 2.06 Prepayment of Principal on the Series 2021-1 Notes 7
Section 2.07 Manner of Payment 9
Section 2.08 Restrictions on Transfer 9
Section 2.09 Final Maturity Date 10
Section 2.10 Hedging Requirement 10
ARTICLE III 2021-1 SERIES ACCOUNT 10
Section 3.01 2021-1 Series Account 10
Section 3.02 Distributions from 2021-1 Series Account 10
Section 3.03 Liquidity Reserve Target Amount 11
ARTICLE IV CONDITIONS TO ISSUANCE 11
Section 4.01 Conditions to Issuance 11
ARTICLE V REPRESENTATIONS AND WARRANTIES 11
Section 5.01 Master Indenture Representations and Warranties 11
ARTICLE VI MISCELLANEOUS PROVISIONS 11
Section 6.01 Ratification of Master Indenture 11
Section 6.02 Counterparts 11
Section 6.03 Governing Law 11
Section 6.04 Notices to the Rating Agency 12
Section 6.05 Notices to Liquidity Facility Provider 12
Section 6.06 Amendments and Modifications 12

EXHIBITS

EXHIBIT A Form of Class A Note
EXHIBIT B Form of Class B Note

SCHEDULES

SCHEDULE 1 Description of Initial Railcars
SCHEDULE 2 Description of Initial Leases
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SERIES 2021-1 SUPPLEMENT, dated as of June 30, 2021 (this “Series 2021-1 Supplement”), issued pursuant to, and incorporating the terms of, the Master Indenture, dated as of the date hereof (as amended, modified or supplemented from time to time, the “Master Indenture”, and, together with this Series 2021-1 Supplement, the “Series 2021-1 Indenture”) between TRINITY RAIL LEASING 2021 LLC, a Delaware limited liability company (the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Indenture Trustee (the “Indenture Trustee”).
WITNESSETH THAT:
WHEREAS, the Issuer and the Indenture Trustee wish to set forth the Principal Terms of a Series of Notes with two Classes (the Class A Notes and the Class B Notes) within such Series to be issued pursuant to this Series 2021-1 Supplement; and
NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I

DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Master Indenture. Whenever used in this Series 2021-1 Supplement, the following words and phrases shall have the following meanings, and the definitions of such terms are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.
“144A Book-Entry Notes” means Series 2021-1 Notes substantially in the form attached as Exhibit A or Exhibit B hereto, with the applicable legend for 144A Book-Entry Notes required by Section 2.02 of the Master Indenture inscribed on the face thereof.
“2021-1 Series Account” means the Series Account for the Series 2021-1 Notes, established in accordance with Section 3.01 hereof and Sections 3.01 and 3.07 of the Master Indenture. The account number of the 2021-1 Series Account is 229507005.
“Average Life Date” is defined in Section 2.06(c).
“Class A Interest Rate” means two and twenty-six hundredths percent (2.26%) per annum.
“Class A Note” means an Equipment Note substantially in the form of Exhibit A.
“Class A Optional Redemption” is defined in Section 2.06(a).
“Class A Optional Redemption Date” is defined in Section 2.06(a).
“Class A Redemption Premium” is defined in Section 2.06(a).


“Class A Stated Interest Amount” means, for any Payment Date, an amount equal to the “Stated Interest Amount” (as defined in the Master Indenture) calculated with respect to the Class A Notes. The Class A Stated Interest Amount constitutes the Stated Interest Amount for the Class A Notes.
“Class B Interest Rate” means three and eight hundredths percent (3.08%) per annum.
“Class B Note” means an Equipment Note substantially in the form of Exhibit B.
“Class B Optional Redemption” is defined in Section 2.06(b).
“Class B Optional Redemption Date” is defined in Section 2.06(b).
“Class B Redemption Premium” is defined in Section 2.06(b).
“Class B Stated Interest Amount” means, for any Payment Date, an amount equal to the “Stated Interest Amount” (as defined in the Master Indenture) calculated with respect to the Class B Notes. The Class B Stated Interest Amount constitutes the Stated Interest Amount for the Class B Notes.
“Closing Date” for the Series 2021-1 Notes means June 30, 2021.
“Control Party” for the Series 2021-1 Notes means the Majority Noteholders.
“Equipment Note Purchase Agreement” means, with respect to the Equipment Notes, the Note Purchase Agreement, dated June 22, 2021, among the Issuer, TILC and the Initial Purchasers signatory thereto.
“H.15(519)” is defined in Section 2.06(c).
“Initial Purchasers” means each “Initial Purchaser” within the meaning of and as defined in the Equipment Note Purchase Agreement.
“January 2024 Payment Date” means the Payment Date occurring in January 2024.
“Liquidity Facility Provider” means Landesbank Hessen-Thüringen Girozentrale, a legal entity under German public law.
“Majority Noteholders” means with respect to the Series 2021-1 Notes, as of any date of determination, Noteholders of Series 2021-1 Notes that, individually or in the aggregate, evidence more than fifty percent (50%) of the then aggregate Outstanding Principal Balance of the Series 2021-1 Notes.
“Marginal Interest” is defined in Section 2.04(b).
“Offering Circular” means the Issuer’s final offering circular dated June 22, 2021, relating to the offering of the Series 2021-1 Notes.

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“Optional Redemption” means a voluntary prepayment by the Issuer of all of the Outstanding Principal Balance of the Series 2021-1 Notes (or a Class thereof) in accordance with the terms of this Series 2021-1 Supplement.
“Rapid Amortization Additional Interest Rate” means four percent (4%) per annum.
“Rapid Amortization Date” means the date, if any, on which the Rapid Amortization Event occurs with respect to the Series 2021-1 Notes.
“Rapid Amortization Event” means, with respect to the Series 2021-1 Notes, that the aggregate Outstanding Principal Balance of the Series 2021-1 Notes (after all payments on the Series 2021-1 Notes on the applicable Payment Date) exceeds zero on the Payment Date falling in July 2028.
“Rating Agency” means, in connection with the Series 2021-1 Notes, S&P and KBRA.
“Redemption Premium” means the Class A Redemption Premium or the Class B Redemption Premium, as applicable, which amount shall be the Redemption Premiums for each respective Class of Series 2021-1 Notes.
“Regulation S Temporary Book-Entry Notes” means Series 2021-1 Notes in the form attached as Exhibit A or Exhibit B, as the case may be, with the applicable legend for Regulation S Temporary Book-Entry Notes required by Section 2.02 of the Master Indenture inscribed on the face thereof.
“Remaining Weighted Average Life” is defined in Section 2.06(c).
“Scheduled Targeted Principal Balance” means (a) with respect to the Class A Notes and each Payment Date, the amount set forth opposite such Payment Date on Appendix B-1 to the Offering Circular under the column titled “Principal Balance ($)” and (b) with respect to the Class B Notes and each Payment Date, the amount set forth opposite such Payment Date on Appendix B-2 to the Offering Circular under the column titled “Principal Balance ($)”; provided that the Scheduled Targeted Principal Balance for each Class of the Series 2021-1 Notes is subject to adjustment from time to time pursuant to Section 3.14 of the Master Indenture.
“Series 2021-1 Final Maturity Date” means the Payment Date occurring in July 2051, which shall constitute the Final Maturity Date with respect to the Series 2021-1 Notes.
“Series 2021-1 Issuance Expenses” means the Issuance Expenses relating to the issuance of the Series 2021-1 Notes.
“Series 2021-1 Noteholders” means the Noteholders of the Series 2021-1 Notes, or any Class of such Notes, as the context may require.

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“Series 2021-1 Notes” means Notes, designated as the Class A Notes and the Class B Notes, in each case, to be issued on the Closing Date and having the terms and conditions specified in this Series 2021-1 Supplement, substantially in the respective form of Exhibit A and Exhibit B hereto, and including any and all replacements, extensions, substitutions or renewals of such Notes.
“Series 2021-1 Optional Redemption Date” is defined in Section 2.06(d).
“Series Account” means, with respect to the Series 2021-1 Notes, the 2021-1 Series Account.
“Stated Interest Amount” means, with respect to the Series 2021-1 Notes and any Payment Date, an amount equal to the Class A Stated Interest Amount and the Class B Stated Interest Amount.
“Stated Rate” means (i) with respect to the Class A Notes, the Class A Note Interest Rate and (ii) with respect to the Class B Notes, the Class B Note Interest Rate.
“Treasury Rate” is defined in Section 2.06(c).
“Unrestricted Book-Entry Notes” means Series 2021-1 Notes substantially in the form of Exhibit A or Exhibit B, with the applicable legend required by Section 2.02 of the Master Indenture for Unrestricted Book-Entry Notes inscribed on the face thereof.
ARTICLE II

THE SERIES 2021-1 NOTES
Section 2.01 Designation of Series; Series 2021-1 Notes.
(a)There is hereby created a Series of Notes under the Series 2021-1 Indenture to be known as the “Series 2021-1 Notes” or, with respect to any Equipment Notes, the “Secured Railcar Equipment Notes, Series 2021-1”.
(b)There is hereby created within the Series 2021-1 Notes two separate Classes, designated as the “Class A Notes” and the “Class B Notes”. The Series 2021-1 Notes will be issued in the initial principal balance as set forth below:
(i)the Class A Notes will be issued in the initial principal balance of Three Hundred Five Million Two Hundred Thousand and 00/100 dollars ($305,200,000); and
(ii)the Class B Notes will be issued in the initial principal balance of Nineteen Million Eight Hundred Thousand and 00/100 dollars ($19,800,000).
(c)The Class A Notes are classified as “Initial Notes”, “Series 2021-1 Notes”, “Class A Equipment Notes” and “Fixed Rate Notes”, as each such term is used in the Master Indenture. The Class B Notes are classified as “Initial Notes”, “Series 2021-1 Notes”, “Class B Equipment Notes” and “Fixed Rate Notes”, as each such term

4


is used in the Master Indenture. The Series 2021-1 Notes will be rated on the Closing Date by S&P and KBRA, and the Series 2021-1 Notes will be paid in accordance with the Flow of Funds.
(d)The first Payment Date with respect to the Series 2021-1 Notes shall be the Payment Date in August 2021.
(e)Payments of principal on the Series 2021-1 Notes shall be payable from funds on deposit in the 2021-1 Series Account or otherwise at the times and in the amounts set forth in Article III of the Master Indenture and Sections 2.05, 2.06 and 3.02 of this Series 2021-1 Supplement.
(f)The Issuer shall pay Series 2021-1 Issuance Expenses out of the proceeds of the Series 2021-1 Notes on the Closing Date and/or from Capital Contributions made to the Issuer on or prior to the Closing Date.
Section 2.02 Grant of Security Interest in 2021-1 Series Account. The Issuer hereby pledges, transfers, assigns, and otherwise conveys to the Indenture Trustee for the benefit and security of the Series 2021-1 Noteholders, and grants to the Indenture Trustee for the benefit and security of the Series 2021-1 Noteholders a security interest in and Encumbrance on, all of the Issuer’s right, title and interest, whether now existing or hereafter created or acquired and wherever located, in, to and under the assets and property described below: (a) the 2021-1 Series Account, and all funds from time to time on deposit therein; and (b) all Proceeds, accessions, profits, products, income benefits, substitutions and replacements, whether voluntary or involuntary, of and to any of the property of the Issuer described in the preceding clause (a).
Section 2.03 Authentication and Delivery.
(a)On the Closing Date, the Issuer shall sign, and shall direct the Indenture Trustee in writing pursuant to Section 2.01(b) of the Master Indenture to duly authenticate, and the Indenture Trustee, upon receiving such direction, (i) shall authenticate, subject to compliance with the conditions precedent set forth in Section 4.01 hereof, the Series 2021-1 Notes in accordance with such written directions, and (ii) subject to compliance with the conditions precedent set forth in Section 4.01 hereof, shall deliver such Series 2021-1 Notes to the Initial Purchasers in accordance with such written directions.
(b)The Series 2021-1 Notes are not being registered with the U.S. Securities and Exchange Commission and, after their sale to the Initial Purchasers in accordance with the Equipment Note Purchase Agreement, may not be sold, transferred or otherwise disposed of except in compliance with the provisions of the Master Indenture and as set forth in the applicable Series 2021-1 Notes.
(c)In accordance with Section 2.01(c) of the Master Indenture, any Class A Equipment Notes or Class B Equipment Notes of the Series 2021-1 Notes resold in reliance on Rule 144A shall be represented by a 144A Book-Entry Note. Any Class A Equipment Notes or Class B Equipment Notes of the Series 2021-1 Notes sold

5


in reliance on Regulation S shall initially be represented by a Regulation S Temporary Book-Entry Note and shall be exchangeable for interests in the related Unrestricted Book-Entry Note.
(d)The Series 2021-1 Notes shall be executed by manual or facsimile signature on behalf of the Issuer by a Responsible Officer and shall be substantially in the form of Exhibit A and Exhibit B, as the case may be, with the appropriate legend required by Section 2.02 of the Master Indenture inscribed on the face thereof.
Section 2.04 Interest Payments on the Series 2021-1 Notes.
(a)Interest on Series 2021-1 Notes. Interest on the Outstanding Principal Balance of each Series 2021-1 Note shall accrue during each Interest Accrual Period (i) at the Class A Interest Rate, in the case of the Class A Notes and (ii) at the Class B Interest Rate, in the case of the Class B Notes, and, in each case, will be calculated on the basis of a 360-day year consisting of twelve 30-day months and be due and payable in arrears on each Payment Date. Notwithstanding anything to the contrary in the Master Indenture or this Series 2021-1 Supplement, the initial Interest Accrual Period for the Series 2021-1 Notes shall begin on the Closing Date and end on (but exclude) August 19, 2021.
(b)Additional Interest. If any interest payment on any Class of the Series 2021-1 Notes is not timely paid in full when due, such overdue interest will bear interest at the applicable Stated Rate, payable as Additional Interest to the extent permitted by applicable law at the times and subject to the priorities set forth in the Flow of Funds. If a Rapid Amortization Event occurs with respect to a Class of Series 2021-1 Notes, the Issuer will also be required to pay the Noteholders of such Class of Series 2021-1 Notes, as part of, Additional Interest, interest on each Payment Date occurring on and after the Rapid Amortization Date in an amount equal to the Rapid Amortization Additional Interest Rate multiplied by the Outstanding Principal Balance of such Class of Series 2021-1 Notes (after giving effect to all payments on the relevant Class of Series 2021-1 Notes made on such day) (such interest, the “Marginal Interest”) to the extent permitted by applicable law at the times and subject to the priorities set forth in the Flow of Funds. Such Marginal Interest due (if any) shall be (i) calculated on the basis of a 360-day year consisting of twelve 30-day months and (ii) due and payable in arrears on each Payment Date on or after the Rapid Amortization Date.
Section 2.05 Principal Payments on the Series 2021-1 Notes. The Scheduled Principal Payment Amount calculated for the Series 2021-1 Notes for each Payment Date shall be payable to the Series 2021-1 Noteholders on each Payment Date from amounts deposited in the 2021-1 Series Account on such Payment Date as provided in (and subject to the provisions of) the Flow of Funds under the Master Indenture and Section 3.02 hereof. At any time that an Early Amortization Event or an Event of Default is then continuing, or if a Rapid Amortization Event with respect to the Series 2021-1 Notes has occurred, then, in addition to the foregoing, the Outstanding Principal Balance of the Series 2021-1 Notes shall be payable on each Payment Date to the

6


extent that amounts are available for such purpose in accordance with the Flow of Funds and Section 3.02 hereof.
Section 2.06 Prepayment of Principal on the Series 2021-1 Notes. No Class A Optional Redemption may occur prior to the first anniversary of the Closing Date. Subject to the restrictions in Sections 3.12 and 3.13 of the Master Indenture, the Issuer will have the option to prepay, in an Optional Redemption on any Business Day occurring on or after the first anniversary of the Closing Date (each such date, a “Class A Optional Redemption Date”), all or a portion of the Outstanding Principal Balance of the Class A Notes (such redemption, a “Class A Optional Redemption”), for a Redemption Price equal to the sum of (i) the amount of the Outstanding Principal Balance of the Class A Notes being redeemed on such Class A Optional Redemption Date, plus (ii) accrued and unpaid interest (including Additional Interest, if any) thereon to the Class A Optional Redemption Date, plus (iii) if occurring prior to the January 2024 Payment Date, a redemption premium (the “Class A Redemption Premium”) calculated as follows:
The Class A Redemption Premium will be an amount equal to the product of (x) a fraction (expressed as a percentage), the numerator of which is the amount of the Outstanding Principal Balance of the Class A Notes being redeemed and the denominator of which is the Outstanding Principal Balance of all Class A Notes immediately prior to such redemption and (y) the excess, if any, of (i) the sum of the present values of all the scheduled payments of principal and interest based upon Scheduled Targeted Principal Balances of the Class A Notes from the Class A Optional Redemption Date to and including the January 2024 Payment Date (assuming full prepayment on such date) discounted monthly to the Class A Optional Redemption Date at a rate equal to the Treasury Rate plus three-quarters of one percent (0.75%), based on a 360-day year of twelve 30-day months, over (ii) the Outstanding Principal Balance of the Class A Notes, plus any accrued but unpaid interest thereon.
(b)No Class B Optional Redemption may occur prior to the first anniversary of the Closing Date or while any Class A Notes are Outstanding unless the same are concurrently redeemed in full (or, if no Early Amortization Event has occurred and is continuing, a partial Optional Redemption of the Class B Notes may be effected if the Issuer concurrently effects an Optional Redemption in part of the Class A Notes within such Series in the same proportion as the Optional Redemption in part of the Class B Notes). Subject to the restrictions in Sections 3.12 and 3.13 of the Master Indenture, the Issuer will have the option to prepay, in an Optional Redemption on any on any Business Day occurring on or after the first anniversary of the Closing Date (each such date, a “Class B Optional Redemption Date”), all or a portion of the Outstanding Principal Balance of the Class B Notes (any such redemption, a “Class B Optional Redemption”), for a Redemption Price equal to the sum of (i) the amount of the Outstanding Principal Balance of the Class B Notes being redeemed on such Class

7


B Optional Redemption Date, plus (ii) accrued and unpaid interest (including Additional Interest, if any) thereon to the Class B Optional Redemption Date, plus (iii) if occurring prior to the January 2024 Payment Date, a redemption premium (the “Class B Redemption Premium”) calculated as follows:
The Class B Redemption Premium will be an amount equal to the product of (x) a fraction (expressed as a percentage), the numerator of which is the amount of the Outstanding Principal Balance of the Class B Notes being redeemed and the denominator of which is the Outstanding Principal Balance of all Class B Notes immediately prior to such redemption and (y) the excess, if any, of (i) the sum of the present values of all the scheduled payments of principal and interest based upon Scheduled Targeted Principal Balances of the Class B Notes from the Class B Optional Redemption Date to and including the January 2024 Payment Date (assuming full prepayment on such date), discounted monthly to the Class B Optional Redemption Date at a rate equal to the Treasury Rate plus three-quarters of one percent (0.75%), based on a 360-day year of twelve 30-day months; over (ii) the aggregate Outstanding Principal Balance of the Class B Notes plus any accrued but unpaid interest thereon.
(c)For purposes of calculating the applicable Redemption Premium, the term “Treasury Rate” means, with respect to each applicable Series 2021-1 Note, a per annum rate (expressed as a monthly equivalent and as a decimal and, in the case of United States Treasury bills, converted to a bond equivalent yield), determined to be the per annum rate equal to the monthly yield to maturity for United States Treasury securities maturing on the Average Life Date of such applicable Series 2021-1 Note as determined by interpolation between the most recent weekly average yields to maturity for two series of United States Treasury securities, (i) one maturing as close as possible to, but earlier than, the Average Life Date of such Series 2021-1 Note and (ii) the other maturing as close as possible to, but later than, the Average Life Date of such Series 2021-1 Note, in each case, as published in the most recent H.15(519) (or, if a weekly average yield to maturity of United States Treasury securities maturing on the Average Life Date of such Series 2021-1 Note is reported in the most recent H.15(519), as published in H.15(519)). “H.15(519)” means “Statistical Release H.15(519), Selected Interest Rates,” or any successor publication published by the Board of Governors of the Federal Reserve System. The most recent H.15(519) means the latest H.15(519) which is published prior to the close of business on the third (3rd) Business Day preceding the scheduled prepayment date.
The term “Average Life Date” of each applicable Series 2021-1 Note means the date which follows the prepayment date by a period equal to the Remaining Weighted Average Life of such Series 2021-1 Note. The “Remaining Weighted Average Life” of a Series 2021-1 Note at the prepayment or determination date of such Series 2021-1 Note shall be the number of days equal to the quotient obtained by dividing (a) the sum of the products obtained by multiplying (i) the Scheduled Targeted

8


Principal Balances for each remaining Payment Date (from the applicable Optional Redemption Date to the January 2024 Payment Date, in the case of the Class A Notes and the Class B Notes, in each case, assuming full prepayment on such Payment Date, as applicable) by (ii) the number of days from and including the prepayment or determination date to but excluding the scheduled payment date of such principal payment, by (b) the Outstanding Principal Balance of the applicable Series 2021-1 Notes on such date of prepayment or determination. The Issuer will calculate (or cause to be calculated) the applicable Redemption Price and Redemption Premium (if any) and deliver such information in writing to the Indenture Trustee at the time that it gives notice of an Optional Redemption pursuant to Sections 3.12 and 3.13 of the Master Indenture.
(d)Subject to the restrictions in Sections 3.12 and 3.13 of the Master Indenture, the Issuer will have the option to prepay, in an Optional Redemption on any Business Day occurring on or after the January 2024 Payment Date (each such Payment Date, a “Series 2021-1 Optional Redemption Date”), all of the Outstanding Principal Balance of the Series 2021-1 Notes, for the Redemption Price equal to the Outstanding Principal Balance of the Series 2021-1 Notes, plus accrued and unpaid interest thereon (including Additional Interest, if any) to the Series 2021-1 Optional Redemption Date; provided, however, that such Redemption Price shall not include any Redemption Premium.
(e)Any Optional Redemption may be funded with funds in the Collections Account, with the proceeds of Additional Notes or cash Capital Contributions or with any other funds of the Issuer.
(f)Notwithstanding anything herein to the contrary, no Redemption Premium will be due as a result of (i) any Permitted Discretionary Sales which, in the aggregate, are less than 25% of the sum of (x) the Adjusted Value of the Portfolio Railcars owned by the Issuer on the Initial Closing Date calculated as of the Initial Closing Date and (y) the Adjusted Value of the Portfolio Railcars acquired by the Issuer after the Initial Closing Date (if any) calculated as of the relevant Delivery Date, (ii) any Involuntary Railcar Dispositions, Purchase Option Dispositions or Scrap Value Disposition, (iii) in respect of, or during, an Early Amortization Event or if an Event of Default shall have occurred and is continuing, or (iv) a redemption of the Series 2021-1 Notes occurring on or after the January 2024 Payment Date.
Section 2.07 Manner of Payment. Except as otherwise provided in Section 2.05 of the Master Indenture, all payments on the Series 2021-1 Notes payable on each Payment Date shall be paid to the Series 2021-1 Noteholders reflected in the Register as of the related Record Date by wire transfer of immediately available funds for receipt prior to 2:00 p.m. (New York City time) on such Payment Date. Any payments received by the Series 2021-1 Noteholders after 2:00 p.m. (New York City time) on any day shall be considered to have been received on the next succeeding Business Day.
Section 2.08 Restrictions on Transfer. On the Closing Date, the Issuer shall sell (i) the Series 2021-1 Notes to the Initial Purchasers pursuant to the Equipment

9


Note Purchase Agreement and deliver such Series 2021-1 Notes in accordance herewith and therewith. Thereafter, no Series 2021-1 Note may be sold, transferred or otherwise disposed of except in compliance with the provisions of the Master Indenture. Except as provided in the Master Indenture, the Indenture Trustee shall have no obligations or duties with respect to determining whether any transfers of the Series 2021-1 Notes are made in accordance with the Securities Act or any other law; provided that with respect to Definitive Notes, the Indenture Trustee shall enforce such transfer restrictions in accordance with the terms set forth in the Series 2021-1 Indenture.
Section 2.09 Final Maturity Date. The Outstanding Principal Balance of the Series 2021-1 Notes together with all accrued and unpaid interest (including all Additional Interest) thereon, and other amounts payable by the Issuer to the Series 2021-1 Noteholders pursuant to the terms of the Series 2021-1 Indenture, shall be due and payable in full on the earlier to occur of (i) the date on which the Series 2021-1 Notes have been accelerated in accordance with the provisions of Section 4.02 of the Master Indenture and (ii) the Series 2021-1 Final Maturity Date.
Section 2.10 Hedging Requirement. For the Series 2021-1 Notes, the Minimum Hedging Amount must be greater than or equal to the product of (i) seventy percent (70%) and (ii) the aggregate outstanding principal balance of all such Series 2021-1 Notes and the Maximum Heding Amount must be equal to or less than the product of (i) one hundred and five percent (105%) and (ii) the aggregate outstanding principal balance of all such Series 2021-1 Notes.
ARTICLE III

2021-1 SERIES ACCOUNT
Section 3.01 2021-1 Series Account. The Indenture Trustee shall establish on the Closing Date pursuant to Sections 3.01 and 3.07 of the Master Indenture and shall maintain, so long as any Series 2021-1 Note is Outstanding, an Indenture Account which shall be designated as the “2021-1 Series Account,” which account shall be held in the name of the Indenture Trustee for the benefit of the Series 2021-1 Noteholders, and which account constitutes a Series Account for the Series 2021-1 Notes for all purposes under the Master Indenture. All deposits of funds for the benefit of the Series 2021-1 Noteholders from the Collections Account and the Liquidity Reserve Account shall be accumulated in, and withdrawn from, the 2021-1 Series Account in accordance with the provisions of the Series 2021-1 Indenture. Notwithstanding anything to the contrary herein, amounts on deposit in the 2021-1 Series Account shall not be invested.
Section 3.02 Distributions from 2021-1 Series Account. On each Payment Date (to the extent sufficient cleared and immediately available funds are available in the 2021-1 Series Account), the Indenture Trustee, as specified in the related Payment Date Schedule with respect to the Flow of Funds, shall distribute funds then on deposit in the 2021-1 Series Account to the Series 2021-1 Noteholders in accordance with Section 3.11 of the Master Indenture.

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Section 3.03 Liquidity Reserve Target Amount. On the Closing Date, the Liquidity Reserve Target Amount will be $0.
ARTICLE IV

CONDITIONS TO ISSUANCE
Section 4.01 Conditions to Issuance. The Indenture Trustee shall not authenticate the Series 2021-1 Notes unless (a) all conditions to the issuance of the Series 2021-1 Notes under the Equipment Note Purchase Agreement shall have been satisfied, and (b) the Issuer shall have delivered a certificate to the Indenture Trustee to the effect that all conditions set forth in the Equipment Note Purchase Agreement shall have been satisfied.
ARTICLE V

REPRESENTATIONS AND WARRANTIES
Section 5.01 Master Indenture Representations and Warranties. To induce the Series 2021-1 Noteholders to purchase the Series 2021-1 Notes, the Issuer hereby makes to the Indenture Trustee for the benefit of the Series 2021-1 Noteholders, as of the Closing Date and as of the other dates specified for the applicable representations in the Master Indenture, all of the representations and warranties set forth in Section 5.01 of the Master Indenture.
ARTICLE VI

MISCELLANEOUS PROVISIONS
Section 6.01 Ratification of Master Indenture. As supplemented by this Series 2021-1 Supplement, the Master Indenture is in all respects ratified and confirmed and the Master Indenture as so supplemented by this Series 2021-1 Supplement shall be read, taken and construed as one and the same instrument. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Master Indenture, the terms and provisions of this Series 2021-1 Supplement shall govern.
Section 6.02 Counterparts. This Series 2021-1 Supplement may be executed in two or more counterparts, and by different parties on separate counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.
Section 6.03 Governing Law. THIS SERIES 2021-1 SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND

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REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6.04 Notices to the Rating Agency. Whenever any notice or other communication is required to be given to the Rating Agencies in respect of the Series 2021-1 Notes pursuant to the Master Indenture, a Series Supplement or this Series 2021-1 Supplement, such notice or communication shall be delivered to S&P, at 55 Water Street, New York, NY 10041, Attention: S&P Surveillance (Facsimile: (212) 438-0122) and to KBRA, at 805 Third Ave., 29th Floor, New York, NY 10022, Attention: ABS Surveillance.
Section 6.05 Notices to Liquidity Facility Provider. Whenever any notice or other communication is required to be given to the Liquidity Facility Provider in respect of the Series 2021-1 Notes pursuant to the Master Indenture, a Series Supplement or this Series 2021-1 Supplement, such notice or communication shall be delivered to Landesbank Hessen-Thüringen Girozentrale, at Neue Mainzer Strasse 52-58, 60311 Frankfurt Am. Main, Germany, Attn: Fabian Huppertz, Land Transport, Telephone: +49 69 91 32 76 02, with a copy to Landesbank Hessen-Thüringen Girozentrale, New York Branch, at 420 Fifth Avenue, New York, NY 10018, Attention: Land Transport Finance, Telephone: 212-703-5333, Facsimile: 212-703-5256, Email: Joe.Devoe@helabany.com; Alec.Tasooji@helabany.com.
Section 6.06 Amendments and Modifications. The terms of this Series 2021-1 Supplement may be waived, modified or amended only in a written instrument signed by each of the Issuer and the Indenture Trustee in accordance with Article IX of the Master Indenture. Amendments, waivers and modifications of this Series 2021-1 Supplement that constitute matters set forth in clauses (i) through (viii) of Section 9.02(a) of the Master Indenture, may be effected only with the prior written Direction of Noteholders of each Outstanding Series 2021-1 Note adversely affected thereby.
[Signature pages follow]

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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Series 2021-1 Supplement to be duly executed and delivered all as of the day and year first above written.
TRINITY RAIL LEASING 2021 LLC

By: Trinity Industries Leasing Company, its manager


By: /s/ Sara E. McCoy    
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director




U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee


By: /s/ Chris McKim    
Name: Chris McKim
Title: Vice President



Exhibit 10.5.3
EXECUTION VERSION




______________________________________________________________________
PURCHASE AND CONTRIBUTION AGREEMENT
by and among
TRINITY RAIL LEASING WAREHOUSE TRUST,
TRINITY INDUSTRIES LEASING COMPANY
and
TRINITY RAIL LEASING 2021 LLC
Dated as of June 30, 2021

______________________________________________________________________

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ARTICLE I DEFINITIONS 1
Section 1.1 General 1
Section 1.2 Specific Terms 2
ARTICLE II CONVEYANCE OF THE RAILCARS AND LEASES 4
Section 2.1 Conveyance of the Railcars and Leases 4
ARTICLE III CONDITIONS OF CONVEYANCE 6
Section 3.1 Conditions Precedent to Conveyance 6
Section 3.2 Conditions Precedent to All Conveyances 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES 8
Section 4.1 Representations and Warranties of TRLWT Seller - General 8
Section 4.2 Representations and Warranties of TILC Seller - General 10
Section 4.3 Representations and Warranties of TILC - Assets 12
Section 4.4 Representations and Warranties of the Purchaser 14
Section 4.5 Indemnification 16
Section 4.6 Special Indemnification by TILC regarding Exercise of Setoff by Customers 18
ARTICLE V COVENANTS OF SELLER 18
Section 5.1 Protection of Title of the Purchaser 18
Section 5.2 Other Liens or Interests 20
ARTICLE VI MISCELLANEOUS 20
Section 6.1 Amendment 20
Section 6.2 Notices 21
Section 6.3 Merger and Integration 21
Section 6.4 Severability of Provisions 21
Section 6.5 Governing Law 21
Section 6.6 Counterparts 22
Section 6.7 Binding Effect; Assignability 22
Section 6.8 Third Party Beneficiaries 22
Section 6.9 Term 23

EXHIBITS

EXHIBIT A FORM OF BILL OF SALE
EXHIBIT B FORM OF ASSIGNMENT AND ASSUMPTION
EXHIBIT C FORM OF DELIVERY SCHEDULE


PURCHASE AND CONTRIBUTION AGREEMENT
THIS PURCHASE AND CONTRIBUTION AGREEMENT is made as of June 30, 2021 (this “Agreement”) by and among TRINITY RAIL LEASING WAREHOUSE TRUST, a Delaware statutory trust (“TRLWT” or the “TRLWT Seller”), TRINITY INDUSTRIES LEASING COMPANY, a Delaware corporation (“TILC” or the “TILC Seller”; TRLWT, and TILC are sometimes hereinafter collectively referred to as the “Sellers” or individually as a “Seller”) and TRINITY RAIL LEASING 2021 LLC, a Delaware limited liability company (the “Purchaser”).
W I T N E S S E T H:
WHEREAS, the Purchaser has agreed to purchase from the Sellers from time to time, and the Sellers have agreed to Sell (as hereinafter defined) to the Purchaser from time to time, certain of its Railcars, related Leases and Related Assets (each as hereinafter defined) related thereto on the terms set forth herein.
WHEREAS, during the period prior to their sale hereunder, TILC has acted as manager and servicing agent for TRLWT, pursuant to the TRLWT Management Agreement (as hereinafter defined), with respect to the Railcars, related Leases and Related Assets that TRLWT may Sell from time to time hereunder (TILC in such capacity, the “TRLWT Manager”).
WHEREAS, TILC may also wish from time to time to conduct a Sale/Contribution (as hereinafter defined) of certain of its Railcars, related Leases and Related Assets and the Purchaser may wish to purchase from and accept such contribution to the capital of the Purchaser on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Purchaser and each Seller intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1    General. The specific terms defined in this Article include the plural as well as the singular. Words herein importing a gender include the other gender. References herein to “writing” include printing, typing, lithography, and other means of reproducing words in visible form. References to agreements and other contractual instruments include all subsequent amendments thereto or changes therein entered into in accordance with their respective terms. References herein to Persons include their successors and assigns permitted hereunder or under the Master Indenture (as defined herein). The terms “include” or “including” mean “include without limitation” or “including without limitation”. The words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision, and Article, Section, Schedule and Exhibit references,
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unless otherwise specified, refer to Articles and Sections of and Schedules and Exhibits to this Agreement. Capitalized terms used herein, but not defined herein shall have the respective meanings assigned to such terms in the Master Indenture.
Section 1.2    Specific Terms. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:
“Appraised Value” means the appraised value of a Railcar as set forth in the Appraisal thereof.
“Assignment and Assumption” means an Assignment and Assumption executed by the applicable Seller, with countersignature block set forth thereon for execution by the Purchaser, substantially in the form of Exhibit B attached hereto.
“Bill of Sale” means a Bill of Sale executed by a Seller substantially in the form of Exhibit A attached hereto.
“Contribution” has the meaning set forth in Section 2.1(a).
“Convey” means to Sell and/or conduct a Sale/Contribution of Railcars, related Leases and Related Assets hereunder.
“Conveyance” means, collectively, a Sale and/or Sale/Contribution of Railcars, related Leases and Related Assets by a Seller to the Purchaser.
“Delivery Schedule” means a schedule, substantially in the form of the initial schedule delivered on the Closing Date and attached as Exhibit C hereto, in each case duly executed and delivered by a Seller to the Purchaser on a Delivery Date, which shall identify the Railcars to be Conveyed on such Delivery Date and identify each Lease relating to any such Railcar.
“Excluded Amounts” has the meaning set forth in Section 4.5(a).
“Indemnified Person” has the meaning set forth in Section 4.5(a).
“Master Indenture” means the Master Indenture between the Purchaser, as Issuer, and U.S. Bank National Association, as Indenture Trustee, dated as of the date hereof, as supplemented or amended from time to time.
“Miscellaneous Items” means receivables, prepaid expenses, current assets, deferred origination costs, receivables, deferred tax assets, non-current assets, accounts payable and accrued liabilities, deferred tax liabilities, unearned contract revenue, accrued interest, accrued professional fees, and accrued property and casualty insurance.
“Purchase Price” means, with respect to any Railcars, related Leases and Related Assets conveyed to the Purchaser from time to time pursuant hereto, an amount equal to the aggregate Appraised Value of the Railcars so Conveyed.
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“Purchaser” has the meaning specified in the Preamble.
“Related Assets” means, with respect to any Railcar or Lease that is Conveyed hereunder on any Delivery Date, all of the applicable Seller’s right, title and interest in and to the following (as applicable):
(a)with respect to such Railcar, (i) all licenses, manufacturer’s warranties and other warranties, Supporting Obligations, Payment Intangibles, Chattel Paper, General Intangibles and all other rights and obligations related to such Railcar, (ii) all Railroad Mileage Credits allocable to such Railcar and any payments in respect of such credits accruing on or after the applicable Delivery Date, (iii) all tort claims or any other claims of any kind or nature related to such Railcar and any payments in respect of such claims, (iv) all Marks attaching to such Railcar (including as evidenced by any SUBI Certificate issued by the Marks Company), it being understood that the Marks are owned by the Marks Company and are not being conveyed hereby, (v) all other payments owing by any Person (including any railroads or similar entities) in respect of or attributable to such Railcar or the use, loss, damage, casualty, condemnation of such Railcar or the Marks associated therewith, in each case whether arising by contract, operation of law, course of dealing, industry practice or otherwise, and (vi) without duplication, any Miscellaneous Items relating to such Railcar; and
(b)with respect to such Lease, all Supporting Obligations, Payment Intangibles, Chattel Paper, General Intangibles and all other rights and obligations related to any such Lease, including, without limitation, (i) all rights, powers, privileges, options and other benefits of the applicable Seller to receive moneys and other property due and to become due under or pursuant to such Lease, including, without limitation, all rights, powers, privileges, options and other benefits to receive and collect rental payments, income, revenues, profits and other amounts, payments, tenders or security (including any cash collateral) from any other party thereto, (ii) all rights, powers, privileges, options and other benefits of the applicable Seller to receive proceeds of any casualty insurance, condemnation award, indemnity, warranty or guaranty with respect to such Lease, (iii) all claims for damages arising out of or for breach of or default under such Lease, (iv) the rights, powers, privileges, options and other benefits of the applicable Seller to perform under such Lease, to compel performance and otherwise exercise all remedies thereunder and to terminate any such Lease, and (v) without duplication, any Miscellaneous Items relating to such Lease.
“Sale” means, with respect to any Person, the sale, transfer, assignment or other conveyance, of the assets or property in question by such Person, and “Sell” means that such Person sells, transfers, assigns or otherwise conveys the assets or property in question.
“Sale/Contribution” has the meaning specified in Section 2.1(a).
“TRLWT Management Agreement” means the Fourth Amendment and Restatement, dated as of March 15, 2018, of the Operation, Maintenance, Servicing and
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Remarketing Agreement dated as of June 27, 2002 between TRLWT and TILC, as manager thereunder.
“TRLWT Manager” has the meaning specified in the Recitals.
ARTICLE II
CONVEYANCE OF THE RAILCARS AND LEASES
Section 2.1    Conveyance of the Railcars and Leases.
(a)Subject to the terms and conditions of this Agreement, on and after the date of this Agreement:
(i)the TRLWT Seller hereby agrees to Sell to the Purchaser, without recourse (except to the extent specifically provided herein or in the applicable Bill of Sale and Assignment and Assumption), all right, title and interest of the TRLWT Seller in and to (A) certain Railcars and related Leases as identified from time to time on a Delivery Schedule delivered by the TRLWT Seller in accordance with this Agreement and (B) all Related Assets with respect thereto, and
(ii)the TILC Seller hereby agrees to Sell to the Purchaser, without recourse (except to the extent specifically provided herein or in the applicable Bill of Sale and Assignment and Assumption), all right, title and interest of the TILC Seller in and to (A) certain Railcars and related Leases as identified from time to time on a Delivery Schedule delivered by the TILC Seller in accordance with this Agreement and (B) all Related Assets with respect thereto; provided, that if the TILC Seller is the sole equity Member of the Purchaser at the time of such sale, and to the extent that (x) the portion of the Purchase Price for such sale paid by the Purchaser to the TILC Seller in cash plus the total dollar amount of Subordinated Notes issued to the TILC Seller at the time of such sale is less than (y) the total dollar amount of the Purchase Price, the balance shall be deemed to have been contributed (a “Contribution”) by the TILC Seller as capital to the Purchaser (such transaction in the aggregate, a “Sale/Contribution”).
(b)The Purchaser in each case hereby agrees to purchase, acquire, accept and assume (including by an assumption of the obligations of the “lessor” under such Leases), all right, title and interest of each such Seller in and to such Railcars, related Leases and Related Assets. Each Seller hereby acknowledges that each Conveyance by it to the Purchaser hereunder is absolute and irrevocable, without reservation or retention of any interest whatsoever by such Seller.
(c)The Sales of Railcars, related Leases and Related Assets by the TRLWT Seller to the Purchaser and the Sales or Sales/Contributions (as the case may be) of Railcars, related Leases and Related Assets by the TILC Seller to the Purchaser pursuant to this Agreement are, and are intended to be, absolute and unconditional
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assignments and conveyances of ownership (free and clear of any Encumbrances) of all of the applicable Seller’s right, title and interest in, to and under such Railcars, related Leases and Related Assets for all purposes and, except to the extent specifically provided herein or in the applicable Bill of Sale and Assignment and Assumption, without recourse.
(d)It is the intention of each Seller and the Purchaser (i) that all Conveyances of Railcars, related Leases and Related Assets be true sales and/or contributions, as applicable, constituting absolute assignments and “true sales” for bankruptcy law purposes by the applicable Seller to the Purchaser, that are absolute and irrevocable and that provide the Purchaser with the full benefits of ownership of the assets so Conveyed and (ii) that the Railcars, related Leases and Related Assets that are Conveyed to the Purchaser pursuant to this Agreement shall not be part of the applicable Seller’s estate in the event of the filing of a bankruptcy petition by or against such Seller under any bankruptcy or similar law. None of the Sellers or the Purchaser intends that (x) the transactions contemplated hereunder be, or for any purpose be characterized as, loans from the Purchaser to the applicable Seller or (y) any Conveyance of Railcars, related Leases and/or Related Assets by any Seller to the Purchaser be deemed a grant of a security interest in the assets so Conveyed by such Seller to the Purchaser to secure a debt or other obligation of such Seller (except in the limited circumstance contemplated in subsection (e) immediately below).
(e)In the event that any Conveyances pursuant to this Agreement are deemed to be a secured financing (or are otherwise determined not to be absolute assignments of all of the applicable Seller’s right, title and interest in, to and under the Railcars, related Leases and Related Assets so Conveyed, or purportedly so Conveyed hereunder), then (i) the applicable Seller shall be deemed hereunder to have granted to the Purchaser, and such Seller does hereby grant to the Purchaser, a security interest in all of such Seller’s right, title and interest in, to and under such Railcars, related Leases and Related Assets so Conveyed or purported to be Conveyed, securing the purported repayment obligation presumably deemed to exist in respect of such deemed secured financing, and (ii) this Agreement shall constitute a security agreement under applicable law.
(f)The Sellers shall on the Closing Date and on any other relevant Delivery Date, deliver to the Purchaser a Delivery Schedule identifying the Railcars and Leases to be Conveyed by such Seller to the Purchaser on such date.
(g)The price paid for Railcars, related Leases and Related Assets which are Conveyed hereunder shall be the Purchase Price with respect thereto. Such Purchase Price shall be paid:
(i)in the case of the TRLWT Seller, by means of the Purchaser’s immediate cash payment in the full amount of the Purchase Price to the TRLWT Seller by wire transfer on the Closing Date (or other applicable Delivery Date) in respect of which the TRLWT Seller has delivered a Delivery Schedule, and
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(ii)in the case of the TILC Seller, by means of (A) the Purchaser’s immediate cash payment of the portion of the Purchase Price that the Purchaser has available to it for such purpose (including from net proceeds derived from its issuance of the Equipment Notes on such Delivery Date, or from Net Disposition Proceeds held in the Optional Reinvestment Account), to the TILC Seller by wire transfer and (B) if applicable, the Purchaser’s issuance of Subordinated Notes to the TILC Seller, in each case on the Closing Date (or other applicable Delivery Date) in respect of which the TILC Seller has delivered a Delivery Schedule, with the Contributed remainder of such Purchase Price to be reflected by means of proper accounting entries being entered upon the accounts and records of the TILC Seller and the Purchaser,
with such wire transfers in each case to be made to an account designated by the applicable Seller to the Purchaser on or before the applicable Delivery Date.
(h)On and after each Delivery Date and related Purchase Price payment as aforesaid, the Purchaser shall own the Railcars, related Leases and Related Assets Conveyed to the Purchaser on such date, and the Seller shall not take any action inconsistent with such ownership and shall not claim any ownership interest in such assets.
(i)Until the replacement of TILC as Servicer pursuant to the terms of the Servicing Agreement, TILC, as Servicer, shall conduct the administration, management and collection of the Railcars, related Leases and Related Assets Conveyed to Purchaser pursuant hereto and shall take, or cause to be taken, all such actions as may be necessary or advisable to administer, manage and collect such Conveyed Railcars, related Leases and Related Assets, from time to time, all in accordance with the terms of the Servicing Agreement.
(j)On each Delivery Date, the applicable Seller shall deliver or cause to be delivered to the Purchaser (or to the Servicer on behalf of the Purchaser in accordance with Section 2.1(i) above) each item required on such date to be delivered by such Seller and any Chattel Paper representing or evidencing the Leases being Conveyed on such Delivery Date.
ARTICLE III
CONDITIONS OF CONVEYANCE
Section 3.1    Conditions Precedent to Conveyance. Each Conveyance hereunder is subject to the condition precedent that the Purchaser shall have received, and the Indenture Trustee shall have received copies of, all of the following on or before the applicable Delivery Date, in form and substance satisfactory to the Purchaser:
(i)a Delivery Schedule executed by the applicable Seller and setting forth the Railcars and Leases to be Conveyed on the applicable Delivery Date pursuant to this Agreement;
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(ii)a related Bill of Sale;
(iii)a related Assignment and Assumption;
(iv)an Appraisal of the Railcars to be conveyed, with such Appraisal dated no earlier than 90 days prior to the applicable Delivery Date (or, in the case of the first Delivery Date relating to this Agreement, dated no earlier than March 31, 2021);
(v)copies of proper UCC financing statements, accurately describing the Conveyed Railcars and Leases and naming the applicable Seller as the “Debtor” and the Purchaser as “Secured Party”, or applicable filings with the STB or with the Registrar General of Canada, or other similar instruments or documents, all in such manner and in such places as may be required by law or as may be necessary or, in the opinion of the Purchaser or the Indenture Trustee (acting at the written direction of the Requisite Majority), desirable to perfect the Purchaser’s interest in all Conveyed Railcars, related Leases and Related Assets (provided that no such filings shall be required to be made in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada);
(vi)copies of proper UCC financing statement terminations or partial terminations, STB or Registrar General of Canada filings, accurately describing the Conveyed Railcars and Leases, or other similar instruments or documents, in form and substance sufficient for filing under applicable law of any and all jurisdictions as may be necessary to effect or evidence a release or termination of any pre-existing Encumbrance evidenced by an existing filing of record in the applicable UCC, STB or Registrar General of Canada filing office against the Conveyed Railcars, related Leases and Related Assets;
(vii)in the case of a Delivery Date occurring in connection with the Closing Date for a Series of Equipment Notes, a confirmation or written advice to similar effect from counsel to the Purchaser and addressed to the Indenture Trustee, reasonably acceptable to the Indenture Trustee, that the Conveyance constitutes a true sale and that the Purchaser would not be consolidated in connection with a bankruptcy of any Seller; and
(viii)in the case of a Delivery Date occurring in connection with the Closing Date for a Series of Equipment Notes, such deliveries, and the satisfaction of such other conditions, as are set forth in the applicable Note Purchase Agreement or otherwise required for the issuance of such Series.
Section 3.2    Conditions Precedent to All Conveyances. The Conveyances to take place on any Delivery Date hereunder shall be subject to the further conditions precedent that:
(a)The following statements shall be true:
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(i)the representations and warranties of each applicable Seller contained in Article IV shall be true and correct on and as of such Delivery Date, both before and after giving effect to the Conveyance to take place on such Delivery Date and to the application of proceeds therefrom, as though made on and as of such date; and
(ii)such Seller shall be in compliance with all of its covenants and other agreements set forth in this Agreement and the other Operative Agreements to which it is a party.
(b)The Purchaser shall have received a Delivery Schedule, dated the date of the applicable Delivery Date, executed by the applicable Seller, listing the Railcars and Leases being Conveyed on such date by such Seller.
(c)The applicable Seller shall have taken such other action, including delivery of approvals, consents, opinions, documents and instruments to the Purchaser, as the Purchaser or the Indenture Trustee (acting at the written direction of the Requisite Majority) may reasonably request.
(d)The applicable Seller shall have taken all steps necessary under all applicable law in order to Convey to the Purchaser the Railcars described on the applicable Delivery Schedules, all Leases related to such Railcars and all Related Assets related to such Railcars and/or Leases, and upon the Conveyance of such Railcars, related Leases and Related Assets from the applicable Seller to the Purchaser pursuant to the terms hereof, the Purchaser will have acquired on such date good and marketable title to and a valid and perfected ownership interest in the Conveyed Railcars, related Leases and Related Assets, free and clear of any Encumbrance (other than Permitted Encumbrances).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1    Representations and Warranties of TRLWT Seller—General. The TRLWT Seller makes the following representations and warranties for the benefit of the Purchaser, the Indenture Trustee, each Noteholder and each other Secured Party, on which the Purchaser relies in acquiring the Railcars, related Leases and Related Assets Conveyed by the TRLWT Seller hereunder. Such representations are made as of each Delivery Date and at such other times specified below.
(a)TRLWT is a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware, is duly licensed or qualified and in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its ability to carry on its business as now conducted or to execute, deliver and perform its obligations under the TRLWT Agreements, has the power and authority to carry on its business as now conducted, and has the requisite power and authority to execute, deliver and perform its obligations under the TRLWT Agreements.
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(b)The TRLWT Agreements have been duly authorized by all necessary entity action by TRLWT, and duly executed and delivered by TRLWT, and (assuming the due authorization, execution and delivery by each other party thereto) constitute the legal, valid and binding obligations of TRLWT, enforceable against TRLWT in accordance with their respective terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity.
(c)The execution, delivery and performance by TRLWT of each TRLWT Agreement and compliance by TRLWT with all of the provisions thereof do not and will not contravene or, in the case of clause (iii), constitute (alone or with notice, or lapse of time or both) a default under or result in any breach of, or result in the creation or imposition of any Encumbrance (other than pursuant to this Agreement) upon any property of TRLWT pursuant to, (i) any law or regulation, or any order of any court or governmental authority or agency applicable to or binding on TRLWT or any of its properties, or (ii) the provisions of, or constitute a default by TRLWT under, its certificate of trust or trust agreement or (iii) any indenture, mortgage, contract or other agreement or instrument to which TRLWT is a party or by which TRLWT or any of its properties may be bound or affected except, with respect to clause (iii), where such contravention, default or breach would not reasonably be expected to materially adversely affect TRLWT’s ability to perform its obligations under the TRLWT Agreements or materially adversely affect its financial condition or business.
(d)There are no proceedings pending or, to the knowledge of TRLWT, threatened against TRLWT in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would reasonably be expected to materially adversely affect TRLWT’s ability to perform its obligations under the TRLWT Agreements or materially adversely affect its financial condition or business.
(e)TRLWT is not (x) in violation of any term of any charter instrument or operating agreement or (y) in violation or breach of or in default under any other agreement or instrument to which it is a party or by which it may be bound except, in the case of clause (y), where such violation, breach or default would not reasonably be expected to materially adversely affect TRLWT’s ability to perform its obligations under the TRLWT Agreements or materially adversely affect its financial condition or business. TRLWT is in compliance with all laws, ordinances, governmental rules, regulations, orders, judgments, decrees, determinations and awards to which it is subject, the failure to comply with which would have a material and adverse effect on its operations or condition, financial or otherwise, or would impair the ability of TRLWT to perform its obligations under the TRLWT Agreements, and has obtained all licenses, permits, franchises and other governmental authorizations material to the conduct of its business.
(f)No consent, approval or authorization of, or filing, registration or qualification with, or the giving of notice to, any trustee or any holder of indebtedness of TRLWT or any governmental authority on the part of TRLWT is required in the United
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States in connection with the execution and delivery by TRLWT of the TRLWT Agreements (other than as contemplated thereby), or is required to be obtained in order for TRLWT to perform its obligations thereunder in accordance with the terms thereof, other than (i) as may be required under applicable laws, ordinances, governmental rules and regulations to be obtained, given, accomplished or renewed at any time after the applicable Delivery Date in connection with the performance of its obligations under the TRLWT Agreements and which are routine in nature and are not normally applied for prior to the time they are required, and which TRLWT has no reason to believe will not be timely obtained, and (ii) as may have been previously obtained in accordance with clause (i) immediately above.
(g)The location of TRLWT (within the meaning of Article 9 of the UCC) is in the State of Delaware. TRLWT has not been known by any name other than Trinity Rail Leasing Warehouse Trust and Trinity Rail Leasing Trust II, and is not known by any trade names.
(h)TRLWT is solvent and will not become insolvent after giving effect to any Conveyance contemplated by this Agreement; after giving effect to each Conveyance contemplated by this Agreement, TRLWT will have an adequate amount of capital to conduct its business in the foreseeable future; and TRLWT does not intend to incur, nor believe that it has incurred, debts beyond its ability to pay as they mature.
(i)TRLWT will treat the transactions effected by this Agreement as sales of assets to the Purchaser in accordance with U.S. GAAP. TRLWT’s financial records shall reflect that the Railcars and Leases Conveyed hereunder have been Conveyed to the Purchaser, are no longer owned by TRLWT and are not intended to be available to the creditors of TRLWT.
Section 4.2    Representations and Warranties of TILC Seller—General. The TILC Seller makes the following representations and warranties for the benefit of the Purchaser, the Indenture Trustee, each Noteholder and each other Secured Party, on which the Purchaser relies in acquiring the Railcars, related Leases and Related Assets Conveyed by the TILC Seller hereunder. Such representations are made as of each Delivery Date and at such other times specified below.
(a)TILC is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, is duly licensed or qualified and in good standing in each jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on its ability to carry on its business as now conducted or as contemplated to be conducted or to execute, deliver and perform its obligations under the TILC Agreements, has the power and authority to carry on its business as now conducted and as contemplated to be conducted, and has the requisite power and authority to execute, deliver and perform its obligations under the TILC Agreements.
(b)The TILC Agreements have been duly authorized by all necessary corporate action by TILC, and duly executed and delivered by TILC, and (assuming the
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due authorization, execution and delivery by each other party thereto) constitute the legal, valid and binding obligations of TILC, enforceable against TILC in accordance with their respective terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity.
(c)The execution, delivery and performance by TILC of the TILC Agreements and compliance by TILC with all of the provisions thereof do not and will not contravene or, in the case of clause (iii), constitute (alone or with notice, or lapse of time or both) a default under or result in any breach of, or result in the creation or imposition of any Encumbrance (other than pursuant to this Agreement) upon any property of TILC pursuant to, (i) any law or regulation, or any order, judgment, decree, determination or award of any court or governmental authority or agency applicable to or binding on TILC or any of its properties, or (ii) the provisions of its certificate of incorporation or bylaws or (iii) any indenture, mortgage, contract or other agreement or instrument to which TILC is a party or by which TILC or any of its properties may be bound or affected except, with respect to clause (iii), where such contravention, default or breach would not reasonably be expected to materially adversely affect TILC’s ability to perform its obligations under the TILC Agreements or materially adversely affect its financial condition or business.
(d)There are no proceedings pending or, to the knowledge of TILC, threatened against TILC in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would reasonably be expected to materially adversely affect TILC’s ability to perform its obligations under the TILC Agreements or materially adversely affect its financial condition or business.
(e)TILC is not (x) in violation of any term of any charter instrument or bylaw or (y) in violation or breach of or in default under any other agreement or instrument to which it is a party or by which it or any of its property may be bound except in the case of clause (y) where such violation, breach or default would not reasonably be expected to materially adversely affect TILC’s ability to perform its obligations under the TILC Agreements or materially adversely affect its financial condition or business. TILC is in compliance with all laws, ordinances, governmental rules, regulations, orders, judgments, decrees, determinations and awards to which it is subject, the failure to comply with which would reasonably be expected to have a material and adverse effect on its operations or condition, financial or otherwise, or would impair the ability of TILC to perform its obligations under the TILC Agreements, and has obtained all required licenses, permits, franchises and other governmental authorizations material to the conduct of its business.
(f)No consent, approval or authorization of, or filing, registration or qualification with, or the giving of notice to, any trustee or any holder of indebtedness of TILC or any governmental authority on the part of TILC is required in the United States in connection with the execution and delivery by TILC of the TILC Agreements (other than as contemplated thereby), or is required to be obtained in order for TILC to perform
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its obligations thereunder in accordance with the terms thereof, other than (i) as may be required under applicable laws, ordinances, governmental rules and regulations to be obtained, given, accomplished or renewed at any time after the applicable Delivery Date in connection with the performance of its obligations under the TILC Agreements and which are routine in nature and are not normally applied for prior to the time they are required, and which TILC has no reason to believe will not be timely obtained, and (ii) as may have been previously obtained in accordance with clause (i) immediately above.
(g)The location of TILC (within the meaning of Article 9 of the UCC) is in the State of Delaware. TILC has not been known by any name other than Trinity Industries Leasing Company within the past five (5) years.
(h)TILC is solvent and will not become insolvent after giving effect to any Conveyance contemplated by this Agreement, and after giving effect to any Conveyances contemplated by this Agreement, TILC will have an adequate amount of capital to conduct its business in the foreseeable future, and TILC does not intend to incur, nor believe that it has incurred, debts beyond its ability to pay as they mature.
(i)TILC will treat the transactions effected by this Agreement as sales of assets to, and/or contributions of assets to the capital of, the Purchaser in accordance with U.S. GAAP. TILC’s financial records shall reflect that the Railcars and Leases Conveyed hereunder have been Conveyed to the Purchaser, are no longer owned by TILC and are not intended to be available to the creditors of TILC.
Section 4.3    Representations and Warranties of TILC—Assets. The following representations and warranties are made (i) with respect to each Delivery Date on which TRLWT is to Convey assets to the Purchaser, by TILC, in its capacity as TRLWT Manager, with respect to each representation expressed as a representation of TRLWT as “Seller”, and (ii) with respect to each Delivery Date on which TILC is to Convey assets to the Purchaser, by TILC for its own account, and in each case are made for the benefit of the Purchaser, the Indenture Trustee, each Noteholder and each other Secured Party as of the date of any Delivery Schedule delivered by the applicable Seller to the Purchaser and solely with respect to the Railcars and Leases that are referred to in such Delivery Schedule and the Related Assets in respect of such Railcars and Leases.
(a)To the best knowledge of the applicable Seller, no casualty event or other event that may constitute a Total Loss or makes repair of the applicable Railcar uneconomic or renders such Railcar unfit for commercial use or constitutes theft or disappearance of the applicable Railcar has occurred with respect to a Railcar being Conveyed.
(b)(i) The applicable Seller has, and the Bill of Sale to be delivered on the Delivery Date shall convey to the Purchaser, all legal and beneficial title to the Railcars (and Related Assets in respect of such Railcars) that are being Conveyed, free and clear of all Encumbrances (other than Permitted Encumbrances of the type described in clauses (ii), (iii), (iv), (vi), (vii), (viii), (ix) and (x) of the definition thereof),
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and such conveyance constitutes a valid and absolute transfer (each such contribution or sale, as the case may be, constituting a “true sale” for bankruptcy law purposes) of all right, title and interest of such Seller in, to and under the Railcars (and Related Assets in respect of such Railcars) being Conveyed and will not be void or voidable under any applicable law; (ii) such Seller has, and the Assignment and Assumption to be delivered on the Delivery Date shall assign to the Purchaser, all legal and beneficial title to the Leases (and Related Assets in respect of such Leases) that are being Conveyed, free and clear of all Encumbrances (other than Permitted Encumbrances of the type described in clauses (ii), (iii), (iv), (vi), (vii), (viii), (ix) and (x) of the definition thereof), and such assignment constitutes a valid and absolute transfer (each such contribution or sale, as the case may be, constituting a “true sale” for bankruptcy law purposes) of all right, title and interest of such Seller in, to and under the Leases (and Related Assets in respect of such Leases) being Conveyed and will not be void or voidable under any applicable law; (iii) the Railcars being Conveyed on a Delivery Date are subject to Leases to the extent required under the Master Indenture in respect of such Conveyance, and (iv) all Leases relating to such Railcars are on rental and other terms that are no different, taken as a whole, from those for similar Railcars in the rest of the TILC Fleet.
(c)All sales, use or transfer taxes, if any, due and payable upon the Conveyance of the Railcars, related Leases and Related Assets being Conveyed on the applicable Delivery Date will have been paid or such transactions will then be exempt from any such taxes and (i) TILC, in the case of the TILC Seller or (ii) the TRLWT Manager, in the case of the TRLWT Seller, will cause any required forms or reports in connection with such taxes to be filed in accordance with applicable laws and regulations.
(d)The Railcars being Conveyed are substantially similar, in terms of objectively identifiable characteristics that are relevant for purposes of the services to be performed by TILC under the Servicing Agreement, to the equipment in the TILC Fleet.
(e)The applicable Seller is not in default of its obligations as “lessor” (or other comparable capacity) under any Lease, and, to the best of such Seller’s knowledge, there are (i) no defaults existing as of the date of Conveyance by any Lessee under any Lease, except such defaults that are not payment defaults (except to a de minimis extent (but giving effect to any applicable grace periods)) and are not material defaults under the applicable Lease, and (ii) no claims or liabilities arising as a result of the operation or use of any Railcar prior to the date hereof, as to which the Purchaser would be or become liable, except for ongoing maintenance and other obligations of the “lessor” provided for under full-service Leases, which obligations are required to be performed by the Servicer pursuant to the Servicing Agreement.
(f)None of the Railcars being Conveyed are subject to a purchase option under the terms of the related Lease except as described in the related Delivery Schedule, and each such purchase option is a Permitted Purchase Option.
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(g)All written information provided by the applicable Seller or any Affiliate of such Seller to the Appraiser with respect to the Railcars and Leases being Conveyed is true and correct in all material respects. All written information provided by such Seller or any Affiliate of such Seller to Deloitte & Touche LLP with respect to the Leases is true and correct in all material respects and accurately reflects the terms of the Leases. To the extent the written information referred to in this clause (g) was provided to the Appraiser and Deloitte & Touche LLP, in each case for their use in connection with their services rendered in connection with Conveyances contemplated hereby, such entities have been provided with the same written information (or relevant portions thereof).
(h)None of the Leases contain any renewal or extension options except for such options that are described in the Delivery Schedule.
(i)All information provided in the applicable Delivery Schedule, including each schedule thereto, is true and correct on and as of the related Delivery Date, including without limitation, all information provided therein with respect to each Railcar purported to be covered thereby and all information provided therein with respect to each Lease relating to any such Railcar. All other information concerning the Railcars, related Leases and Related Assets covered by the applicable Delivery Schedule that was provided to the Issuer or the Indenture Trustee prior to the related Delivery Date was true and correct in all material respects as of the date it was so provided.
(j)No Default, Event of Default or Servicer Termination Event has occurred and is continuing on the Delivery Date, and no event that, with the giving of notice, the passage of time or both, would constitute a Servicer Termination Event has occurred and is continuing on the Delivery Date.
Section 4.4    Representations and Warranties of the Purchaser. The Purchaser makes the following representations and warranties for the benefit of each Seller on which such Seller relies in Conveying Railcars, related Leases and Related Assets to the Purchaser hereunder. Such representations are made as of each applicable Delivery Date.
(a)Organization and Good Standing. The Purchaser has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of Delaware, with the power and authority to own its properties and to conduct its business as such properties are currently owned and such business is currently conducted, and had at all relevant times, and has, full power, authority and legal right to acquire and own the Railcars and Leases Conveyed hereunder.
(b)Due Qualification. The Purchaser is duly qualified (except where the failure to be so qualified would not have a material adverse effect on its ability to carry on its business as now conducted or as contemplated to be conducted) to do business as a foreign limited liability company in good standing, and has obtained all
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necessary licenses (except to the extent that such failure to obtain such licenses is inconsequential) and approvals in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, licenses and/or approvals.
(c)Power and Authority. The Purchaser has the power, authority and legal right to execute and deliver this Agreement and to carry out the terms hereof and to acquire the Railcars and Leases Conveyed hereunder; and the execution, delivery and performance of this Agreement and all of the documents required pursuant hereto have been duly authorized by the Purchaser by all necessary action.
(d)No Consent Required. The Purchaser is not required to obtain the consent of any other Person, or any consent, license (except to the extent that such failure to obtain such licenses is inconsequential), approval or authorization or registration or declaration with, any governmental authority, bureau or agency in connection with the execution, delivery or performance of this Agreement and the other Operative Agreements to which it is a party, except for such as have been obtained, effected or made.
(e)Binding Obligation. This Agreement constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation or other similar laws affecting the enforcement of creditors’ rights generally and general principles of equity.
(f)No Violation. The execution, delivery and performance by the Purchaser of this Agreement, the consummation of the transactions contemplated by this Agreement and the other Operative Agreements to which it is a party and the fulfillment of the terms of this Agreement and the other Operative Agreements to which it is a party do not and will not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the organizational documents of the Purchaser, or conflict with or breach any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement, mortgage, deed of trust or other instrument to which the Purchaser is a party or by which the Purchaser is bound or to which any of its properties are subject, or result in the creation or imposition of any lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than liens created hereunder or under the Master Indenture), or violate any law or any order, rule or regulation, applicable to the Purchaser or its properties, of any federal or state regulatory body, any court, administrative agency, or other governmental instrumentality having jurisdiction over the Purchaser or any of its properties.
(g)No Proceedings. There are no proceedings or investigations pending, or, to the Purchaser’s knowledge, threatened against the Purchaser before any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality having jurisdiction over the Purchaser or its properties: (i) asserting the
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invalidity of this Agreement or any of the other Operative Agreements, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any of the other Operative Agreements, (iii) seeking any determination or ruling that could have an adverse effect on the performance by the Purchaser of its obligations under, or the validity or enforceability of, this Agreement or any of the other Operative Agreements, (iv) that may have an adverse effect on the federal or state income tax attributes of, or seek to impose any excise, franchise, transfer or similar tax upon, the transfer and acquisition of the Railcars and Leases Conveyed hereunder or (v) that could have an adverse effect on the Railcars and Leases Conveyed to the Purchaser hereunder.
(h)Consideration. The Purchaser has given fair consideration and reasonably equivalent value in exchange for the Conveyance of the Railcars, related Leases and Related Assets being Conveyed hereunder.
In the event of any breach of a representation and warranty made by the Purchaser hereunder, each Seller covenants and agrees that such Seller will not take any action to pursue any remedy that it may have hereunder, in law, in equity or otherwise, until a year and a day have passed since all Outstanding Obligations under all other Operative Agreements have been paid in full. Each Seller and the Purchaser agree that damages will not be an adequate remedy for a breach of this covenant and that this covenant may be specifically enforced by the Purchaser or any third party beneficiary described in Section 6.8.
Section 4.5    Indemnification.
(a)The TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller shall defend, indemnify and hold harmless the Purchaser, the Servicer, the Indenture Trustee (in its capacities as Indenture Trustee, Note Registrar and Paying Agent), each Noteholder, each of their respective Affiliates and each of the respective directors, officers, employees, successors and permitted assigns, agents and servants of the foregoing (each an “Indemnified Person”) from and against any and all costs, expenses, losses, obligations, penalties, liabilities, damages, actions, or suits or claims (including, but not limited to, the costs of defending any claim or bringing any claim to enforce the indemnification obligations of the Servicer) of whatsoever kind or nature (whether or not on the basis of negligence, strict or absolute liability or liability in tort), that may be imposed upon, incurred by, suffered by or asserted against any Indemnified Person arising out of or resulting from any breach of the applicable Seller’s representations and warranties and covenants contained herein, except (A) those resulting solely from any gross negligence, bad faith or willful misconduct of the particular Indemnified Person claiming indemnification hereunder, (B) those in respect of taxes that are otherwise addressed by the provisions of (and subject to the limitations of) subsection (c) of this Section 4.5 below, or (C) to the extent that providing such indemnity would constitute recourse for losses due to the collectability of sale proceeds (or any particular amount of sale proceeds) in respect of a Railcar due to a diminution in market value of such Railcar, or of Lease or other third party payments due to the
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insolvency, bankruptcy or financial inability to pay of the related Lessee or other third party (the matters contemplated by clauses (A), (B) and (C) may be referred to collectively as the “Excluded Amounts”).
(b)The TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller will defend and indemnify and hold harmless each Indemnified Person against any and all costs, expenses, losses, obligations, penalties, liabilities, damages, actions, or suits or claims of whatsoever kind or nature (whether or not on the basis of negligence, strict or absolute liability or liability in tort), that may be imposed upon, incurred by, suffered by or asserted against such Indemnified Person, other than Excluded Amounts, arising out of or resulting from any action taken by the applicable Seller, other than in accordance with this Agreement or the Master Indenture or other applicable Operative Agreement, in respect of any portion of the Railcars, related Leases and Related Assets that are Conveyed hereunder.
(c)The TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller agrees to pay, and shall defend, indemnify and hold harmless each Indemnified Person (excluding, for purposes of this clause (c), the Noteholders with respect to taxes imposed on them) from and against, any taxes (other than taxes based upon the income of an Indemnified Person and taxes that would constitute Excluded Amounts) that may at any time be asserted against any Indemnified Person with respect to the transactions contemplated in this Agreement, including, without limitation, any sales, gross receipts, general corporation, tangible or intangible personal property, privilege, or license taxes and costs and expenses in defending against the same, arising by reason of the acts to be performed by the applicable Seller under this Agreement and imposed against such Person. Without limiting the foregoing, in the event that the Purchaser, the Servicer or the Indenture Trustee receives actual notice of any transfer taxes arising out of the Conveyance of any Railcar or Lease from a Seller to the Purchaser under this Agreement, on written demand by such party, or upon such Seller otherwise being given notice thereof, the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, as applicable, shall pay, and otherwise indemnify and hold harmless the applicable Indemnified Person, the Servicer and the Indenture Trustee harmless, on an After-Tax Basis, from and against any and all such transfer taxes (it being understood that none of the Purchaser, the Servicer, the Indenture Trustee or any other Indemnified Person shall have any contractual obligation to pay such transfer taxes).
(d)The TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller shall defend, indemnify, and hold harmless each Indemnified Person from and against any and all costs, expenses, losses, obligations, penalties, liabilities, damages, actions, or suits or claims of whatsoever kind or nature (whether or not on the basis of negligence, strict or absolute liability or liability in tort), to the extent that any of the foregoing may be imposed upon, incurred by, suffered by or asserted against such Indemnified Person (other than Excluded Amounts) due to the negligence, willful misfeasance, or bad faith of the applicable Seller in the performance of its duties under this Agreement or by reason of reckless disregard of such Seller’s obligations and duties under this Agreement.
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(e)The TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller shall indemnify, defend and hold harmless each Indemnified Person from and against any costs, expenses, losses, obligations, penalties, liabilities, damages, actions, or suits or claims of whatsoever kind or nature (whether or not on the basis of negligence, strict or absolute liability or liability in tort), that may be imposed upon, incurred by, suffered by or asserted against such Indemnified Person, other than Excluded Amounts, as a result of the failure of any Railcar or Lease Conveyed hereunder to comply with all requirements of applicable law as of the applicable Delivery Date.
Indemnification under this Section 4.5 shall include reasonable fees and expenses of counsel and expenses of litigation. The indemnity obligations hereunder shall be in addition to any obligation that any Seller may otherwise have under applicable law or any other Operative Agreement.
Section 4.6    Special Indemnification by TILC regarding Exercise of Setoff by Customers. TILC (in its capacity as Servicer under the Servicing Agreement) hereby agrees, for the benefit of the Indenture Trustee, the Noteholders and each other Secured Party, that it will, within forty-five (45) days after the date on which it has knowledge that any Lessee shall have reduced any payments made by such Lessee under any Lease in the Portfolio as a result of or in connection with any setoff exercised by such Lessee (regardless of whether such Lessee actually has any contractual, statutory or other right to exercise such setoff) with respect to amounts owed or presumed owed to such Lessee pursuant to railcar leases managed by TILC that are not in the Portfolio, and provided that the applicable Lessee shall not have made payments aggregating the full amount payable by such Lessee under the applicable Lease prior to the end of such 45-day period, deposit into the Collections Account an amount, in immediately available funds, equal to the amount of such reduction.
Indemnification under this Section 4.6 shall include reasonable fees and expenses of counsel and expenses of litigation. The indemnity obligations hereunder shall be in addition to any obligation that TILC may otherwise have under applicable law or any other Operative Agreement.
ARTICLE V
COVENANTS OF SELLER
Section 5.1    Protection of Title of the Purchaser.
(a)On or prior to the date hereof, the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, as applicable, shall have filed or caused to be filed UCC-1 financing statements, STB or Registrar General of Canada filings (each in form proper for filing in the applicable jurisdiction) naming the Purchaser as purchaser or secured party, naming the Indenture Trustee as assignee and describing the Railcars, related Leases and Related Assets Conveyed by it to the Purchaser as collateral, with the office of the Secretary of State of the State of Delaware and in such other locations
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as the Purchaser or the Indenture Trustee shall have required. Without limiting the foregoing, the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, hereby authorizes the Purchaser and/or any assignee thereof to prepare and file any such UCC-1 financing statements. From time to time thereafter, the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, shall authorize and file such financing statements or cause to be authorized and filed such continuation statements, all in such manner and in such places as may be required by law (or deemed desirable by the Purchaser or any assignee thereof) to fully perfect, preserve, maintain and protect the interest of the Purchaser under this Agreement, and the security interest of the Indenture Trustee under the Master Indenture, in the Railcars, related Leases and Related Assets that are Conveyed hereunder and in the proceeds thereof. The TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, shall deliver (or cause to be delivered) to the Purchaser and the Indenture Trustee file-stamped copies of, or filing receipts for, any document filed as provided above, following such filing in accordance herewith. In the event that the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, fails to perform its obligations under this subsection, the Purchaser or the Indenture Trustee may perform such obligations, at the expense of the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, and each of the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, hereby authorizes the Purchaser or the Indenture Trustee and grants to the Purchaser and the Indenture Trustee an irrevocable power of attorney to take any and all steps in order to perform such obligations in such Seller’s or in its own name, as applicable, and on behalf of the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, as are necessary or desirable, in the determination of the Purchaser or Indenture Trustee or any assignee thereof, with respect to performing such obligations.
(b)On or prior to the Closing Date and any other applicable Delivery Date hereunder, the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, shall take all steps necessary under all applicable law in order to transfer and assign to the Purchaser the Railcars and Leases being Conveyed on such date to the Purchaser so that, upon the Conveyance of such Railcar or Lease from such Seller to the Purchaser pursuant to the terms hereof on the applicable Delivery Date, the Purchaser will have acquired good and marketable title to and a valid and perfected ownership interest in such Railcars and Leases, free and clear of any Encumbrance (other than Permitted Encumbrances). On or prior to the applicable Delivery Date hereunder, the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, shall cooperate with the Purchaser in order to take all steps required under applicable law in order for the Purchaser to grant to the Indenture Trustee a first priority perfected security interest in the Railcars and Leases being Conveyed to the Purchaser on such Delivery Date and, from time to time thereafter, the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, shall cooperate with the Purchaser in order to take all such actions as may be required by applicable law (or deemed desirable by the Purchaser) to fully preserve, maintain and protect the Purchaser’s ownership interest in, and the Indenture Trustee’s first priority perfected security interest in the Railcars and Leases which have been Conveyed to the Purchaser hereunder. Notwithstanding anything to the contrary
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in this Agreement, neither the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, shall be required pursuant to this Agreement to make any filings, registrations or recordations in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada.
(c)No Seller shall change its name, identity, jurisdiction of organization or corporate structure in any manner that would or could make any financing statement or continuation statement filed by Purchaser in accordance with this Agreement seriously misleading within the meaning of §9-506 of the UCC (or any similar provision of the UCC), unless such Seller shall have given the Purchaser, the Servicer and the Indenture Trustee at least 30 days’ prior written notice thereof, and shall promptly file and hereby authorizes the Purchaser or the Indenture Trustee to file appropriate new financing statements or amendments to all previously filed financing statements and continuation statements.
(d)The TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, shall give the Purchaser, the Servicer and the Indenture Trustee at least 30 days’ prior written notice of any relocation of its jurisdiction of organization if, as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement. The TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, shall at all times maintain its jurisdiction of organization, each office from which it manages or purchases Railcars and Leases and its principal executive office within the United States of America.
Section 5.2    Other Liens or Interests. Except for the Conveyances hereunder, neither Seller will sell, pledge, assign, transfer or otherwise convey to any other Person, or grant, create, incur, assume or suffer to exist any Encumbrance on the Railcars and Leases Conveyed hereunder or any interest therein (other than Permitted Encumbrances), and the TILC Seller or the TRLWT Manager on behalf of the TRLWT Seller, shall defend the right, title, and interest of the Purchaser and the Indenture Trustee in and to such Railcars and Leases against all Encumbrances or claims of Encumbrances of third parties claiming through or under such Seller. To the extent that any Railcar or Lease shall at any time secure any debt of the related Lessee to a Seller or any of its affiliates, such Seller agrees that any security interest in its favor arising from such a provision shall be subordinate to the interest of the Purchaser (and its further assignees) in such Railcars and Leases.
ARTICLE VI
MISCELLANEOUS
Section 6.1    Amendment. This Agreement may be amended by the Sellers and the Purchaser only with the prior written consent of the Indenture Trustee (acting at the written direction of the Requisite Majority); provided that this Agreement may be amended without the prior written consent of the Indenture Trustee to allow an Affiliate of TILC to accede to this Agreement and become a “Seller” hereunder so long as (a)
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such Affiliate of TILC (i) provides similar representations and warranties in such amendment as set forth in Article IV of this Agreement and (ii) agrees to be bound by the terms of this Agreement as if an original signatory hereto and (b) TILC, on behalf of itself, the other Sellers, provides prior written notice to the Indenture Trustee of such amendment and a copy of such amendment to the Indenture Trustee once executed by the parties thereto.
Section 6.2    Notices. All demands, notices and communications to any Seller and the Purchaser hereunder shall be in writing, personally delivered, or sent by electronic mail, reputable overnight courier or mailed by certified mail, and shall be deemed to have been given upon receipt (a) in the case of the TRLWT Seller at the following address: c/o Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration Re: Trinity Rail Leasing 2021 LLC, with a copy to Trinity Industries Leasing Company, 14221 N. Dallas Parkway, Suite 1100, Dallas, Texas 75254, Attention: TILC Capital Markets Group, Email: TILC.CapitalMarkets.notices@trin.net, (b) in the case of the TILC Seller at the following address: Trinity Industries Leasing Company, 14221 N. Dallas Parkway, Suite 1100, Dallas, Texas 75254, Attention: TILC Capital Markets Group, Email: TILC.CapitalMarkets.notices@trin.net, and (c) in the case of the Purchaser at the following address: Trinity Rail Leasing 2021 LLC., c/o Trinity Industries Leasing Company, as Servicer, 14221 N. Dallas Parkway, Suite 1100, Dallas, Texas 75254, Attention: TILC Capital Markets Group, Email: TILC.CapitalMarkets.notices@trin.net, and with a copy to the Indenture Trustee at the notice address provided for same in the Master Indenture, or, in each case, such other address as shall be designated by a party in a written notice delivered to the other party.
Section 6.3    Merger and Integration. Except as specifically stated otherwise herein, this Agreement and the other Operative Agreements set forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement and the other Operative Agreements. This Agreement may not be modified, amended, waived or supplemented except as provided herein.
Section 6.4    Severability of Provisions. If any one or more of the covenants, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, provisions or terms shall be deemed severable from the remaining covenants, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
Section 6.5    Governing Law. THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
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Section 6.6    Counterparts. For the purpose of facilitating the execution of this Agreement and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 6.7    Binding Effect; Assignability.
(a)This Agreement shall be binding upon and inure to the benefit of each Seller, the Purchaser and their respective successors and assigns; provided, however, that a Seller may not assign its rights or obligations hereunder or any interest herein without the prior written consent of the Purchaser and the Indenture Trustee (acting at the written direction of the Requisite Majority). The Purchaser may assign as collateral security all of its rights hereunder to the Indenture Trustee, and such assignee shall have all rights of the Purchaser under this Agreement (as if such assignee were the Purchaser hereunder).
(b)This Agreement shall create and constitute the continuing obligation of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time when all Outstanding Obligations are paid in full; provided, however, that rights and remedies with respect to any breach of any representation and warranty made by or on behalf of a Seller pursuant to Article IV hereof shall be continuing and shall survive any termination of this Agreement.
Section 6.8    Third Party Beneficiaries. Each of the parties hereto hereby acknowledges that the Purchaser intends to assign as collateral security all of its rights under this Agreement to the Indenture Trustee for the benefit of the Secured Parties under the Master Indenture, and each Seller hereby consents to such assignment and agrees that upon such assignment, the Indenture Trustee (for the benefit of the Secured Parties) shall be a third party beneficiary of this Agreement and may exercise the rights of the Purchaser hereunder and shall be entitled to all of the rights and benefits of the Purchaser hereunder to the same extent as if it were party hereto.
In addition, whether or not otherwise expressly stated herein, all representations, warranties, covenants and agreements of the Purchaser, TRLWT and TILC (whether as a Seller or as TRLWT Manager) in this Agreement or in any document delivered by any of them in connection with this Agreement (including without limitation, in any Delivery Schedule), shall be for the express benefit of the Indenture Trustee, each Noteholder and each other Secured Party as express third party beneficiaries, and shall be enforceable by the Indenture Trustee (acting at the direction of the Requisite Majority) as if such Person were a party hereto. Each of the Purchaser, TRLWT and TILC hereby acknowledges and agrees that such representations, warranties, covenants and agreements are relied upon by each Noteholder in purchasing the Equipment Notes issued under the Master Indenture.
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Section 6.9    Term. This Agreement shall commence as of the date of execution and delivery hereof and shall continue in full force and effect until the payment in full of all Outstanding Obligations.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and year first above written.

TRINITY RAIL LEASING WAREHOUSE TRUST


By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director
TRINITY INDUSTRIES LEASING COMPANY


By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director
TRINITY RAIL LEASING 2021 LLC

By: Trinity Industries Leasing Company, as sole equity member and manage


By: /s/ Sara E. McCoy
Name: Sara E. McCoy
Title: Senior Vice President and Managing Director

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Exhibit 22.1

List of Guarantor Subsidiaries

As of June 30, 2021, the following subsidiaries of Trinity Industries, Inc. (the “Parent”) are guarantors of the Parent’s 4.55% senior notes due 2024:

Trinity Industries Leasing Company
Trinity North American Freight Car, Inc.
Trinity Rail Group, LLC
Trinity Tank Car, Inc.
Trinity Highway Products, LLC
TrinityRail Maintenance Services, Inc.


Exhibit 31.1
CERTIFICATION
I, E. Jean Savage, certify that:
1.I have reviewed this quarterly report on Form 10-Q of Trinity Industries, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: July 27, 2021
/s/ E. Jean Savage
E. Jean Savage
Chief Executive Officer and President



Exhibit 31.2
CERTIFICATION
I, Eric R. Marchetto, certify that:
1.I have reviewed this quarterly report on Form 10-Q of Trinity Industries, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: July 27, 2021
/s/ Eric R. Marchetto
Eric R. Marchetto
Executive Vice President and Chief Financial Officer



Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Trinity Industries, Inc. (the “Company”) on Form 10-Q for the period ended June 30, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, E. Jean Savage, Chief Executive Officer and President of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company, as of, and for, the periods presented in the Report.

/s/ E. Jean Savage
E. Jean Savage
Chief Executive Officer and President
July 27, 2021
A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.



Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Trinity Industries, Inc. (the “Company”) on Form 10-Q for the period ended June 30, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Eric R. Marchetto, Executive Vice President and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company, as of, and for, the periods presented in the Report.

/s/ Eric R. Marchetto
Eric R. Marchetto
Executive Vice President and Chief Financial Officer
July 27, 2021
A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.