exv10w19w13



 





Exhibit 10.19.13




EXECUTION COPY




 





U.S. $400,000,000




AMENDMENT AND RESTATEMENT




dated as of August 7, 2007




OF




WAREHOUSE LOAN AGREEMENT




dated as of June 27, 2002




among




TRINITY INDUSTRIES LEASING COMPANY,




TRINITY RAIL LEASING TRUST II,




THE COMMITTED LENDERS AND THE CONDUIT LENDERS

FROM TIME TO TIME PARTY HERETO,




CREDIT SUISSE, NEW YORK BRANCH,

as Agent,




and




WILMINGTON TRUST COMPANY,

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
	 	 	34	 
	 
	 	 	 	 
	ARTICLE II THE CREDIT FACILITY
	 	 	34	 
	 
	 	 	 	 
	SECTION 2.01 Commitment to Lend
	 	 	34	 
	SECTION 2.02 Procedures for Borrowing
	 	 	35	 
	SECTION 2.03 Notice to Lenders; Funding of Loans
	 	 	36	 
	SECTION 2.04 Evidence of Loans
	 	 	38	 
	SECTION 2.05 Interest
	 	 	39	 
	SECTION 2.06 Repayment and Maturity of Loans
	 	 	40	 
	SECTION 2.07 Prepayments
	 	 	40	 
	SECTION 2.08 Adjustment of Commitments
	 	 	48	 
	SECTION 2.09 Fees
	 	 	51	 
	SECTION 2.10 Pro-rata Treatment
	 	 	51	 
	SECTION 2.11 Sharing of Payments
	 	 	52	 
	SECTION 2.12 Payments; Computations; Proceeds of Collateral, Etc
	 	 	52	 
	SECTION 2.13 Adjustments to Advance Rate and Borrowing Base
	 	 	53	 
	SECTION 2.14 Interest Rate Risk Management
	 	 	53	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	54	 
	 
	 	 	 	 
	SECTION 3.01 Taxes
	 	 	54	 
	SECTION 3.02 Illegality
	 	 	56	 
	SECTION 3.03 Increased Costs and Reduced Return
	 	 	56	 
	SECTION 3.04 Funding Losses
	 	 	58	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS
	 	 	58	 
	 
	 	 	 	 
	SECTION 4.01 Conditions to Facility Closing
	 	 	58	 
	SECTION 4.02 Conditions to Amendment Closing Date
	 	 	63	 
	SECTION 4.03 Conditions to Each Funding Date
	 	 	66	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	68	 
	 
	 	 	 	 
	SECTION 5.01 Organization and Good Standing
	 	 	68	 
	SECTION 5.02 Power; Authorization; Enforceable Obligations
	 	 	69	 
	SECTION 5.03 No Conflicts
	 	 	69	 
	SECTION 5.04 No Default
	 	 	69	 






Amended and Restated

Warehouse Loan Agreement




i









 






TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page
	SECTION 5.05 Financial Condition
	 	 	69	 
	SECTION 5.06 No Material Change
	 	 	71	 
	SECTION 5.07 Title to Properties
	 	 	71	 
	SECTION 5.08 Litigation
	 	 	71	 
	SECTION 5.09 Taxes
	 	 	71	 
	SECTION 5.10 Compliance with Law
	 	 	71	 
	SECTION 5.11 ERISA
	 	 	71	 
	SECTION 5.12 Subsidiaries
	 	 	72	 
	SECTION 5.13 Governmental Regulations, Etc
	 	 	72	 
	SECTION 5.14 Purpose of Loans
	 	 	73	 
	SECTION 5.15 Labor Matters
	 	 	73	 
	SECTION 5.16 Environmental Matters
	 	 	73	 
	SECTION 5.17 Intellectual Property
	 	 	73	 
	SECTION 5.18 Solvency
	 	 	74	 
	SECTION 5.19 Disclosure
	 	 	74	 
	SECTION 5.20 Security Documents
	 	 	74	 
	SECTION 5.21 Ownership
	 	 	74	 
	SECTION 5.22 Lease Documents
	 	 	74	 
	SECTION 5.23 Sole Business of the Borrower
	 	 	75	 
	SECTION 5.24 Separate Corporate Structure; No Employees
	 	 	75	 
	SECTION 5.25 Leases
	 	 	76	 
	SECTION 5.26 Railcars
	 	 	76	 
	 
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	77	 
	 
	 	 	 	 
	SECTION 6.01 Information
	 	 	77	 
	SECTION 6.02 Preservation of Existence and Franchises; Authorizations, Approvals and
Recordations
	 	 	79	 
	SECTION 6.03 Books and Records
	 	 	79	 
	SECTION 6.04 ERISA
	 	 	79	 
	SECTION 6.05 Payment of Taxes and Other Debt
	 	 	79	 
	SECTION 6.06 Insurance; Certain Proceeds
	 	 	80	 
	SECTION 6.07 Operation, Use and Maintenance
	 	 	81	 
	SECTION 6.08 Replacement of Parts; Modifications and Improvements
	 	 	83	 






Amended and Restated

Warehouse Loan Agreement




ii









 





TABLE OF CONTENTS
(continued)






	 	 	 	 	 
	 	 	Page
	SECTION 6.09 Use of Proceeds
	 	 	83	 
	SECTION 6.10 Audits/Inspections/Appraisals
	 	 	83	 
	SECTION 6.11 Stamp Tax
	 	 	84	 
	SECTION 6.12 Follow-On Leases
	 	 	85	 
	SECTION 6.13 Accounts
	 	 	85	 
	SECTION 6.14 Manager
	 	 	86	 
	SECTION 6.15 Action after an Event of Default
	 	 	86	 
	SECTION 6.16 [RESERVED]
	 	 	86	 
	SECTION 6.17 [RESERVED]
	 	 	87	 
	SECTION 6.18 [RESERVED]
	 	 	87	 
	SECTION 6.19 Required Disclosures
	 	 	87	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	87	 
	 
	 	 	 	 
	SECTION 7.01 Limitation on Debt
	 	 	87	 
	SECTION 7.02 Restriction on Liens
	 	 	87	 
	SECTION 7.03 Nature of Business
	 	 	87	 
	SECTION 7.04 Consolidation, Merger and Dissolution
	 	 	87	 
	SECTION 7.05 Asset Dispositions
	 	 	87	 
	SECTION 7.06 Investments
	 	 	88	 
	SECTION 7.07 Restricted Payments, etc
	 	 	88	 
	SECTION 7.08 Transactions with Affiliates
	 	 	88	 
	SECTION 7.09 Fiscal Year; Organization and Other Documents
	 	 	89	 
	SECTION 7.10 Additional Negative Pledges
	 	 	89	 
	SECTION 7.11 Impairment of Security Interests
	 	 	89	 
	SECTION 7.12 Debt Service Coverage Ratio
	 	 	89	 
	SECTION 7.13 No Amendments to the Lease Documents
	 	 	89	 
	SECTION 7.14 Lease Default
	 	 	90	 
	SECTION 7.15 Consolidation with Any Other Person
	 	 	90	 
	SECTION 7.16 Limitations on Employees, Subsidiaries
	 	 	90	 
	SECTION 7.17 Independence of Covenants
	 	 	90	 
	 
	 	 	 	 
	ARTICLE VIII OTHER COVENANTS
	 	 	91	 
	 
	 	 	 	 
	SECTION 8.01 Quiet Enjoyment
	 	 	91	 
	 
	 	 	 	 






Amended and Restated

Warehouse Loan Agreement




iii









 






TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page
	ARTICLE IX DEFAULTS
	 	 	91	 
	 
	 	 	 	 
	SECTION 9.01 Events of Default
	 	 	91	 
	SECTION 9.02 Acceleration; Remedies
	 	 	93	 
	 
	 	 	 	 
	ARTICLE X AGENCY PROVISIONS
	 	 	95	 
	 
	 	 	 	 
	SECTION 10.01 Appointment; Authorization
	 	 	95	 
	SECTION 10.02 Delegation of Duties
	 	 	96	 
	SECTION 10.03 Exculpatory Provisions
	 	 	96	 
	SECTION 10.04 Reliance on Communications
	 	 	96	 
	SECTION 10.05 Notice of Default
	 	 	97	 
	SECTION 10.06 Credit Decision; Disclosure of Information by the Agent or Collateral
Agent
	 	 	97	 
	SECTION 10.07 Indemnification
	 	 	98	 
	SECTION 10.08 Agent and Collateral Agent in Their Individual Capacities
	 	 	98	 
	SECTION 10.09 Successor Agents
	 	 	99	 
	SECTION 10.10 Request for Documents
	 	 	99	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	99	 
	 
	 	 	 	 
	SECTION 11.01 Notices and Other Communications
	 	 	99	 
	SECTION 11.02 No Waiver; Cumulative Remedies
	 	 	100	 
	SECTION 11.03 Amendments, Waivers and Consents
	 	 	101	 
	SECTION 11.04 Expenses
	 	 	102	 
	SECTION 11.05 Indemnification
	 	 	103	 
	SECTION 11.06 Successors and Assigns
	 	 	106	 
	SECTION 11.07 Confidentiality
	 	 	109	 
	SECTION 11.08 Set-off
	 	 	110	 
	SECTION 11.09 Interest Rate Limitation
	 	 	111	 
	SECTION 11.10 Counterparts
	 	 	111	 
	SECTION 11.11 Integration
	 	 	112	 
	SECTION 11.12 Survival of Representations and Warranties
	 	 	112	 
	SECTION 11.13 Severability
	 	 	112	 
	SECTION 11.14 Headings
	 	 	112	 
	SECTION 11.15 Marshalling; Payments Set Aside
	 	 	112	 
	SECTION 11.16 Performance by the Agent
	 	 	113	 
	SECTION 11.17 Third Party Beneficiaries
	 	 	113	 






Amended and Restated

Warehouse Loan Agreement




iv









 






TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page
	SECTION 11.18 No Proceedings
	 	 	113	 
	SECTION 11.19 Governing Law; Submission to Jurisdiction
	 	 	114	 
	SECTION 11.20 Waiver of Jury Trial
	 	 	114	 
	SECTION 11.21 Binding Effect
	 	 	114	 
	SECTION 11.22 The Patriot Act
	 	 	114	 







Amended and Restated

Warehouse Loan Agreement




v









 






TABLE OF CONTENTS
(cont.)





SCHEDULES:




	 	 	 	 	 
	Schedule A
	 	—	 	Industry Concentration Chart
	Schedule 1.01
	 	—	 	Lenders and Commitments
	Schedule 5.02
	 	—	 	Required Consents, Authorizations, Notices and Filings
	Schedule 6.06
	 	—	 	Insurance
	Schedule 11.01
	 	—	 	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 Additional 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 B
	 	—	 	Form of Note
	Exhibit C
	 	—	 	Form of Assignment and Acceptance
	Exhibit D-1
	 	—	 	Form of Opinion of Counsel for the Borrower, the Manager and Trinity

	Exhibit D-2
	 	—	 	Form of Opinion of In-House Counsel for the Borrower, the Manager and Trinity
	Exhibit D-3
	 	—	 	Form of Opinion of Delaware Trust Counsel for the Borrower
	Exhibit D-4
	 	—	 	Form of True Sale Opinion
	Exhibit D-5
	 	—	 	Form of Nonconsolidation Opinion
	Exhibit D-6
	 	—	 	Form of Opinion of Special STB Counsel for the Borrower
	Exhibit D-7
	 	—	 	Form of Opinion of Special Canadian Counsel for the Agent
	Exhibit D-8
	 	—	 	Form of Opinion of Counsel for the Depositary
	Exhibit D-9
	 	—	 	Form of Opinion of Counsel for the Marks Company
	Exhibit E-1
	 	—	 	Form of Security Agreement
	Exhibit E-2
	 	—	 	Form of Perfection Certificate
	Exhibit E-3
	 	—	 	[RESERVED]
	Exhibit E-4
	 	—	 	Form of Notice of Lease Assignment
	Exhibit F
	 	—	 	Form of Depository Agreement
	Exhibit G
	 	—	 	Form of Performance Guaranty
	Exhibit H
	 	—	 	Form of Management Agreement
	Exhibit I
	 	—	 	Form of Insurance Management Agreement
	Exhibit J-1
	 	—	 	Form of Full Service Railcar Lease Agreement
	Exhibit J-2
	 	—	 	Form of Net Railcar Lease Agreement
	Exhibit K
	 	—	 	Form of Asset Contribution and Purchase Agreement
	Exhibit L
	 	—	 	Form of Administrative Services Agreement
	Exhibit M
	 	—	 	Form of Officer’s Certificate









Amended and Restated

Warehouse Loan Agreement




vi









 








AMENDED AND RESTATED WAREHOUSE LOAN AGREEMENT




     This Amended and Restated Warehouse Loan Agreement is dated as of August 7, 2007 and is among
TRINITY INDUSTRIES LEASING COMPANY, a Delaware corporation (the “Manager”), TRINITY RAIL
LEASING TRUST II, a Delaware statutory trust (the “Borrower”), the banks and other lending
institutions from time to time party hereto (each a “Lender” and, collectively, the
“Lenders”), CREDIT SUISSE, NEW YORK BRANCH (formerly Credit Suisse First Boston, New York
Branch), as Agent for the Lenders (in such capacity, the “Agent”), and WILMINGTON TRUST
COMPANY, in its capacity as Collateral Agent and Depositary for the Protected Parties referred to
herein (in such capacity, the “Collateral Agent”).



     Background. The parties hereto have entered into a Warehouse Loan Agreement, dated
June 27, 2002, which was subsequently amended (as so amended, the “Existing Loan
Agreement”). The parties hereto wish to amend and restate the Existing Loan Agreement to be as
set forth herein.



     The parties hereto agree 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 a Derivatives Agreement 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 the aggregate 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 with a cap rate which is no higher than 7.00%;




     (ii) an interest rate swap agreement under which the fixed rate paid by the Borrower,
exclusive of credit spreads, will not exceed 7.00%; or




     (iii) any other Derivatives Agreement (x) that is approved by (1) the Agent and the
Required Lenders, in the case of a Hedging Event described in 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, and (y) under which the
Borrower is protected for increases in One Month LIBOR above 7.00%.



     “Accounts” means, collectively, the Collection Account, the Maintenance Reserve
Account, the Modifications and Improvements Account and the Liquidity Reserve Account.


Amended and Restated

Warehouse Loan Agreement














 





     “Additional Collateral Certificate” means a certificate substantially in the form of
Exhibit A-3 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.



     “Adjusted Eurodollar Rate” means, for each Interest Period, the quotient obtained
(rounded upward, if necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the Eurodollar Reserve
Percentage.



     “Adjusted Facility Amount” means the quotient of (i) the Committed Amount
divided by (ii) the Advance Rate.



     “Administrative Questionnaire” means, with respect to each Lender, an administrative
questionnaire in the form prepared by the Agent and submitted to the Agent (with a copy to the
Borrower) duly completed by such Lender.



     “Administrative Services Agreement” means the Amended and Restated Administrative
Services Agreement, substantially in the form of Exhibit L hereto, dated as of the
Amendment Closing Date between the Borrower and TILC.



     “Advance Rate” means a rate of 78%.



     “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% or more of the Equity Interests having ordinary voting power
of such Person, (ii) the ownership, directly or indirectly, of 10% 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, 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 11.01, or such other address and account as the Agent
may from time to time notify to the Borrower and the Lenders.



     “Aggregated Default Interest” has the meaning set forth in Section 2.05(a).



     “Aggregated Default Interest Rate” means, for any day during any Interest Period, the
sum of the Adjusted Eurodollar Rate for such Interest Period plus 500 basis points.


Amended and Restated

Warehouse Loan Agreement




2









 





     “Aggregate FMV” means, as of any date of determination with respect to any specified
group of Railcars, the aggregate of the Fair Market Values of all such Railcars (including, if
calculated on a Funding Date, any such Railcars which will become Portfolio Railcars on such
Funding Date, but excluding any such Railcars which will cease to be Portfolio Railcars at the time
of such determination pursuant to Section 8.10 of the Security Agreement or otherwise).



     “Agreement” means this Warehouse Loan Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.



     “Amended Loan Documents” means the amendments and restatements of this Agreement, the
Management Agreement, the Insurance Management Agreement, the Administrative Services Agreement,
the Depository Agreement, the Security Agreement, the Performance Guaranty, and the Asset
Contribution and Purchase Agreement, as well as the supplement to the Customer Collections Account
Administration Agreement delivered pursuant to Section 4.02(g), in each case dated as of
the Amendment Closing Date.



     “Amendment Closing Date” means August 7, 2007.



     “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.



     “Applicable Rate” means with respect to any Loan for any day during any Interest
Period the sum of (i) the Adjusted Eurodollar Rate for such Interest Period plus
(ii) the Facility Margin.



     “Appraised Fair Market Value”, with respect to any Railcar, means the amount set forth
in the most recent Independent Appraisal 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 Amended and Restated Asset
Contribution and Purchase Agreement dated as of the Amendment Closing Date, substantially in the
form of Exhibit K hereto, between TILC and the Borrower.


Amended and Restated

Warehouse Loan Agreement




3









 





     “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
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 Amendment Closing Date to the
Revolving Termination Date.



     “Available Commitment” means, with respect to any Committed Lender, the aggregate of
such Committed Lender’s Commitment less the aggregate principal amount of outstanding Loans held by
such Committed Lender (or any Conduit Lender designated by such Committed Lender) under this
Agreement.



     “Bank Credit Facility” means the Second Amended and Restated Credit Agreement dated as
of April 20, 2005 among Trinity, as borrower, the financial institutions now or hereafter parties
thereto, JPMorgan Chase Bank, N.A., individually and as issuing bank and as administrative agent,
Dresdner Bank AG, New York and Grand Cayman Branches, individually and as documentation agents, The
Royal Bank of Scotland plc, Wachovia Bank, N.A. and Bank of America, N.A., individually and as
syndication agents, and J.P. Morgan Securities, Inc., as sole lead arranger and bookrunner.



     “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.



     “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 Trinity Rail Leasing Trust II, a Delaware business trust, and its
successors.



     “Borrower Change of Control” means either (i) Trinity shall cease to own directly 100%
of the Equity Interests of the Manager on a fully-diluted basis assuming the conversion and
exercise of all outstanding Equity Equivalents (whether or not such securities are then convertible
or unexercisable), (ii) TILC shall cease to own directly 100% of the Equity Interests of each of
the Partners 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),
(iii) the Partners, collectively, shall cease to own 100% of the Equity Interests of the
Partnership 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), or (iv)
the Partnership shall cease to own directly 100% of the Equity Interests of the Borrower



Amended and Restated

Warehouse Loan Agreement




4









 







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, at any time (after giving effect to (i) the addition to the
“Borrowing Base” of any and all Railcars to be added to the Portfolio on such date and (ii) the
reduction of the “Borrowing Base” in respect of any and all Railcars to be released from the
Portfolio on such date), a Dollar amount equal to the product of (i) the Advance Rate in effect at
such time times (ii) the result of (A) the Aggregate FMV of all Eligible Railcars at such time
minus (B) the Excluded Assets Amount at such time.



     “Borrowing Base Certificate” means a certificate of the chief financial officer or
chief accounting officer of the Borrower and the Manager, in the form of Exhibit A-6 hereto
or such other form as may hereafter be agreed by the Borrower (and/or the Manager, 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.



     “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.



     “Calculation Date” means with respect to any Settlement Date, the last day of the
calendar month immediately preceding such Settlement Date.



     “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 (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,
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 or “Aa2” by Moody’s (or equivalent ratings by another
nationally recognized credit rating agency if both such corporations are 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 or P1 by Moody’s or carrying an equivalent
rating by an internationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, 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



Amended and Restated

Warehouse Loan Agreement




5









 







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 or P1 by Moody’s or 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/or “AAA” by S&P or invest exclusively
in assets satisfying the requirements of clauses (a) through (f) of this definition.



     “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, 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.



     “Chattel
Paper Legend” means the following statement: “COUNTERPART No. ___ OF ___
SERIALLY NUMBERED COUNTERPARTS. TO THE EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER UNDER
THE UNIFORM COMMERCIAL CODE IN EFFECT IN ANY APPLICABLE JURISDICTION, NO SECURITY INTEREST IN THIS
DOCUMENT MAY BE CREATED THROUGH THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN
COUNTERPART NO. 1”.



     “Closing Date” means June 27, 2002.



     “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.


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     “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 Wilmington Trust Company in its capacity as collateral agent
and representative for the Protected Parties under the Security Agreement and the Depository
Agreement.



     “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 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,
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.



     “Commitment” means, with respect to any Committed Lender, the commitment of such
Lender, in an aggregate principal amount at any time outstanding of up to such 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 1.01 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 1.01 hereto, as such percentage may be modified in
connection with any assignment made in accordance with the provisions of Section 11.06(b).



     “Committed Amount” means $400,000,000 or such lesser amount to which the Committed
Amount may be reduced pursuant to Section 2.08.



     “Committed Lender” means a Lender listed on Schedule 1.01 and shown as having
a Commitment hereunder as of the Amendment Closing Date or which thereafter acquires a Commitment
hereunder in accordance with Section 11.06(b).



     “Competitor of the Borrower” means a Person who either (i) is engaged in the 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 business 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



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the Borrower and/or the Manager has notified the Agent and each Lender in writing that such
Person is 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.



     “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 Beethoven Funding Corporation, Nieuw Amsterdam Receivables
Corporation, Alpine Securitization Corp or any other Lender which is designated as a Conduit Lender
pursuant to Section 11.06(h).



     “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.



     “Corporate Base Rate” shall mean for any day, the higher of (i) the prime rate per
annum announced from time to time by Credit Suisse in New York in effect on such day or (ii) the
Federal Funds Rate plus one-half of one percent (0.50%). (The Corporate Base Rate is not intended
to represent the lowest rate charged by Credit Suisse for extensions of credit.)



     “CP Rate” means, with respect to any portion of a Loan funded and maintained by a
Conduit Lender through the issuance of commercial paper for any day during any Interest Period, the
sum of (i) the rate applicable to such day in such Interest Period as calculated in the manner
specified by such Conduit Lender in writing to the Agent and the Borrower as such Conduit Lender’s
“CP Rate” plus (ii) the Facility Margin; provided that prior consent of the Borrower is
required before such manner of calculating the CP Rate can go into effect, which consent may not be
unreasonably withheld or delayed.



     “Credit Exposure” has the meaning set forth in the definition of “Required Lenders” in
this Section 1.01.



     “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



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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 advanced by the Collateral Agent to preserve
the Collateral or preserve its security interests in the Collateral; and




     (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, each Protected Party and each Indemnitee and their respective successors and assigns, and
“Creditors” means any two or more of such Creditors.



     “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, 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 6.13(f).



     “Customer Payments Accounts” means the Customer Payments Account referred to and
defined in the Customer Collections Account Administration Agreement.



     “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 property, (vii) all non-contingent obligations (and, for
purposes of Section 7.01 and Section 9.01(f), 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



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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 average of the aggregate amount of Monthly Rent actually collected and paid into the
Collection Account during 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 (A) the average of
the aggregate amount of (y) interest expense accrued on the Loans plus (z) Liquidity Fees accrued
hereunder, in each case with respect to each of the three most recent Measuring Periods ended on or
prior to the Calculation Date immediately preceding such Settlement Date plus (B) the average of
the aggregate amount of Monthly Depreciation with respect to 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 Wilmington Trust Company, or a successor thereto appointed pursuant
to the Depository Agreement.



     “Depository Agreement” means the Amended and Restated Depository Agreement,
substantially in the form of Exhibit F hereto, dated as of the Amendment Closing Date,
among the Borrower, the Agent, the Collateral Agent, the Manager and the Depositary.



     “Depreciated Purchase Price” means with respect to any Railcar at any time, the
original purchase price of such Railcar paid by the Borrower (in the case of Railcars purchased by
the Borrower from a seller other than TILC) or TILC (in the case of Railcars transferred to the
Borrower under the Asset Contribution and Purchase Agreement) net of the aggregate amount of
Monthly Depreciation accumulated with respect thereto since the date of such acquisition by the
Borrower or TILC, as applicable.



     “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



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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 Ineligible Type” means with respect to Portfolio Railcars and Portfolio
Leases, Railcars or Leases, as the case may be, which are of a type which the Agent, in its
reasonable discretion, has theretofore designated (by written notice to the Borrower) as ineligible
for inclusion in the Borrowing Base hereunder.



     “Designated Type” means when used with respect to Railcars, Railcars which are
classified as covered hopper grain cars or as coal cars (each of which shall be a separate “type”
of Railcar).



     “Discretionary Account” means a demand deposit account maintained by the Borrower and
designated and identified to the Agent as the “Discretionary Account” hereunder.



     “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
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



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11









 







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.



     “Effective Date” means the date this Agreement becomes effective in accordance with
Section 11.21.



     “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.



     “Eligible Lease” means, as of any date of determination, a Lease:




     (i) in the form or substantially in the form of Exhibit J-1 or Exhibit
J-2 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 either
(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, or (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);




     (iv) which is not a Designated Ineligible Type of Lease;




     (v) 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;




     (vi) which provides for payment in Dollars;




     (vii) which complies with all Applicable Laws of the jurisdiction in which it was
originated;




     (viii) 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;


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     (ix) 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,
either Partner or the Partnership;




     (x) which has not been satisfied, subordinated or rescinded and remains in full force
and effect; and




     (xi) 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, a Railcar:




     (i) other than a Railcar which the Agent has determined and has previously notified the
Borrower in writing is of a type which could, if included in the Portfolio, cause the Loans
or any Securitization of Portfolio assets to receive a long term rating or a shadow rating
of below “A” from S&P or below “A2” from Moody’s or which is otherwise a Designated
Ineligible Type of Railcar;




     (ii) 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;




     (iii) 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; and




     (iv) other than a Railcar (it being understood and agreed that Railcars deemed
ineligible under this clause (iv) shall be excluded from the “Eligible Railcars” in
descending order by age, beginning with the oldest Portfolio Railcar) which, when taken
together with all of the other Portfolio Railcars, causes the weighted average age (weighted
by Fair Market Values) of all Eligible Portfolio Railcars from their respective dates of
manufacture to exceed six years.



     “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



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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 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 in reorganization; (iv) the filing
of a notice of intent to terminate, the treatment of a Pension 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.



     “Eurodollar 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



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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 Eurodollar
Rate shall be adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.



     “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 the such Railcar or the use of such Railcar for a period in excess
of 180 days due to destruction of or damage to such property or any other casualty
which renders repair uneconomic or which renders such property permanently unfit for
normal use;




     (ii) any damage to such Railcar which results in the receipt of 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 180
consecutive days;




     (iv) the confiscation, seizure of or requisition or taking of title to or other
Condemnation of such Railcar by any Governmental Authority other than an
instrumentality or agency of the United States whose obligations bear the full faith
and credit of the United States, for a period of more than 365 consecutive days; or




     (v) 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 365 consecutive days.



     “Excepted Payments” means “excepted payments” or “excluded payments” (as such terms or
similar terms are defined and used in any Portfolio Lease) payable to or for the benefit of the
Borrower, the Manager, 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 insurance maintained by or on behalf of the Borrower for its own



Amended and Restated

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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.



     “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, if calculated on a Funding
Date, amounts in respect of Eligible Railcars which will become Portfolio Railcars on such Funding
Date, but excluding amounts in respect of any Eligible Railcars which will cease to be Portfolio
Railcars at the time of such determination pursuant to Section 8.10 of the Security Agreement or
otherwise)




     (i) the amount by which (x) the Aggregate FMV of all Eligible Railcars which are either
(A) not subject to a Lease or (B) subject to a Lease with respect to which payment
obligations owed by the applicable Lessee, which in aggregate exceed more than 5 percent of
the aggregate Monthly Rent then payable by such Lessee under such Lease, are more than 120
days past the stated due dates for such payment obligations, exceeds (y) 5%of the Adjusted
Facility Amount; plus




     (ii) for each single Lessee whose unsecured, unsubordinated, non-credit enhanced
long-term indebtedness for money borrowed is rated at least BBB- by S&P and 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) 20% of the Adjusted Facility Amount; plus




     (iii) the amount by which (x) the Aggregate FMV of all Eligible Railcars subject to one
or more Eligible Leases to Lessees whose unsecured, unsubordinated, non-credit enhanced
long-term indebtedness for money borrowed is rated lower than BBB- by S&P or Baa3 by Moody’s
exceeds (y) 60% of the Adjusted Facility Amount; plus




     (iv) for each single Lessee whose unsecured, unsubordinated, non-credit enhanced
long-term indebtedness for money borrowed is rated below 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) 12.5% of the Adjusted Facility Amount;
plus




     (v) 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) 50% of the Adjusted Facility Amount; plus




     (vi) the amount by which (x) the Aggregate FMV of all Eligible Railcars which are
leased to Lessees domiciled outside the United States exceeds (y) 15% of the Adjusted
Facility Amount; plus 


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     (vii) the amount by which (x) the Aggregate FMV of all Eligible Railcars which are
leased to Lessees domiciled in Mexico exceeds (y) 5% of the Adjusted Facility Amount;
plus




     (viii) the Aggregate FMV of all Eligible Railcars which are 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); plus




     (ix) the amount by which (x) the Aggregate FMV of all (A) 70-ton boxcars and (B) steel
coal cars exceeds (y) 3% of the Adjusted Facility Amount; plus




     (x) the amount by which (x) the Aggregate FMV of all Specialty Railcars exceeds (y) 5%
of the Adjusted Facility Amount; plus




     (xi) the amount by which (x) the Aggregate FMV of all covered hopper cars with a gross
rail load of 263,000 lbs. or less exceeds (y) 10% of the Adjusted Facility Amount;
plus




     (xii) 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 Adjusted Facility Amount (provided
that, to the extent that a positive amount is calculated for any Industry Group under this
clause (xii), only the highest positive amount calculated for any single Industry
Group pursuant to this clause (xii) shall be deemed to be an “Excluded Assets
Amount” under this clause (xii) and all other amounts shall be disregarded);
plus




     (xiii) 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




     (xiv) the Aggregate FMV of all Eligible Railcars which otherwise fail to meet the
specifications and requirements established from time to time by, or are otherwise deemed
excluded from the Borrowing Base by, the Agent, in each case in its reasonable discretion
and following written notice by the Agent to the Borrower and the Manager of such
specifications and/or requirements or deemed exclusions.



     “Facility Margin” means (i) at any time during the Availability Period, 75 basis
points and (ii) thereafter, 75 basis points plus an additional 25 basis points for each period of
three consecutive Interest Periods during which any Loan remains outstanding.



     “Facility Party” means each of the Manager and the Borrower, and “Facility
Parties” means both 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).


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     “Failed Loan Amount” has the meaning set forth in Section 2.03(e).



     “Fair Market Value” means, with respect to any Railcar, the lesser of (i) the
Appraised Fair Market Value as set forth in the Independent Appraisal with respect thereto then
most recently delivered to the Agent (if any) and (ii) the Depreciated Purchase Price of such
Railcar.



     “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, New York Branch, on such day on such transactions as determined by the Agent.



     “Financing Notice” means a notice in substantially the form of Exhibit A-4
hereto, with appropriate insertions.



     “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.



     “Funding Date” means each date on which a Loan is 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) all related Lease Documents;



          (ii) an
Independent Appraisal, if required under Section 6.10;



          (iii) a
Physical Inspection Report, if required under Section 6.10;



          (iv) the following information:




     (A) the Manufacturer, type, model and car number, including whether such
Railcar is a Designated Type;




     (B) 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;




     (C) the Lessee or proposed Lessee, if applicable, and the primary Industry in
which such Railcar operates;


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     (D) the seller of the Railcar and whether it is an Affiliate of the Borrower;




     (E) the proposed Purchase Price and information on any material modifications
(including, but not limited to, prospective material modifications) to the Railcar
that relate to such Purchase Price;




     (F) 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 detailed
financial and credit information regarding the Lessee or proposed Lessee;




     (G) if Trinity or any of its Affiliates then owns or owned such Railcar at any
time prior to the purchase of such Railcar by the Borrower, (A) the dates of such
ownership, (B) the purchase price paid by Trinity and/or any such Affiliate for such
Railcar and (C) such further information as the Agent may reasonably request;




     (H) search reports 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




     (I) 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;
and




     (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 J-1 or J-2;


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 applicable 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 applicable 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 TILC’s independent
public accountants have concurred) with the financial statements of TILC delivered to the Lenders
at the Closing pursuant to Section 4.01(m).


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     “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 Section11.06(h).



     “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 during the
Availability Period:




     (A) on any Settlement Date, the London Interbank Offered Rate commencing on
such Settlement Date equals or exceeds 6.00%;




     (B) on any Settlement Date, the Two Year USD Swap Rate equals or exceeds 6.50%;
or




     (C) receipt by the Borrower or the Agent of notification by any Rating Agency
that entering into an Acceptable Derivatives Agreement is necessary in order to
retain the then current rating by such Rating Agency of the Loans; or




     (ii) at any time, the occurrence of any Event of Default or Manager Event of Default,
or the occurrence of the third Scheduled Payment Date.



     “Illegality Event” has the meaning specified in Section 3.02.



     “Increased Cost” has the meaning specified in Section 3.03(a).



     “Indemnified Liabilities” has the meaning set forth in Section 11.05.



     “Indemnitee” has the meaning set forth in Section 11.05.


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     “Independent Appraisal” means a document executed by an Independent Appraiser setting
forth the Appraised Fair Market Value of the item of equipment being appraised and the data and
explanation, all in reasonable detail, supporting such Appraised Fair Market Value.



     “Independent Appraiser” means RailSolutions, Inc., or, in substitution of any of the
foregoing appraiser, any independent railcar appraisal expert of recognized standing selected by
the Agent in consultation with, and satisfactory to, the Borrower; provided that no such
consultations with, or satisfaction of, the Borrower shall be required so long as a Default, a
Manager 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 the Borrower and the Manager in each Borrowing Base Certificate).



     “Insolvency Event” means any condition or event set forth in Section 9.01(g).



     “Insurance Management Agreement” means the Amended and Restated Insurance Management
Agreement, substantially in the form of Exhibit I hereto, dated as of the Amendment Closing
Date, between the Borrower and the Manager.



     “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 Amendment Closing Date to
the first Calculation Date, and (ii) thereafter, the period from the last day of the immediately
preceding Interest Period to the next succeeding Calculation Date; provided that the final
Interest Period shall end on but exclude the Termination Date.



     “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.



     “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.



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21











 





     “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, Lessee
Consents 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.



     “Legal Final Maturity Date” means the 30th anniversary of the Amendment
Closing Date.



     “Lender” means each Committed 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.



     “Lessor Rights Notice” has the meaning set forth in the Form of Notice of Lease
Assignment in the form of Exhibit E-4 hereto or the Form of Lessee Consent and Agreement in
the form of Exhibit E-3 hereto, as the case may be.



     “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 Fee” has the meaning set forth in Section 2.09(a).


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     “Liquidity Reserve Account” means the Liquidity Reserve Account established by the
Depositary pursuant to the Depository Agreement.



     “Liquidity Reserve Target Amount”, as calculated on any Calculation Date, means an
amount equal to twelve times the aggregate interest expense payable on the Loans for the Interest
Period ending on such Calculation Date.



     “Liquidity Reserves” means amounts deposited in the Liquidity Reserve Account.



     “Loan” means a loan made under Section 2.01.



     “Loan Documents” means this Agreement, the Notes, the Performance Guaranty and the
Collateral Documents, 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.



     “London Interbank Offered Rate” means, for any Interest Period:




     (i) 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 an
average British Bankers Association Interest Settlement Rate 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




     (ii) if the rate referred to in clause (i) 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 an average British Bankers Association Interest
Settlement Rate for one-month deposits in Dollars (for delivery on the first day of such
Interest Period), determined as of approximately 11:00 A.M. two Business Days prior to the
first day of such Interest Period; or




     (iii) if the rates referenced in the preceding clauses (i) and (ii) 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, 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




     (iv) the rates referenced in the preceding clauses (i), (ii) and
(iii) are not available or are not established for any reason for any Interest
Period, the “London Interbank Offered Rate” shall equal the Corporate Base Rate for each day
during such Interest Period.



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     “Maintenance Reserve Account” means the Maintenance Reserve Account established by the
Depositary pursuant to the Depository Agreement.



     “Management Agreement” means the Management Agreement, substantially in the form of
Exhibit H hereto, dated as of the date hereof, among the Borrower, the Agent and the
Manager.



     “Management Documents” means the Management Agreement, the Insurance Management
Agreement, the Administrative Services Agreement and the Marks Company Servicing Agreement,
collectively.



     “Manager” means TILC, and its successors and permitted assigns.



     “Manager Advances” means any advance (other than any advance giving rise to a
Reimbursement Amount) made by the Manager (from time to time in the Manager’s sole discretion) to
the Borrower in respect of one or more delinquent Lease payments which the Manager determines will
ultimately be recoverable to be deposited in the Collection Account on any Settlement Date or
otherwise. Outstanding Manager 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).



     “Manager Default” means a “Manager Default” as defined in the Management Agreement.



     “Manager Event of Default” means a “Manager Event of Default” as defined in the
Management Agreement.



     “Manager’s Fee” means as of any Settlement Date an amount equal to (i) the Base
Component (as defined in the Management Agreement), without giving effect to any adjustment,
amendment or other modification thereto not expressly approved in writing by the Agent (acting with
the consent of the Required Lenders), if the Manager is TILC or one of its Affiliates, (ii) such
other percentage as may be agreed among the Manager, the Borrower and the Required Lenders, if the
Agent or one of its Affiliates is the Manager or (iii) such other percentage as may be agreed among
the Manager, the Borrower and the Agent, if the Manager is not TILC, the Agent or one of their
Affiliates, in each case of clause (ii) or (iii) the Monthly Rent actually
collected under the Portfolio Leases during the measuring period ending on the Calculation Date
immediately preceding such Settlement Date.



     “Manufacturer” means the relevant manufacturer of each Railcar.



     “Margin Stock” means “margin stock” as such term is defined in Regulation U.



     “Marks” means identification marks of Railcars.



     “Marks Company” means Trinity Marks Company, a Delaware business trust, and its
successors.



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Warehouse Loan Agreement

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     “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 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.



     “Material Adverse Effect” means (i) any material adverse effect upon the operations,
business, properties or condition (financial or otherwise) of Trinity or 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), (ii) a material
adverse effect on the ability of Trinity, the Borrower or any other Facility Party to consummate
the transactions contemplated hereby to occur on the Closing Date or the Amendment Closing Date,
(iii) a material impairment of the ability of Trinity or any Facility Party to perform any of its
obligations under any Transaction Document or (iv) a material impairment of the rights and benefits
of the Lenders under any Loan Document.



     “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.



     “Modifications and Improvements Accounts” 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 Railcar based upon the original purchase price therefor paid by
the Borrower (in the case of Railcars purchased by the Borrower from a seller other than TILC) or
TILC (in the case of Railcars transferred to the Borrower under the Asset Contribution and Purchase
Agreement), using the straight-line method of depreciation and assuming a 10% residual value and a
useful life of 35 years from the date of manufacture.



     “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”.



Amended and Restated
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     “Monthly Report” means a report by the Manager in substantially the form of
Exhibit A-5 hereto or such other form as may hereafter be agreed by the Manager and the
Agent, with appropriate insertions, or with such other changes as may be reasonably agreed to by
the Agent.



     “Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and its
successors or, absent any such successor, such nationally recognized statistical rating
organization as the Borrower and the Agent may select.



     “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).



     “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.



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     “Obligations” means, at any date, (i) all Credit Obligations and (ii) all Derivatives
Obligations of the Borrower owed or owing to any Derivatives Creditor.



     “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.



     “Partners” means TILX GP II, LLC, a Delaware limited liability company, as general
partner, TILX LP II, LLC, a Delaware limited liability company, as limited partner, and their
respective successors.



     “Partnership” means Trinity Rail Leasing II, L.P., a Delaware limited partnership, and
its successors.



     “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.



     “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.



     “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 TILC, as applicable.



     “Performance Guaranty” means the Amended and Restated Performance Guaranty,
substantially in the form of Exhibit G hereto, dated as of the Amendment Closing Date, by
Trinity in favor of the Collateral Agent for the benefit of the Lenders.



     “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 Interim Outstanding Principal Amount” means (a) with respect to the first
Scheduled Payment Date, two-thirds (2/3) of the outstanding principal balance of the Loans as of



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the Revolving Termination Date, (b) with respect to the second Scheduled Payment Date,
one-third (1/3) of the outstanding principal balance of the Loans as of the Revolving Termination
Date and (c) with respect to the third Scheduled Payment Date, 0% of the outstanding principal
balance of the Loans as of the Revolving Termination Date.



     “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 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 such proceedings
do not involve any imminent danger of the sale, forfeiture or loss of such Railcar or any interest
therein; (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 such proceedings do not involve any imminent danger of the sale, forfeiture or
loss of such Railcar or any interest therein; (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.



     “Physical Inspection Report” means with respect to each Railcar, a physical inspection
report of an independent inspector mutually acceptable to the Borrower and the Agent, which report
shall set forth, among other things, the total number of hours and miles with respect to such
Railcar.



     “Portfolio” means, collectively, all of the Portfolio Railcars and the Portfolio
Leases.



     “Portfolio Lease” means a Lease with respect to a Portfolio Railcar.



     “Portfolio Railcars” 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).



     “Protected Party” means, without duplication, the Agent, the Collateral Agent, the
Depository, 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.



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     “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 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.



     “Rating Agency” means each statistical rating organization, if any, then rating the
Loans.



     “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 Management Agreement.



     “Reimbursement Amount” has the meaning specified in Section 2.07(c)(i).



     “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 Railcars not subject to a Lease, a Railcar
or Railcars having (in the aggregate) a Fair Market 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, (x) the Agent and (y) Lenders whose aggregate
Credit Exposure (as hereinafter defined) constitutes more than 70% of the Credit Exposure of all



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Lenders at such time. For purposes of the preceding sentence, the term “Credit Exposure” as
applied to each Lender shall mean (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 Loans of such Lender.



     “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;




     (ii) in respect of any Hedging Event listed in clause (i)(C) of the definition
thereof, the period of 20 Business Days from (but excluding) the date any such notice is
received by the Borrower; and




     (iii) 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 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, manager, trustee or Person performing similar management
functions in respect thereof). 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.



     “Revolving Termination Date” means the earlier of (i) August 7, 2009, or such later
date to which the Revolving Termination Date may have been extended pursuant to Section
2.08, (ii) unless waived by the Required Lenders, the date upon which any Manager Event of
Default shall occur or (iii) such earlier date upon which the Commitments shall have been
terminated in their entirety in accordance with this Agreement.



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     “S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., a New
York corporation, and its successor or, absent any such successor, such nationally recognized
statistical rating organization as the Borrower and the Agent may select.



     “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.



     “Scheduled Payment Date” means each of (i) the first Settlement Date which falls 180
days or more after the Revolving Termination Date, (ii) the sixth Settlement Date thereafter and
(iii) the sixth Settlement Date after the date set forth in clause (ii) herein.



     “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, Trinity
and/or their Affiliates, and involving all or any of the Portfolio Railcars and Portfolio Leases.



     “Security Agreement” means the Amended and Restated Security Agreement, substantially
in the form of Exhibit E-1 hereto, dated as of the Amendment 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.



     “Settlement Date” means the 15th 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.



     “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,



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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 equitable remedy, is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.



     “Specialty Railcar” means a Railcar with a non-standard design and specification which
is produced in a limited production run and whose application is limited to a small number of
end-users.



     “STB” means the United States Surface Transportation Board and its successors.



     “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% 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% 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% ownership interest in a partnership, limited
liability company, association or other business entity if such Person or Persons shall be
allocated more than 50% 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.



     “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.



     “Termination Date” means the date on which all outstanding Credit Obligations of the
Borrower have been repaid in full, the Revolving Termination Date has occurred and all Commitments
have been terminated.



     “TILC” means Trinity Industries Leasing Company, a Delaware corporation, and its
successors and permitted assigns.



     “Transaction Documents” means the Loan Documents and the Management Documents,
collectively.



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     “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 Change of Control” means the occurrence of any of the following events:




     (i) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the
Exchange Act) has become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a Person shall be deemed to have “beneficial ownership” of all
securities that any such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), by way of merger, consolidation or
otherwise, of 35% or more of the Equity Interests of Trinity on a fully-diluted basis after
giving effect to the conversion and exercise of all outstanding Equity Equivalents (whether
or not such securities are then currently convertible or exercisable); or




     (ii) during any period of two consecutive calendar years, individuals who at the
beginning of such period constituted the board of directors (or persons performing similar
functions) of Trinity together with any new members of such board of directors whose
elections by such board of directors or whose nominations for election by the stockholders
of Trinity was approved by a vote of a majority of the members of such board of directors
then still in office who either were directors at the beginning of such period or whose
election or nomination for election was previously so approved, cease for any reason to
constitute a majority of the directors of Trinity still in office.



     “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.



     “Trinity Party” has the meaning set forth in Section 4.02(b).



     “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 the London Interbank
Offered Rate 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.



     “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 finding 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.



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     “Unused Commitment 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.



     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.



ARTICLE II




THE CREDIT FACILITY




     SECTION 2.01 Commitment to Lend. (a) 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 any 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 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 each Funding Date during the Availability Period in order to fund the acquisition of
Railcars and related Leases by the Borrower on such Funding Date. The Loans advanced on any
Funding Date with respect to any Railcars and related Leases shall not: (i) in the case of any
Committed Lender, exceed (after giving effect to all Loans of such Committed Lender and any Conduit
Lender designated by such Committed Lender repaid concurrently with the making of such Loans) its
Available Commitment; (ii) exceed the lesser of (A) the Unused Commitment Amount and (B) the
product of the Advance Rate multiplied by the aggregate Fair Market Value of all Eligible Railcars
included in such Railcars; or (iii) when added to the aggregate amount of the Loans then
outstanding (after giving effect to all Loans repaid concurrently with the making of such Loans),
exceed the lesser of (A) the Commitment Amount and (B) the Borrowing Base (after giving effect to
the addition to and/or removal of the respective Fair Market Values of any Eligible Railcars to be
added to or removed from the Portfolio on such Funding Date). Each Borrowing shall be in a minimum
aggregate principal amount of $5,000,000, in the case of the first Borrowing hereunder, or
$1,000,000, in the case of subsequent Borrowings, and shall be made from the several Committed
Lenders ratably in proportion to their respective Commitments. The Lenders have no obligation to
make any Loan hereunder except as expressly set forth in this Agreement. Within the foregoing
limits, the Borrower may borrow under this Section 2.01, repay, or, to the extent permitted
by Section 2.07, prepay, Loans and reborrow under this Section 2.01. In connection
with the transactions on any Funding Date, the Agent may in its sole discretion grant the Borrower
a temporary waiver for a specified period of time to perform its obligations under clauses
(i) or (ii) of the penultimate sentence of clause (c) of Section 2.02
and



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to fulfill the conditions set forth in Section 4.03 (other than clauses (b),
(c), (d), (g) or (n) thereof).




     (b) Notwithstanding any other provision of this Agreement which requires Borrowings to be made
from the Committed Lenders (or from their related Conduit Lenders) ratably in proportion to the
respective Commitments of such Committed Lenders, or which requires payments of principal and
interest on the Loans to be made and allocated, or Loans to be continued or converted, based on
Commitment Percentages rather than outstanding principal amounts:




     (i) if, as a result of any increase in a Committed Lender’s Commitment, its Commitment
Percentage is greater than the percentage which the Loans of such Committed Lender and its
related Conduit Lenders constitutes of the aggregate outstanding Loans of all Lenders, then
any further Borrowing will be made from such Committed Lender and its related Conduit
Lenders on a non-pro-rata basis until their outstanding Loans constitute the same percentage
of all the outstanding Loans as such Committed Lender’s Commitment Percentage,




     (ii) payments of principal and interest on the Loans will be made to the Lenders
according to the respective outstanding principal amounts of such Loans, and




     (iii) outstanding Loans will be continued and converted according to their outstanding
principal amounts rather than the Committed Percentages of the applicable Lenders.



     SECTION 2.02 Procedures for Borrowing.



     (a) Requests; Delivery of Funding Packages. The Borrower may from time to time
provide the Agent with a Request, signed by a Responsible Officer of the Borrower, to add
additional Railcars and related Leases to the Portfolio. 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 such 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, as applicable) 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 any), 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. The Agent shall determine, with
exercise of its sole discretion, whether or not to include each Railcar and Lease described in any
Request and related Funding Package in the Portfolio; provided that, in the case of any
Railcar of any Designated Type which, if included in the Portfolio, would cause the Aggregate FMV
of all



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Portfolio Railcars of such Designated Type to exceed 30% of the Commitment Amount, the written
approval of the Agent (acting with consent of the Required Lenders) shall be required to approve
such Railcar for inclusion in the Portfolio. Within six 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 added (subject to the
terms and conditions of this Agreement) to the Portfolio. 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 third Scheduled Payment Date.



     (c) Notice of Borrowings. Upon approval by the Agent (with the consent of the
Required Lenders, if required) of a Railcar and any related Lease to be added to the Portfolio in
accordance with Section 2.02(b) (but in any event no more frequently than once in any
week), the Borrower may, subject to the terms and conditions of this Agreement, borrow Loans in
respect of each such Railcar and related Lease which is an Eligible Railcar and/or Eligible Lease,
as applicable. In such event, the Borrower shall give the Agent a Notice of Borrowing not later
than 11:00 A.M. on the second Business Day prior to the date of the proposed Funding Date,
specifying:




     (i) the proposed Funding Date of such Borrowing, which shall be a Business Day no
earlier than ten 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 such Funding Date; and




     (iii) a description of the Eligible Railcars to be financed and the Eligible Lease(s)
to be pledged on such Funding Date (which may be by cross reference to or attachment of the
related Request);


and attaching a pro forma 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. Upon the request of any Committed Lender, the Borrower shall deliver
to such Committed Lender a copy of the Funding Package with respect to all Railcars funded on any
Funding Date within 10 days after such request.




     SECTION 2.03 Notice to Lenders; Funding of Loans.



     (a) Notice to Lenders. Upon receipt of a Notice of Borrowing, the Agent shall
promptly deliver to each Committed Lender a Financing Notice notifying such Committed



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Lender of such Funding Date and of such Committed Lender’s ratable share of the Loans referred
to therein.



     (b) Funding of Loans. Not later than 11:00 A.M. on the applicable 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
Agent at the Agent’s Office. Unless the Agent determines that any applicable condition specified
in Article IV has not been satisfied or waived, the Agent shall, by 2:30 P.M., make the
amount of such Borrowing available to the Borrower at 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 applicable Funding Date, the Agent shall return to the Lenders their respective Loans
advanced pursuant to this Section 2.03.



     A 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 date of any Borrowing that such Lender
will not make available to the Agent such Lender’s share of such Borrowing, the Agent may assume
that such Lender has made such share available to the Agent on the Funding Date of such Loan in
accordance with subsection (b) of this Section, and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such share available to the Agent, 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 interest 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
such 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 any Borrowing hereunder shall not relieve any other Committed Lender of
its obligation, if any, hereunder to make any Loan on the Funding Date of such Borrowing, 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 such Funding Date.



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     (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 any 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
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 each Loan made by
such Lender from time to time, 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



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Loans 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 Loans.



     (e) Note Endorsements. Each Lender having a Note shall record the date and amount of
each Loan made by it and the date and amount of each payment of principal made 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 each 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 and the applicable Lender no longer has any Commitment
outstanding, 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) Each Loan shall bear interest on the outstanding principal
amount thereof, for each day (excluding the last day) during each Interest Period applicable
thereto, at a rate per annum equal to the Applicable Rate for such day, or if any Conduit Lender
shall so designate (in accordance with the definition of CP Rate) for any Loan funded and
maintained by such Conduit Lender through the issuance of commercial paper, the CP Rate for such
day; provided that any change to the interest rate shall not take effect until the next
succeeding Interest Period after such designation. Such interest shall be payable in arrears on
each Settlement Date and on the Termination Date.




     (ii) 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)(i)) on the outstanding principal amount thereof, for each day
(excluding the last day) during each Interest Period applicable thereto, 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,



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the “Aggregated Default Interest”). Such Aggregated Default Interest shall
bear interest on the outstanding amount thereof, for each day during each Interest Period
applicable thereto, at a rate per annum equal to the Aggregated Default Interest Rate and
such accrued interest shall be aggregated on the last day of such Interest Period with the
Aggregated Default Interest and shall be deemed “Aggregated Default Interest” upon such
aggregation. Aggregated Default Interest and the interest thereon 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 herein. The Agent 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 each of the first two Scheduled
Payment Dates, the Borrower shall repay, and there shall become due and payable (together with
accrued interest thereon), to the Collection Account a principal amount of the Loans equal to the
excess (if any) of (x) the aggregate principal amount of the Loans outstanding as of such
Scheduled Payment Date minus (y) the Permitted Interim Outstanding Principal Amount
applicable to such Scheduled Payment Date. On the third Scheduled Payment Date, the Borrower shall
repay, and there shall become due and payable, the remainder of the aggregate outstanding principal
amount of the Loans and all accrued interest thereon (including all Aggregate Default Interest and
all accrued interest thereon), and the Loans of each Lender shall be ratably repaid. In the event
that any of such payments are not made when due, the Agent may, with the prior written consent of
each Lender (which such consent shall be in the sole discretion of each such Lender) extend any
such payment date on terms satisfactory to such Lenders (in their sole discretion);
provided that, any such extension shall not extend any such payment beyond the Legal Final
Maturity Date.



     SECTION 2.07 Prepayments.



     (a) Voluntary Prepayments. The Borrower shall have the right voluntarily to prepay
Loans in whole or in part without premium or penalty; provided, however, that (i)
each partial prepayment of 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 such Loan 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 Loans as provided
in clauses (i) through (v) 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.



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     (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 (as of the Calculation Date
immediately preceding such Settlement Date in the case of any Settlement Date occurring
prior to the Revolving Termination Date) and, at the Agent’s discretion (subject to
Section 6.13(c)), the Liquidity Reserve Account shall be applied (and the Loans,
together with other Obligations then due, shall be prepaid to the extent of cash available
therefore) 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 next succeeding Settlement Date
(or, if such Collateral Deficiency exists solely as a result of an exclusion of a
designation by the Agent of any Designated Ineligible Type of Railcar or Lease or as a
result of an exclusion of one or more Eligible Railcars pursuant to clause (xiv) of
the definition of “Excluded Assets Amount”, 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 acquire by capital
contribution additional Eligible Railcars and/or Eligible Leases approved by the Agent in
its sole discretion pursuant to Section 2.02 and/or other collateral acceptable to
the Agent 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,
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.




     (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



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extent required to cure each Event of Default if such Event of Default can be
cured in full solely by the payment of cash or immediately available funds; and




     (b) at any other time, such Net Cash Proceeds not otherwise required to be paid
into the Collection Account pursuant to Section 2.07(b)(iii) shall be applied in
accordance with the provisions of clauses second, third, fourth, fifth, sixth,
seventh, 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) or
Section 2.07(b)(v)(b), together with the occurrence of any 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 Collateral
Deficiency, such payment amount shall be increased (up to the amount of the total Net Cash
Proceeds being applied on such date) to the extent required to prevent such Collateral
Deficiency from occurring.



     (c) Application of Payments and Prepayments.




     (i) Application of Collections During the Availability Period. Subject to
Section 2.07(c)(iii), so long as no Manager Default or Manager Event of Default has
occurred and is continuing, on each Settlement Date during the Availability Period, all
amounts on deposit in the Collection Account as of the Calculation Date immediately
preceding such Settlement Date and amounts which the Agent elects to apply from the then
current balance of the Liquidity Reserve Account shall be applied by the Depositary in the
following order of priority:




     first, to the Manager, 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 Manager not later
than the Calculation Date immediately preceding such Settlement Date;




     second, to the payment of any fees (including the Liquidity Fee and, if
the Manager is not TILC or one of its Affiliates, the Manager’s Fee payable on such
Settlement Date, together with the aggregate amount of any Manager’s Fees which were
due and payable on any previous Settlement Date and remain unpaid) or indemnities
payable or expenses (including, if the Manager is not TILC or one of its Affiliates,
the aggregate amount of any Reimbursable Amounts payable on such Settlement Date,
together with the aggregate amount of any Reimbursable Amounts which were due and
payable on any previous Settlement Date and



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remain unpaid) permitted under this Agreement or any other Loan Document, in
each case as approved by the Agent;




     third, 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 Manager pursuant to
the Management Agreement) in connection with any Manager 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;




     fourth, to the reimbursement of the Lenders for any amounts paid by the
Lenders to the Agent in compensation for fees and expenses incurred by the Agent and
described in clause second or third of this Section
2.07(c)(i);




     fifth, ratably (x) to the payment of accrued and unpaid interest
(except for Aggregated Default Interest and accrued and unpaid interest thereon) 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;




     sixth, 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;




     seventh, 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;




     eighth, if the Manager is TILC or one of its Affiliates, the Manager’s
Fee and/or Reimbursable Amounts payable on such Settlement Date, together with the
aggregate amount of any Manager’s Fees and/or Reimbursable Amounts which were due
and payable on any previous Settlement Date and remain unpaid;




     ninth, if (A) any amount (a “Reimbursement Amount”) paid by a
Lessee into the Collection Account since the last Settlement Date was specifically
paid to reimburse any expense paid by the Manager under the Management Agreement
(but not to include payments by the Manager in respect of unpaid Monthly Rent
amounts) because the Lessee had failed to pay an amount due or perform an obligation
under the applicable Lease, (B) the Lessee has cured all payment defaults under the
applicable Lease and (C) the Manager has provided the Agent with documentation that
enables the Agent to verify the amounts distributable



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under this clause ninth, to reimburse the Manager for such payment in
an amount up to but not exceeding, the Reimbursement Amount;




     tenth, 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
Collateral Deficiency then exists;




     eleventh, to the Derivatives Creditors for the payment of Derivatives
Termination Values payable by the Borrower;




     twelfth, to reimburse the Manager for outstanding Manager Advances,
together with accrued interest thereon and, thereafter, only if the outstanding
Manager Advances have been paid in full, then to the ratable payment of the unpaid
Aggregated Default Interest and any accrued and unpaid interest thereon;




     thirteenth, deposit to the Maintenance Reserve Account and/or the
Modifications and Improvements Account, in each case the amount determined by the
Borrower in its sole discretion; and




     fourteenth, deposit to the Discretionary Account or, subject to
Section 7.07, otherwise at the direction of the Borrower.




     (ii) Application of Collections Following the Availability Period. 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 the Agent elects
to apply from the then current balance of the Liquidity Reserve Account 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 (A) on each
Settlement Date during the Availability Period on which a Manager Default or Manager Event
of Default has occurred and is continuing and (B) on each Settlement Date occurring on or
after the Revolving Termination Date in the following order of priority:




     first, to the Manager, 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 Manager not later
than the Calculation Date immediately preceding such Settlement Date;




     second, to the payment of any fees (including the Liquidity Fee and, if
the Manager is not TILC or one of its Affiliates, the Manager’s Fee payable on such
Settlement Date, together with the aggregate amount of any Manager’s Fees



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which were due and payable on any previous Settlement Date and remain unpaid)
or indemnities payable or expenses (including, if the Manager is not TILC or one of
its Affiliates, the aggregate amount of any Reimbursable Amounts payable on such
Settlement Date, together with the aggregate amount of any Reimbursable Amounts
which were due and payable on any previous Settlement Date and remain unpaid)
permitted under this Agreement or any other Loan Document, in each case as approved
by the Agent;




     third, 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 Manager pursuant to the Management
Agreement) in connection with any Manager 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;




     fourth, to the reimbursement of the Lenders for any amounts paid by the
Lenders to the Agent in compensation for fees and expenses incurred by the Agent and
described in clause second or third of this Section
2.07(c)(ii);




     fifth, ratably (x) to the payment of accrued and unpaid interest
(except for Aggregated Default Interest and accrued and unpaid interest thereon) 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;




     sixth, 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;




     seventh, 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;




     eighth, if the Manager is TILC or one of its Affiliates, the Manager’s
Fee and/or Reimbursable Amounts payable on such Settlement Date, together with the
aggregate amount of any Manager’s Fees and/or Reimbursable Amounts which were due
and payable on any previous Settlement Date and remain unpaid;




     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 the unpaid Aggregated Default
Interest and any accrued and unpaid interest thereon;



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     tenth, to the Derivatives Creditors for the payment of Derivatives
Termination Values payable by the Borrower




     eleventh, (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
Manager has provided the Agent with documentation that enables the Agent to verify
the amounts distributable under this clause eleventh, to reimburse the
Manager for such payment in an amount up to but not exceeding, the Reimbursement
Amount and (B) to reimburse the Manager for outstanding Manager Advances, together
with accrued interest thereon;




     twelfth, deposit to the Maintenance 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.




     (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 the Agent elects to
apply from the then current balance of the Liquidity Reserve Account 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 in the following order of priority:




     first, to the Manager, 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 Manager not later
than the Calculation Date immediately preceding such Settlement Date;




     second, to the payment of any fees (including the Liquidity Fee and, if
the Manager is not TILC or one of its Affiliates, the Manager’s Fee payable on such
Settlement Date, together with the aggregate amount of any Manager’s Fees which were
due and payable on any previous Settlement Date and remain unpaid) or indemnities
payable and expenses (including, if the Manager is not TILC or one of its
Affiliates, the aggregate amount of any Reimbursable Amounts payable on such
Settlement Date, together with the aggregate amount of any Reimbursable



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Amounts which were due and payable on any previous Settlement Date and remain
unpaid) permitted under this Agreement or any other Loan Document, in each case as
approved by the Agent;




     third, 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 Manager pursuant to the Management
Agreement) in connection with any Manager 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;




     fourth, to the reimbursement of the Lenders 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 third of this Section
2.07(c)(iii);




     fifth, ratably (x) to the payment of accrued and unpaid interest
(except for Aggregated Default Interest and accrued and unpaid interest thereon) 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;




     sixth, 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;




     seventh, to the ratable payment of the unpaid principal amount of the
Loans;




     eighth, to the Derivatives Creditors for the payment of Derivatives
Termination Values payable by the Borrower;




     tenth, to the ratable payment of the unpaid Aggregated Default Interest
and any accrued and unpaid interest thereon;




     eleventh, provided that no Manager Event of Default has
occurred and is continuing and provided that the Manager is TILC or one of
its Affiliates, the Manager’s Fee and/or Reimbursable Amounts payable on such
Settlement Date, together with the aggregate amount of any Manager’s Fees and/or
Reimbursable Amounts which were due and payable on any previous Settlement Date and
remain unpaid;




     twelfth, (A) if (x) the Lessee has paid any Reimbursement Amount and
(y) the Manager has provided the Agent with documentation that enables the Agent to
verify the amounts distributable under this clause twelfth, to reimburse



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the Manager for such payment in an amount up to, but not exceeding, the
Reimbursement Amount and (B) to reimburse the Manager for outstanding Manager
Advances, together with accrued interest thereon; and




     thirteenth, 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 during
the Availability Period, 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 Manager and Borrower that no Default or Manager
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
in accordance with Section 2.07(c).



     SECTION 2.08 Adjustment of Commitments.



     (a) Optional Termination or Reduction of Commitments (Pro Rata). The Borrower may
from time to time permanently reduce or terminate the Committed Amount in 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 five Business Days’
prior written or telecopy notice to the Agent, which notice shall be irrevocable once delivered to
the Agent; provided, however, no such termination or reduction shall be made which
would cause the aggregate principal amount of the outstanding Loans to exceed the lesser of (i) the
Committed Amount as so reduced and (ii) the Borrowing Base at such time. 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 any Lender to fund its Loans at the Adjusted
Eurodollar Rate has been suspended pursuant to Section 3.02 or (iii) 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 Commitment to one or more
existing



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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 (the
“Replacement Date”) 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 Loans 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 all Loans 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 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 any Loans made or
any other actions taken by such removed Protected Party while it was a Protected Party.




     (c) Automatic Termination. The Commitments of the Committed Lenders shall
automatically terminate on the Revolving Termination Date.



     (d) Optional Extensions of Commitments.




     (i) If the Borrower shall request, by notice to the Agent not less than 30 days prior
to the Revolving Termination Date then in effect, that the Availability Period be extended
until the date which is 364 days after such Revolving Termination Date, then the Agent shall
promptly (but in no event later than 2 days after receipt) notify each Committed Lender of
such request, and each Committed Lender shall notify the Borrower and the Agent not more
than 15 Business Days after the date on which the Agent shall have received the Borrower’s
request (which date shall be set forth in the notice of such request given by the Agent) of
its election so to extend or not extend the Availability Period. Any Committed Lender which
shall not timely notify the Agent of such election shall be deemed to have elected not to
extend such Availability Period.



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     (ii) If one or more Committed Lenders shall timely notify the Agent pursuant to
clause (d)(i) of this Section 2.08 of its election not to extend the
Availability Period or shall be deemed to have elected not to extend the Availability Period
by virtue of having not timely notified the Agent of its election to extend such
Availability Period, then the Agent shall so advise the Borrower and the remaining Lenders,
and the remaining Lenders then maintaining a Commitment or any of them shall have the right
(but not the obligation), upon notice to the Agent not later than the Business Day
immediately preceding the applicable Revolving Termination Date, to increase their
respective Commitments by an amount equal in the aggregate to the Commitments of the
Committed Lenders who have, or have been deemed to have, elected not to extend the
Availability Period. Each Lender electing to increase its Commitment hereunder shall
specify in its notice to the Agent the amount by which it is willing to increase its
Commitment; provided that if the aggregate amount of proposed increases by all
remaining Lenders shall equal or exceed the aggregate Commitments of those Lenders who have,
or have been deemed to have, elected not to extend the Availability Period, the amount of
any increase in Commitments shall not exceed for any Lender the product of (A) the quotient
of (x) such Lender’s Commitment divided by (y) the aggregate Commitments of all the
remaining Lenders (in each case determined before giving effect to any increase in the
Commitments of the remaining Lenders pursuant to this subsection (c)) multiplied by
(B) the aggregate Commitments of the Lenders who have, or have been deemed to have, elected
not to extend the Availability Period. Each increase in the Commitment of a Lender
hereunder shall be evidenced by a written instrument executed by such Lender and the Agent
and shall take effect on the Revolving Termination Date in effect for the Lenders who have,
or have been deemed to have, elected not to extend the Availability Period.




     (iii) If the aggregate Commitments of the Lenders shall exceed the aggregate amount by
which the remaining Lenders have agreed to increase their Commitments pursuant to
subsection (d)(ii) of this Section 2.08, the Borrower may, with the approval
of the Agent, designate one or more Eligible Assignees willing to extend Commitments until
the date which is 364 days after the Revolving Termination Date in effect for the Lenders
who have, or have been deemed to have, elected not to extend the Availability Period in an
aggregate amount not greater than such excess. Any such Eligible Assignee shall, on or
prior to the Revolving Termination Date in effect for the Lenders who have, or have been
deemed to have, elected not to extend the Availability Period, execute and deliver to the
Borrower, the Agent and each remaining Lender an instrument, satisfactory to the Borrower
and the Agent, setting forth the amount of its Commitment and containing its agreement to
become, and to perform all the obligations of, a Lender hereunder. The Commitment of such
Eligible Assignee shall become effective, and such Eligible Assignee shall become a
Committed Lender hereunder, on the Revolving Termination Date then in effect for the Lenders
who have, or have been deemed to have, elected not to extend the Availability Period.




     (iv) The Borrower shall deliver to each Eligible Assignee (upon request of such
Eligible Assignee), on the Revolving Termination Date in effect for the Lenders who have, or
have been deemed to have, elected not to extend the Availability Period, a



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Note evidencing the Borrower’s obligation to pay Loans made by such Eligible Assignee
pursuant to this Agreement.




     (v) If, after giving effect to any increase in the Commitments of one or more remaining
Lenders pursuant to clause (ii) above and any assignments to or new Commitments of
one or more Eligible Assignees pursuant to clause (iii) above, the extension of the
Availability Period as provided in this Section 2.08(c) shall not have been approved
by Lenders holding Commitments equal in the aggregate to 100% of the Committed Amount, then
the Availability Period shall not be extended but shall continue in effect until the
Revolving Termination Date and shall then terminate. If Lenders holding Commitments equal
in the aggregate to 100% of the Committed Amount shall have elected to extend the
Availability Period as provided in this Section 2.08(c), then (A) the Availability
Period with respect to the Commitments of such Lenders and any which becomes a Lender
hereunder shall continue until the date which is 364 days after the Revolving Termination
Date in effect prior to such election and, as to such Lenders, the term “Revolving
Termination Date”, as used herein, shall mean such 364th day; (B) the Commitments of the
Lenders who have, or have been deemed to have, elected not to extend the Availability Period
shall continue in effect until the Revolving Termination Date in effect prior to such
extension and shall then terminate, and, as to such Lenders, the term “Revolving Termination
Date”, as used herein, shall continue to mean such Revolving Termination Date; and (C) on
the Revolving Termination Date in effect prior to such extension, each Lender who has, or
has been deemed to have, elected not to extend the Availability Period shall cease to be a
Lender hereunder; provided that the provisions of this Agreement (including, without
limitation, the provisions of Article III and Sections 11.04 and
11.05) shall continue to govern the rights and obligations of such Lender with
respect to any Loans made.



     SECTION 2.09 Fees.



     (a) Liquidity Fee. On each Settlement Date, the Borrower shall pay to the Agent (or
at the direction of the Agent) for the account of each Committed Lender a fee (the “Liquidity
Fee”) on such Lender’s Commitment Percentage of the daily average Unused Committed Amount for
the Measuring Period ended most recently prior to such Settlement Date, computed at a per annum
rate for each day at a rate equal to 25 basis points. The Liquidity Fee shall commence to accrue
on the Amendment Closing Date and shall be due and payable in arrears on each Settlement Date for
the Measuring Period ending most recently prior to such date, beginning with the first of such
dates to occur after the Amendment Closing Date.



     (b) [RESERVED].



     SECTION 2.10 Pro-rata Treatment. Except to the extent otherwise provided herein,
(including without limitation in Section 2.01 (b)), each Borrowing, each payment or
prepayment of principal of or interest on any Loan, 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



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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 Corporate 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 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



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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, and the last day of such Interest Period shall occur, on the next
succeeding Business Day and interest at the Applicable Rate shall accrue on such amount from the
original due date to such next Business Day; provided, that if such extension would cause
the last day of such Interest Period to occur in a new calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day.



     (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) 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.



     SECTION 2.13 Adjustments to Advance Rate and Borrowing Base. The percentage included
in the definition of “Advance Rate” may be modified (but only to increase such percentage) by
agreement of all of the Lenders and, in the case of any increase in such percentage, subject to
confirmation by each Rating Agency that such increase will not cause either of such rating agencies
to reduce or withdraw its rating of the Notes and/or Loans. The Agent shall give the Borrower, the
Lenders, and each Rating Agency prior notice of any change in such percentage. Any change in any
such percentage shall take effect on the next succeeding Settlement Date.



     SECTION 2.14 Interest Rate Risk Management. The Borrower agrees that, upon the
occurrence of any Hedging Event, it will enter into an Acceptable Derivatives Agreement no later
than the last day of the Required Time Period, using funds available under clause (y) of
clause fifth 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.



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     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).



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, and all liabilities with respect thereto, excluding, in the
case of each Protected Party, 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 (all such non-excluded taxes, duties,
levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as
“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) 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 Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.01) paid by such Protected Party and
any liability (including penalties, interest and expenses) arising therefrom or with respect
thereto.



     (d) Tax Forms and Certificates. 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,



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complete and correct (i) Internal Revenue Service Form W-8-BEN or W-8-ECI, 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 W-8IMY).



     (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(b) with respect to
Taxes imposed by the United States or any political subdivision therein as a result of such
failure; provided, however, that should a Protected Party, which is otherwise
exempt from or subject to a reduced rate of withholding tax, become subject to Taxes because of its
or any related Lender’s failure to deliver a form required to be delivered hereunder, the Borrower
shall take such steps as such Lender or Protected Party shall reasonably request at such Protected
Party’s cost to assist such Protected Party to recover such Taxes.



     (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 (b) above 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.



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     (g) 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.



     (h) 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).



     (i) 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 (h) 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 any Lender to make, maintain or fund any
of its Loans at a rate based upon the Adjusted Eurodollar 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 Loans of such Lender shall accrue and be payable at the Corporate
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 Corporate Base Rate as provided in this paragraph.



     SECTION 3.03 Increased Costs and Reduced Return. (a) If, on or after the date
hereof, the adoption of or any change in any Applicable Law or in the interpretation or application
thereof applicable to any Protected Party, or compliance by any Protected Party with any request or
directive (whether or not having the force of law) from any central bank or other Governmental
Authority, 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 Loans 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) 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



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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 Adjusted Eurodollar 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 Loans 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 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, regarding capital adequacy, or compliance by such Protected
Party, or its parent corporation, with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or comparable agency, 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 shall, absent
manifest error, be conclusive and binding on the parties hereto.



     (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, 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



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period or any other period. The protection of this Section 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 any Loan 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 last day of the Interest Period 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 applicable London Interbank Offered Rate), 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 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. A certificate of any Protected Party setting forth
any amount or amounts which such Protected Party is entitled to receive pursuant to this Section
shall be delivered to the Borrower and shall be conclusive absent manifest error.



ARTICLE IV




CONDITIONS




     SECTION 4.01 Conditions to Facility Closing. The obligation of each Committed Lender
to make a Loan on the Closing Date is subject to the satisfaction of the following conditions:



     (a) Executed Loan Documents. Receipt by the Agent of duly executed copies of: (i)
this Agreement; (ii) the Notes (if requested under Section 2.04); (iii) the Collateral
Documents (other than the Depositary Agreement); and (iv) all other Loan Documents, each in form
and substance satisfactory to the Agent in its sole discretion.



     (b) Management Documents. Receipt by the Agent of a duly executed copy of each
Management Document, in each case in form and substance satisfactory to the Agent in its sole
discretion.



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     (c) Sale Agreement, etc. Receipt by the Agent of a duly executed copy of the Asset
Contribution and Purchase Agreement, in form and substance satisfactory to the Agent in its sole
discretion.



     (d) Organization Documents. After giving effect to the transactions contemplated by
the Transaction Documents, the ownership, capital, corporate, organizational and legal structure of
each Facility Party shall be reasonably satisfactory to the Lenders, and the Agent shall have
received: (i) a copy of the Organizational Documents of Trinity, each Facility Party, each
Partner, the Partnership and the Marks Company, certified as of a recent date by the Secretary of
State of its respective state of organization, and a certificate as to the good standing of
Trinity, each Facility Party, each Partner, the Partnership and the Marks Company, from such
Secretary of State, as of a recent date; (ii) a certificate of the Secretary or Assistant Secretary
of Trinity, each Facility Party, each Partner, the Partnership and the Marks Company dated the
Closing Date and certifying (A) that the certificate or articles of incorporation or other
Organizational Documents, as applicable, of Trinity, such Facility Party, each Partner, the
Partnership or the Marks Company, as applicable, have not been amended since the date of the last
amendment thereto shown on the related certificate furnished pursuant to clause (i) above;
(B) that attached thereto is a true and complete copy of the agreement of limited partnership,
operating agreement or by-laws of Trinity, such Facility Party, each Partner, the Partnership or
the Marks Company, as applicable, as in effect on the Closing Date and 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 Trinity, such Facility Party, each Partner, the Partnership or the Marks Company,
as applicable, authorizing the execution, delivery and performance of the Transaction Documents to
which it is to be a party and, in the case of the Borrower, the borrowings hereunder, 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 any Transaction Document or
any other document delivered in connection herewith or therewith on behalf of Trinity, such
Facility Party, each Partner, the Partnership or the Marks Company; (iii) a certificate of another
officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (ii) above; and (iv) such other documents as
the Agent or Mayer, Brown, Rowe & Maw, counsel for the Agent, may reasonably request.



     (e) Officer’s Certificate. The Agent shall have received a certificate, dated the
Closing Date and signed by a Responsible Officer of each Facility Party, confirming compliance with
the conditions precedent set forth in paragraphs (b), (c), (d), (g)
and (n) of Section 4.03.



     (f) Opinions of Counsel. On the Closing Date, the Agent shall have received:




     (i) favorable written opinions (including, without limitation, as to true sale and
nonconsolidation matters) of Winston & Strawn, counsel to the Borrower, the Manager and
Trinity, addressed to the Agent and each Lender, dated the Closing Date, substantially in
the form of each of Exhibits D-1, D-4 and D-5 hereto and covering
such additional matters incident to the transactions contemplated hereby as the Agent or the
Required Lenders may reasonably request;



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     (ii) a favorable written opinion of in house counsel to each of the Borrower, the
Manager and Trinity, addressed to the Agent and each Lender, dated the Closing Date,
substantially in the form of Exhibit D-2 hereto and covering such additional matters
incident to the transactions contemplated hereby as the Agent or the Required Lenders may
reasonably request;




     (iii) from special Delaware trust counsel to the Borrower and Wilmington Trust Company,
as Delaware trustee for the Borrower, an opinion addressed to the Agent and each Lender,
dated the Closing Date, substantially in the form of Exhibit D-3 hereto and covering
such additional matters incident to the transactions contemplated hereby as the Agent or the
Required Lenders may reasonably request;




     (iv) from special STB counsel to the Borrower, an opinion addressed to the Agent and
each Lender, dated the Closing Date, substantially in the form of Exhibit D-6 hereto
and covering such additional matters incident to the transactions contemplated hereby as the
Agent or the Required Lenders may reasonably request;




     (v) from special Canadian counsel to the Agent, an opinion addressed to the Agent and
each Lender, dated the Closing Date, substantially in the form of Exhibit D-7 hereto
and covering such additional matters incident to the transactions contemplated hereby as the
Agent or the Required Lenders may reasonably request; and




     (vi) from special counsel to the Marks Company, an opinion addressed to the Agent and
each Lender, dated the Closing Date, substantially in the form of Exhibit D-8 hereto
and covering such additional matters incident to the transactions contemplated hereby as the
Agent or the Required Lenders may reasonably request.



     (g) Perfection of Security Interests; Search Reports. On or prior to the Closing
Date, the Agent shall have received:




     (i) a Perfection Certificate from each Facility Party, each such Perfection Certificate
and all information set forth therein to be correct and complete in all respects;




     (ii) [RESERVED];




     (iii) appropriate financing statements (Form UCC-1 or such other financing statements
or similar notices as shall be required by local law) fully executed 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, to perfect the security interests intended to be created by the Collateral
Documents;




     (iv) all of the Marks Company Interests issued or to be issued to the Borrower on or
prior to the Closing Date, which Marks Company Interests shall be in suitable form for
transfer by delivery or shall be accompanied by duly executed instruments of transfer or
assignment in blank, with signatures appropriately guaranteed, accompanied in each case by
any required transfer tax stamps, all in form and substance satisfactory to the Agent;



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     (v) copies of reports from CSC The United States Corporation Company or other
independent search service reasonably satisfactory to the Agent listing all effective
financing statements that name the Borrower or any other Facility 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




     (vi) 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 3.02 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.



     (h) Marks Company Documents. The Agent shall have received (i) evidence satisfactory
to the Agent that the UTI Trustee under the Marks Company Trust Agreement shall have identified and
allocated or caused to be identified and allocated on the books and records of the Marks Company a
separate portfolio of trust assets consisting of all of the Trinity Marks relating to Portfolio
Railcars and all rights of the Marks Company with respect thereto, including, without limitation,
the right to payment of related Railroad Mileage Credits, and that the Marks Company Delaware
Trustee shall have executed and delivered to the Borrower on behalf of the Marks Company a
certificate evidencing such special unit of beneficial interests, (ii) a supplement to the Marks
Company Trust Agreement, duly executed by TILC and the Marks Company Delaware Trustee, and
certified by a Responsible Officer of the Marks Company Delaware Trustee as a true and correct copy
thereof, creating the special unit of beneficial interests referred to in clause (ii) above
and containing such other provisions as the Agent reasonably may request and (iii) evidence
satisfactory to the Agent that TILC, as servicer of the Marks Company, shall have been instructed,
and shall have agreed, to remit all receipts in respect of the trust assets allocated to the
special unit of beneficial interests referred to in clauses (i) and (ii) above
directly to the Depositary in accordance with the Marks Company Servicing Agreement.



     (i) Evidence of Insurance. Receipt by the Agent of copies of insurance policies or
certificates of insurance of the Borrower evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents, including, but not limited to, naming the Collateral
Agent as additional insured and sole loss payee on behalf of the Lenders.



     (j) Consents and Approvals. On the Closing Date, all necessary governmental (domestic
or foreign), regulatory and third party approvals in connection with the transactions contemplated
by the Transaction Documents and otherwise referred to herein or therein shall have been obtained
and remain in full force and effect.



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     (k) Material Adverse Effect. There shall not have occurred since December 31, 2001
any development or event relating to or affecting Trinity or a Facility Party which has had or
could be reasonably expected to have a Material Adverse Effect.



     (l) Litigation; Judgments. On the Closing Date, there shall be no actions, suits,
proceedings or investigations pending or threatened (i) with respect to this Agreement or any other
Transaction Document or the transactions contemplated hereby or thereby, (ii) against the Borrower
or (iii) against Trinity, the Manager, either Partner, the Partnership 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 exist 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.



     (m) Solvency Certificate. On or prior to the Closing Date, the Borrower shall have
delivered or caused to be delivered to the Agent a solvency certificate executed by a Responsible
Officer of the Borrower, in form and substance satisfactory to the Agent, setting forth the
conclusions that, after giving effect to the consummation of all financings contemplated herein,
the Borrower will be Solvent.



     (n) Financial Information. The Agent shall be reasonably satisfied that the financial
statements referred to in Section 5.05 are not materially inconsistent with the financial
information most recently delivered to the Agent prior to the Closing Date.



     (o) Due Diligence. The Agent shall have completed, and be satisfied with the results
of, its business and legal due diligence review with respect to Trinity and the Facility Parties
and the transactions contemplated hereby, including, without limitation, a due diligence review of
the financial statements of Trinity and the Facility Parties, the tax status of Trinity and the
Facility Parties and an environmental, employee benefits and insurance due diligence review.



     (p) [RESERVED].



     (q) Payment of Fees. All costs, fees and expenses due to the Agent and the Lenders on
or before the Closing Date shall have been paid, in each case to the extent invoiced or otherwise
notified to the Borrower in writing.



     (r) Counsel Fees. The Agent shall have received full payment of the fees and expenses
of Mayer, Brown, Rowe & Maw described in Section 11.04 which are billed through the Closing
Date.



     All corporate and legal proceedings and instruments and agreements relating to the
transactions contemplated by this Agreement and the other Transaction Documents or in any other
document delivered in connection herewith or therewith shall be satisfactory in form and substance
to the Agent and its counsel, and the Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings, governmental approvals, good
standing certificates and bring-down telegrams, if any, which the Agent reasonably may have
requested in connection therewith, such documents and papers where



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appropriate to be certified by proper corporate or Governmental Authorities. The documents
referred to in this Section shall be delivered to the Agent no later than the Closing Date. The
certificates and opinions referred to in this Section shall be dated the Closing Date.



     The requirement that any document, agreement, certificate or other writing be satisfactory to
the Required Lenders shall be deemed to be satisfied if (i) such document, agreement, certificate
or other writing was delivered to the Lenders not less than two Business Days prior to the Closing
Date, (ii) such document, agreement, certificate or other writing is satisfactory to the Agent and
(iii) Lenders holding at least 50% of the Commitments have not objected in writing to such
document, agreement, certificate or other writing to the Agent prior to the Closing Date.



     Promptly after the Closing Date occurs, the Agent shall notify the Borrower and the Lenders of
the Closing Date, and such notice shall be conclusive and binding on all parties hereto.



     SECTION 4.02 Conditions to Amendment Closing Date. This Agreement as amended on the
Amendment Closing Date shall become effective upon the receipt by the Agent of the following:



     (a) Executed Amended Loan Documents. The Agent shall have received fully-executed
original copies of this Agreement and the other Amended Loan Documents.



     (b) Organization Documents of the Trinity Parties. The Agent shall have received:
(i) a copy of the Organizational Documents of Trinity and each Facility Party (each such Person, a
“Trinity Party”), certified as of a recent date by the Secretary of State of its state of
organization, to the extent such documents have been amended, supplemented or modified since June
27, 2002; (ii) a certificate as to the good standing of each Trinity Party from such Secretary of
State, as of a recent date; (ii) a certificate of the Secretary or Assistant Secretary of each
Trinity Party dated the Amendment Closing Date and certifying (A) that the certificate or articles
of incorporation or other Organizational Documents, as applicable, of such Trinity Party have not
been amended either since the date of the last amendment thereto shown on the related certificate
furnished pursuant to clause (i) above or since June 27, 2002, if no certificate is
required to be furnished pursuant to clause (i) above; (B) that attached thereto is a true
and complete copy of the agreement of limited partnership, operating agreement or by-laws of such
Trinity Party, as in effect on the Amendment Closing Date (or a certification that such documents
have not been amended, supplemented, or otherwise modified since June 27, 2002) and 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 Trinity Party, authorizing the execution, delivery and performance
of the Amended 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 any Amended Loan Document or any other document
delivered in connection herewith or therewith on behalf of the such Trinity Party; (iii) a
certificate of another officer as to the incumbency and specimen signature of the Secretary or
Assistant Secretary executing the certificate pursuant to clause (ii)



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above; and (iv) such other documents as the Agent or Mayer, Brown, Rowe & Maw, counsel for the
Agent, may reasonably request.




     (c) Organization Documents of the Collateral Agent. The Agent shall have received:
(i) a copy of the Organizational Documents of the Collateral Agent, certified as of a recent date
by the Secretary of State of its state of organization, and a certificate as to the good standing
of the Collateral Agent, from such Secretary of State, as of a recent date; (ii) a certificate of
the Secretary or Assistant Secretary of the Collateral Agent dated the Amendment Closing Date and
certifying (A) that the certificate or articles of incorporation or other Organizational Documents,
as applicable, of the Collateral Agent have not been amended since the date of the last amendment
thereto shown on the related certificate furnished pursuant to clause (i) above; (B) that
attached thereto is a true and complete copy of the agreement of limited partnership, operating
agreement or by-laws of the Collateral Agent, as in effect on the Amendment Closing Date and 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 the Collateral Agent authorizing the execution, delivery and
performance of the Amended 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 any Amended Loan Document or any other
document delivered in connection herewith or therewith on behalf of the Collateral Agent; (iii) a
certificate of another officer as to the incumbency and specimen signature of the Secretary or
Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such
other documents as the Agent or Mayer, Brown, Rowe & Maw, counsel for the Agent, may reasonably
request.



     (d) Evidence of Insurance. Receipt by the Agent of copies of insurance policies or
certificates of insurance of the Borrower evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents, including compliance with Section 6.06.



     (e) Perfection of Security Interests; Search Reports. On or prior to the Amendment
Closing Date, the Agent shall have received:




     (i) a Perfection Certificate from each Facility Party, each such Perfection Certificate
and all information set forth therein to be correct and complete in all respects;




     (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 Collateral Agent, to perfect the security interests intended to be created by the
Collateral Documents and the assignment to the Collateral Agent of any existing security
interests in the Collateral granted to the Agent;




     (iv) copies of reports from CT Corporation Service System or other independent search
service reasonably satisfactory to the Agent listing all effective



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financing statements that name the Borrower or any other Facility 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 3.02 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.



     (f) Opinions of Counsel. On the Amendment Closing Date, the Agent shall have
received:




     (i) a favorable written opinion of Kaye Scholer LLC, counsel to the Borrower, the
Manager and Trinity, addressed to the Agent and each Lender, dated the Amendment Closing
Date, and in form and substance satisfactory to the Agent;




     (ii) a favorable written opinion of in house counsel to each of the Borrower, the
Manager and Trinity, addressed to the Agent and each Lender, dated the Amendment Closing
Date, and in form and substance satisfactory to the Agent;




     (iii) from special Delaware trust counsel to the Borrower and Wilmington Trust Company,
as Delaware trustee for the Borrower, an opinion addressed to the Agent and each Lender,
dated the Amendment Closing Date, in form and substance satisfactory to the Agent;




     (iv) from special STB counsel to the Borrower, an opinion addressed to the Agent and
each Lender, dated the Amendment Closing Date, and in form and substance satisfactory to the
Agent;




     (v) a favorable written opinion of counsel to the Collateral Agent, dated the Amendment
Closing Date, and in form and substance satisfactory to the Agent;




     (vi) from special Canadian counsel to the Agent, an opinion addressed to the Agent and
each Lender, dated the Amendment Closing Date, and in form and substance satisfactory to the
Agent; and



     (g) Customer Collections Account Documents. The Agent shall have received a
supplement to the Customer Collections Account Administration Agreement, duly executed by TILC, the
Collateral Agent, the Agent, and the Delaware Trustee of the Customer Collections Account
Administration Agreement, and certified by a Responsible Officer of the Delaware Trustee as a true
and correct copy thereof.



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     The Agent shall have received all information and copies of all documents and papers,
including records of corporate proceedings, governmental approvals, good standing certificates and
bring-down telegrams, if any, which the Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper corporate or
Governmental Authorities. The documents referred to in this Section shall be delivered to the
Agent no later than the Amendment Closing Date. The certificates and opinions referred to in this
Section shall be dated the Amendment Closing Date.



     Promptly after the Amendment Closing Date occurs, the Agent shall notify the Borrower and the
Lenders of the Amendment Closing Date, and such notice shall be conclusive and binding on all
parties hereto.



     SECTION 4.03 Conditions to Each Funding Date. The obligation of any Committed Lender
to make a Loan on the occasion of any Borrowing is subject to the prior approval by the Agent (and
the Required Lenders, as applicable) at the Borrower’s request to add the applicable Railcars and
Leases to be acquired on such Funding Date to the Portfolio 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
Trinity and 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 such date except to the extent they
expressly relate to an earlier date.



     (c) No Default. No Default, Event of Default, Manager Default or Manager Event of
Default 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 a Loan
(and the application of the proceeds thereof), there shall not exist any Collateral Deficiency.



     (e) Leases; Additional Collateral Certificate. Subject to the provisions of Section
3.17(h) of the Asset Contribution and Purchase Agreement, receipt by the Agent of (i) the
originally executed chattel paper counterpart of each Lease applicable to each Railcar which is to
become a Portfolio Railcar on such Funding Date, in each case bearing the Chattel Paper Legend and
marked as “Counterpart No. 1” or, if the Agent determines in its sole discretion that an originally
executed counterpart of a Lease for any such Railcar with such legend and marking does not exist
and is not necessary to perfect assignment of such Lease to the Collateral Agent hereunder, an
originally executed counterpart of such Lease without such legend and marking; (ii) a Notice of
Lease Assignment with respect to such Lease, substantially in the form of Exhibit E-4
hereto, duly executed and delivered by the Borrower, or 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 Additional Collateral Certificate with respect
to each relevant Railcar and Lease.



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     (f) Recordations and Filings. The Agent shall have received evidence satisfactory to
it in its reasonable discretion from the official records of the STB and the Registrar General of
Canada (and a legal opinion in form and substance reasonably acceptable to the Agent) that the
Security Agreement (or a memorandum thereof) and each applicable Bill of Sale, Security Agreement
Supplement (as defined in the Security Agreement) and/or Additional Collateral Certificate have
been registered, recorded or filed for recordation in accordance with Applicable Law, together with
evidence that all necessary publications with respect thereto in the Canada Gazette have been made
or arranged to be made promptly following such Funding Date.



     (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) Insurance. The Agent shall have received certificates of insurance and, where
required by any applicable Lease, reinsurance from underwriters or insurers reasonably satisfactory
to the Agent together with evidence that the Collateral Agent has been named as loss payee in such
policies and that the Agent, Collateral Agent and the Lenders are named as additional insureds in
respect of the insurance referred to in each such Lease.



     (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 such Funding Date,
dated as of the applicable Funding Date, satisfactory in form and substance to 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 Collateral Agent) that such
agreement (or a memorandum thereof) has been registered, recorded or filed for recordation in
accordance with Applicable Law, together with evidence that all necessary publications with respect
thereto in the Canada Gazette have been made or arranged to be made promptly following such Funding
Date. 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) [RESERVED].



     (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 referred to in
Section 4.01(h)(i).



     (l) [RESERVED].



     (m) Funding Package. Receipt of the complete Funding Package for each such Railcar,
including a Bill of Sale and a Physical Inspection Report (if and to the extent required by
Section 6.10), based upon a physical inspection of a representative sampling of such
Railcars conducted not earlier than 90 days before the proposed Funding Date. The Independent
Appraisal (if required) included within such Funding Package shall be issued and dated within 30
days of the proposed Funding Date.



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     (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 such Funding
Date is an Eligible Railcar and (ii) each Lease which is to become a Portfolio Lease on such
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 applicable Funding Date with respect to any
applicable Railcar shall have been delivered to the Agent.



     (s) Other Documents and Action. The Borrower and the Manager 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 such Funding Date.



     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 Facility Party represents and warrants that:



     SECTION 5.01 Organization and Good Standing. The Borrower is a business trust duly
formed, validly existing and in good standing under the laws of the jurisdiction of its formation,
has all trust 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 trust,
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. Each Facility Party (other than the Borrower) 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.



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     SECTION 5.02 Power; Authorization; Enforceable Obligations. Each Facility 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 any Facility 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 5.02, 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 any Facility Party is a party will be, duly executed and delivered on behalf of
such Person. This Agreement constitutes, and each other Transaction Document to which any Facility
Party is a party when executed and delivered will constitute, a legal, valid and binding obligation
of each Facility 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 Facility
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 any Facility 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 any Facility Party is a party or by which any Facility 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 any Facility Party.



     SECTION 5.04 No Default. No Facility Party is 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, Manager Default, Manager Event of Default or Event of Default has occurred and is
continuing.



     SECTION 5.05 Financial Condition.



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     (a) Audited Financial Statements. The consolidated balance sheet of each of Trinity
and TILC and their respective consolidated Subsidiaries as of December 31, 2001 and the related
consolidated statements of income and cash flows for the fiscal year then ended, reported on by
Trinity and TILC’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 each of
Trinity and TILC and their respective consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year.



     (b) Interim Financial Statements. The unaudited consolidated balance sheet of each of
Trinity and TILC and their respective consolidated Subsidiaries as of March 31, 2002 and the
related unaudited consolidated statements of income and cash flows for the three months then ended,
copies of which have been delivered to each of the Lenders, fairly present, in conformity with GAAP
applied on a basis consistent with the financial statements referred to in subsection (a)
of this Section, the consolidated financial position of each of Trinity and TILC and their
respective consolidated Subsidiaries as of such date and their consolidated results of operations
and cash flows for such three-month period (subject to normal year-end audit adjustments). During
the period from March 31, 2002 to and including the Amendment Closing Date, there has been no sale,
transfer or other disposition by Trinity or TILC or any of their respective consolidated
Subsidiaries of any material part of the business or property of Trinity or TILC and their
respective consolidated Subsidiaries, in each case 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 Trinity or TILC and their
respective consolidated Subsidiaries, as applicable, 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 (b) and in
subsection (a) above disclose all liabilities, actual or contingent, of Trinity or TILC and
their respective consolidated Subsidiaries as of the date thereof required to be disclosed therein
in accordance with GAAP.



     (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 each of Trinity and TILC and their respective 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, the Debt incurred under this
Agreement and the Debt incurred under the Bank Credit Facility, (i) there were as of the Closing
Date (and after giving effect to any Loans made on such date) and the Amendment Closing Date, no
liabilities or obligations (excluding current obligations incurred in the ordinary course of
business) with respect to Trinity or 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) no
Facility Party knows of any basis for the assertion against Trinity or any Facility Party of any
such liability or



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obligation which, either individually or in the aggregate, are or could reasonably be expected
to have, a Material Adverse Effect.



     SECTION 5.06 No Material Change. Since December 31, 2001 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.



     SECTION 5.07 Title to Properties. On the Closing Date 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 are and will be free and clear of Liens other than Permitted Liens.



     SECTION 5.08 Litigation. There are no actions, suits, investigations or legal,
equitable, arbitration or administrative proceedings pending or overtly threatened (or any basis
therefor known to any Facility Party) against or affecting any Facility Party, either Partner or
the Partnership 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 5.09 Taxes. Each Facility Party, each Partner or the Partnership have 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 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. No Facility Party knows of any pending investigation of any Facility Party,
either Partner or the Partnership by any taxing authority or proposed tax assessments against any
Facility Party, either Partner or the Partnership.



     SECTION 5.10 Compliance with Law. Each Facility Party is in compliance with all
requirements of Applicable Law (including 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 any Facility Party nor 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. No Facility Party 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.



     SECTION 5.11 ERISA. (a) Each Pension Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other Applicable Laws. Each Pension




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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 Facility 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 Facility Parties, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Pension Plan that
could be reasonably be expected to have a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to any Pension Plan
that has resulted or could be reasonably expected to result in a Material Adverse Effect.



     (c) (i) 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 4201 or 4243 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. (a) 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% 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.



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     (c) No director, executive officer or principal holder of any Equity Interest of any Facility
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 each Funding Date
will be used solely to fund the Purchase Price of Eligible Railcars and related Eligible Leases
added to the Portfolio on such Funding Date and to pay fees and expenses incurred in connection
therewith.



     SECTION 5.15 Labor Matters. There are no strikes against any Facility Party, other
than any strikes that, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect. 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. 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 Facility Party has 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. No Facility
Party 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 any Facility Party 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 Facility 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 Facility Parties, no slogan or other advertising devise, product, process, method,
substance, part or other material now employed, or now contemplated to be employed, by any Facility
Party 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



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any Facility 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.



     SECTION 5.19 Disclosure. No statement, information, report, representation, or
warranty made by any Facility Party in any Transaction Document or furnished to the Agent or any
Lender by or on behalf of any Facility 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. Trinity owns good, valid and marketable title to all the
outstanding common stock of TILC. TILC owns good, valid and marketable title to all outstanding
membership interests of each of the Partners, the Partners, collectively, own good, valid and
marketable title to all outstanding partnership interests of the Partnership, and the Partnership
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), the original executed
counterpart bearing the Chattel Paper Legend and marked as “Counterpart No. 1” of the Portfolio
Leases (or such other original executed counterpart as is accepted by the Agent) and any other
Lease Document to which the Borrower is a party and (ii) to the Lenders true and complete copies of
the Lease Documents and any amendments or supplements thereto to which the



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Borrower is a party, and, except for amendments so disclosed to the Agent and the Lenders,
such documents have not been 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 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.




     (i) The Borrower is operated as a separate legal entity from Trinity, the Manager and
their Affiliates and will observe all corporate formalities necessary to remain a legal
entity separate and distinct from, and independent of, Trinity, the Manager and their
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 Trinity, the Manager or their Affiliates (other than the
Borrower).




     (v) The Borrower keeps complete and accurate entity records, books, accounts and
minutes separate from those of Trinity, the Manager and any of their 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, Trinity, the Manager 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
Trinity, the Manager or any of their 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, Trinity, the Manager or any of their 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.



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     (ix) The Borrower has kept its assets and liabilities as reflected in its books and
records separate from those of Trinity, the Manager and their 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 Trinity, the Manager and their Affiliates.




     (xi) The Borrower has not held itself out to the public as a division of Trinity or the
Manager, or Trinity or the Manager as a division of the Borrower.




     (xii) The Borrower has not induced third parties to rely on the creditworthiness of
Trinity (other than in standard parent guarantees of lessor obligations) or the Manager 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 Trinity, the Manager and their Affiliates.




     (xiv) The Borrower has and will keep its funds separate and distinct from any funds of
Trinity, the Manager and their 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 Trinity, the Manager and their
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 Winston & Strawn on the 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 Manager after due inquiry is in existence under any Portfolio Lease and each
Portfolio Lease is in full force and effect and (iii) 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 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.



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ARTICLE VI




AFFIRMATIVE COVENANTS




     Each Facility Party 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:



     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. As soon as available, and in any event within 150
days after the end of each fiscal year of each of Trinity and TILC, a consolidated balance sheet
and income statement of each of Trinity and TILC and their respective 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, 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 each of Trinity and
TILC and their respective 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 each of
Trinity and TILC, a consolidated balance sheet of each of Trinity and TILC and their respective
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 the then
elapsed portion of such fiscal year, 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 Trinity or TILC, as applicable, 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 each of Trinity and
TILC 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, Manager Default, Manager Event of Default or
Event of Default exists, or if any Default, Manager Default, Manager Event of Default or Event of
Default does exist, specifying the nature and extent thereof and what action each Facility Party
proposes to take with respect thereto.



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     (d) Borrowing Base Certificates. Not later than the second Business Day prior to each
Settlement Date, a Borrowing Base Certificate as of the end of the immediately preceding calendar
month, substantially in the form of Exhibit A-6 hereto and certified by a Responsible
Officer of the Borrower and the Manager to be true and correct as of the date thereof.



     (e) Notices Regarding Collateral. Promptly upon receipt from any Manufacturer, the
Manager, 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 make,
manufacturer, model, car number 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 M hereto (if expenses are to be reimbursed to the Manager 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. The Agent shall provide the Lenders with a copy of the Monthly Report, as
revised pursuant to the preceding sentence.



     (g) Annual Good Standing Certificates. Within the period for the delivery of the
annual financial statements provided for in Section 6.01(a) above, a certificate of good
standing, existence or its equivalent with respect to each Facility Party certified as of a recent
date by the appropriate Governmental Authority of each Facility Party’s state of organization.



     (h) Auditor’s Reports. Promptly upon receipt thereof, a copy of any other report or
“management letter” submitted by independent accountants to Trinity or any Facility Party in
connection with any annual, interim or special audit of the books of Trinity or such Facility
Party.



     (i) Notices. Prompt notice of: (i) the occurrence of any Default, Manager Default,
Manager Event of Default 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 Trinity or any Facility Party; (B) any dispute, litigation, investigation
or proceeding between Trinity or any Facility Party and any Governmental Authority; (C) any
litigation, investigation or proceeding affecting Trinity or any Facility Party in which the amount
involved exceeds $0, in the case of the Borrower, or $10,000,000, in the case of Trinity or any
other Facility Party, 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



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any ERISA Event; and (E) any material change in accounting policies or financial reporting
practice by Trinity or TILC. Each notice pursuant to this Section 6.01(i) or
6.01(ii) shall (i) be accompanied by a statement of a Responsible Officer of the Borrower
(or the Manager 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.



     (j) Domestication in Other Jurisdiction. 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.



     (k) Other Information. With reasonable promptness upon request therefor, such other
information regarding the business, properties or financial condition of Trinity or any Facility
Party as the Agent or any Lender may reasonably request.



     SECTION 6.02 Preservation of Existence and Franchises; Authorizations, Approvals and
Recordations. Each Facility Party 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 and expense, as provided in
Section 6.10(a). Upon direction of the Agent, the Borrower shall stamp or otherwise mark
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 Manager 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 liable
or contingently liable in respect of any Pension Plan or Multiemployer Plan (as defined under
Section 3(37)(A) of ERISA).



     SECTION 6.05 Payment of Taxes and Other Debt. Each Facility Party will pay and
discharge (i) all material taxes, assessments and other governmental charges or levies imposed



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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 no Facility Party 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. (a) 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 6.06 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 Manager 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, and (ii) with respect
to any Portfolio Railcar not subject to a Lease, in addition to its covenants with respect to the
Collateral described herein, the Borrower shall comply with the provisions of the Management
Documents regarding insurance for the Railcar. 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 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 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 non payment 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 Modifications and Improvements 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).



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     Upon the request of the Collateral 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 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



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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 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




     (ii) with respect to any Portfolio Railcar not subject to a Lease, the Borrower will
cause the Railcar to comply with the maintenance requirements set forth in the Management
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 Manager’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 Manager 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.



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     SECTION 6.08 Replacement of Parts; Modifications and Improvements.



     (a) Replacement of Parts. The Borrower, at its sole cost and expense (whether from
the Maintenance Reserve Account, by reimbursement of expenses incurred by the Manager, 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 Manager’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
Modification and Improvement Account, by reimbursement of expenses incurred by the Manager,
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: (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 6.09 Use of Proceeds. The Borrower will use the proceeds of the Loans solely
for the purposes set forth in Section 5.14.



     SECTION 6.10 Audits/Inspections/Appraisals.



     (a) Audits and Inspections. Upon reasonable notice and during normal business hours,
each Facility 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



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representatives of each Facility Party; provided that (i) so long as no Event of Default or
Manager Event of 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 Manager Event of 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,
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 (i) 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(b)
below, in the case of Railcars the assets included in the Collateral and (ii) subject to
restrictions and procedures on inspection of the Portfolio Railcars in any applicable Lease,
conduct a physical inspection of any Portfolio Railcar or otherwise obtain a Physical Inspection
Report with respect thereto at any time after the occurrence and during the continuance of an Event
of Default, and the Borrower will pay the reasonable fees and expenses of such professionals in
accordance with Section 11.04. In addition to the foregoing, the Borrower agrees that
(i) not later than the 60th day after the Closing Date, the Borrower will deliver to the Agent a
Physical Inspection Report with respect to a representative sampling of not less than five percent
and up to ten percent of the Railcars intended to become Portfolio Railcars on the Closing Date and
(ii) thereafter, (A) a copy of any Physical Inspection Report obtained by the Borrower (or by the
Manager on its behalf) with respect to any Portfolio Railcar or proposed Portfolio Railcar and
(B) in the event the Borrower acquires a group of Railcars from a seller other than the relevant
Manufacturer thereof, a Physical Inspection Report with respect to a representative sampling of 10%
or such higher percentage of such group of Railcars as may be agreed by the Borrower and the Agent.



     (b) Appraisals. (i) At the request of the Agent, not more frequently than twice in
any calendar year, and (ii) at any time after the occurrence and during the continuation of any
Event of Default, the Borrower shall at its expense provide an Independent Appraisal with respect
to one or more Railcars designated by the Agent (which may include all of the Portfolio Railcars).
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(b)) at its
own expense. Each Independent Appraisal delivered pursuant to this Section 6.10(b) 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. Without
limitation of the foregoing, subsequent Independent Appraisals of such Railcar shall be based on
the most recent Physical Inspection Report (if any) of 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).



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     SECTION 6.12 Follow-On Leases. Prior to entering into a Portfolio Lease which was
not in place as of the applicable Funding Date (and described in the applicable Notice of
Borrowing) (a “Follow-On Lease”), the Borrower (or the Manager 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, and such other information reasonably requested
by the Agent. The Borrower will not enter into such Follow-On Lease until (i) such form of
Follow-On Lease is approved by the Agent, (ii) the proposed Lessee under the proposed Follow-On
Lease is approved by the Agent and (iii) the conditions precedent described in Section 4.03
hereof have been satisfied with respect to such Follow-On Lease, as 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 Depositary Agreement in the name of the Borrower. The
Borrower shall cause the Depositary to create a Collection Account, a Liquidity Reserve Account, a
Maintenance Reserve Account and a Modifications and Improvements Account, in each case in
accordance with the terms of the Depositary 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 Manager 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 Maintenance Reserve
Account, the Modifications and Improvements 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 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 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.



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     (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 Manager hereby agrees to allocate all Cash Flow from the Customer Payments Account to
the Collections Account on a daily basis, and shall provide written notice thereof (which notice
may be made by facsimile or electronic mail) to the Agent on a daily basis, in each case in
accordance with the Customer Collections Account Administration Agreement.



     (f) Within 3 Business Days after receiving direction from the Required Lenders, each of the
Agent and the Borrower shall take all actions necessary to sever itself (and each shall sever
itself within such period) as a “Beneficiary” under the Customer Collections Account Administration
Agreement (the “Customer Collections Account Administration Agreement Severance”) in
accordance with Section 11(c) thereof.



     SECTION 6.14 Manager. (a) The Borrower acknowledges and agrees that, subject to the
provisions of the next sentence, while any Obligation remains outstanding, TILC shall remain the
Manager. The Borrower, the Manager and the Agent further agree that, upon the occurrence and
continuance of an Event of Default, a Manager Default or a Manager Event of Default and as
otherwise provided in the Management Documents, the Agent (acting at the direction of the Required
Lenders), without the consent of any Facility Party, shall have the right to remove the Manager,
terminate any Management Document(s), appoint a new Manager that is reasonably satisfactory to both
the Agent and the Required Lenders, in accordance with Section 8.04 of the Management Agreement,
and enter into new Management Document(s) with such new Manager; provided that, as a condition
precedent to the Agent removing and replacing the Manager, the Agent shall request from each Rating
Agency, a determination whether, as a result of such removal or replacement, it would cause the
rating of the Notes to be reduced or withdrawn.



     (b) The Borrower, the Manager and the Agent agree that upon the occurrence and continuance of
an Event of Default, a Manager Default, a Manager 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 actions necessary to
appoint a successor to the Manager 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, each Facility Party shall, in connection with taking any
action or exercising any rights or remedies under any Lease Document or Management Document, comply
with all applicable written instruction from the Agent (it being understood that such Facility
Party will not be considered in breach of this Section 6.15 or any other provision of any
Transaction Document by virtue of complying or failing to comply with such written instructions).



     SECTION 6.16 [RESERVED].



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     SECTION 6.17 [RESERVED].



     SECTION 6.18 [RESERVED].



     SECTION 6.19 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.



ARTICLE VII




NEGATIVE COVENANTS




     Each Facility Party 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 Closing Date with the express written consent of the Agent to manage
interest rate risks and not for speculative purposes.



     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 Closing Date and activities directly related
thereto.



     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 equal to the amount required to be paid into the Collection Account pursuant to
Section 2.07(b)(v) shall have or upon receipt shall be delivered to the Depositary in
accordance with Section 6.06, (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 Collateral Deficiency shall result or
shall be increased as a result of such Asset Disposition and (C) the Net Cash Proceeds of such



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Asset Disposition equal to the amount required to be paid into the Collection Account pursuant
to Section 2.07(b)(v) shall have or simultaneously therewith be delivered to the Depositary
for deposit to the Collection Account 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 Collateral 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)
shall have or simultaneously therewith be delivered to the Depositary for deposit to the Collection
Account. Upon consummation of an Asset Disposition permitted under 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.



     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;




     (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 7.07 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 Manager Default, 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 7.08 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 Manager’s Fees as provided in Section
2.07(c),



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(B) reimbursement of Reimbursement Amounts and Manager Advances pursuant to the Management
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
arms’-length transaction with an independent, unrelated third party.



     SECTION 7.09 Fiscal Year; Organization and Other Documents. The Borrower will not
(i) change its fiscal year, (ii) 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 Management 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 Manager to) modify, make adjustments with respect
to, extend or renew any 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 which is in any manner adverse to the interests of the Agent, the Collateral
Agent and the Lenders to any Management Document or the Asset Contribution and Purchase Agreement,
in each case as in effect on the Closing Date. The Borrower will promptly provide the Lenders with
copies of all amendments to the foregoing documents and instruments as in effect as of the 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. No Facility Party will 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 Debt Service Coverage Ratio. The Debt Service Coverage Ratio as of any
Settlement Date will not be less than 1.10 to 1.00.



     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, no Facility Party



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will 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, no Facility Party will 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 cause a Lease which otherwise would
cease or fail to be an Eligible Lease to be an Eligible Lease.



     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.



     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.



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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 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 a 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. Any default shall occur in the payment when due (whether by scheduled
maturity, acceleration or otherwise) of any principal of or any interest on the Loans, or any
default 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 other Loan Documents or in connection herewith or therewith.



     (b) Out of Formula. A Collateral Deficiency shall exist on any two 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), unless (i) such Collateral Deficiency exists solely as a result of a designation by the
Agent of any Designated Ineligible Type of Railcar or Lease or as a result of an exclusion of one
or more Eligible Railcars pursuant to clause (xvi) of the definition of “Excluded Asset Amount”, in
which case such 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) or (ii) such Collateral
Deficiency exists solely as a result of a reduction in the Borrowing Base caused solely by a
reduction of the percentage which then constituted the Advance Rate as contemplated in
Section 2.13, in which case such Collateral Deficiency shall exist on any six consecutive
Settlement Dates after the Agent delivers notice of the percentage reduction to the Borrower (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 Trinity or any Facility Party herein, in any of the other Loan Documents or in any
Management 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



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which rescission of transfer is a remedy available under Section 4.11 of the Asset
Purchase and Contribution Agreement, no Event of Default shall exist as a result of such event
unless and until there has been a failure by TILC (or the Performance Guarantor) to make the
rescission payment described in said Section 4.11.



     (d) Covenants. Trinity or any Facility Party 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 such Facility Party’s existence), 6.06, 6.09, 6.12,
6.13, 6.14, 6.15 or Article VII of this Agreement or in the
Performance Guaranty;




     (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 Trinity or a 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), or (d)(iii) of this Section 9.01)
contained in this Agreement 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 Trinity 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) Trinity or 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



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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
Trinity or 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 Trinity or 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 Trinity or 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 $100,000
(in the case of the Borrower) or $10,000,000 (in the case of Trinity or any other Facility Party)
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 Trinity, the Manager or the
Borrower to enforce any such judgment or Borrower shall enter into any agreement to settle or
compromise any pending or threatened litigation, as to any single or related series of claims,
involving payment of $100,000 or more by the Borrower, or any non-monetary judgment, order or
decree is entered against Trinity or 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 Trinity or 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 Borrower Change of Control.



     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, or the Agent upon the request and direction of the Required Lenders, shall by



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written notice to the Borrower take any of the following actions without prejudice to the
rights of the Collateral Agent, the Agent or any Lender to enforce its claims against Trinity or
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 Agent to
enforce all rights and remedies existing under the Collateral Documents and all rights of set-off.



     (d) Lessor Rights Notice. Deliver the Notices of Lease Assignment (as well as any
Lessor Rights Notice) to the applicable Lessees with respect to any or 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 rescission payment is received in the Collection Account, then the
Collateral Agent agrees to release to the Borrower, free and clear of the lien of the Security



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Agreement, the relevant Lease(s) and Railcar(s) the subject of such rescission payment, to
enable the Borrower to comply with its obligation to return such assets to TILC 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, 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 Wilmington Trust Company
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



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Collateral Agent and the Depositary) for the benefit of 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 11.01 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 10.02 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 10.03 Exculpatory Provisions. Neither the Agent, the Collateral Agent 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 or the Collateral Agent 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.



     SECTION 10.04 Reliance on Communications. Each of the Agent and the Collateral Agent
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 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




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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 and the Collateral Agent 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.




     SECTION 10.05 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, Manager Event of Default or Event of Default, except 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 has received notice from a Lender, the Manager or
the Borrower referring to this Agreement or the Management Agreement, as applicable, describing
such Default, the Manager 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. Each of the Agent and the Collateral Agent shall take such action with respect to such
Default, Manager Event of Default or Event of Default as shall be reasonably directed 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, Manager Event of Default or Event of Default or
it shall deem advisable or in the best interest of the Lenders.



     SECTION 10.06 Credit Decision; Disclosure of Information by the Agent or 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 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 Collateral Agent to any Lender as to any matter,
including whether the Agent or 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 and 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 the Borrower and the



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other Facility Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Agent or 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 Collateral Agent, as the case may be.




     SECTION 10.07 Indemnification. Whether or not the transactions contemplated hereby
are consummated, the Lenders agree, severally but not jointly, 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 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 out-of-pocket 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 10.08 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 the Borrower or any
other Facility Party as though the Agent or Collateral Agent were not the Agent or 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



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Collateral Agent shall not 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 Collateral Agent, and the terms “Lender” and “Lenders” shall
include the Agent or Collateral Agent, as the case may be, in their respective individual
capacities.




     SECTION 10.09 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 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 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



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specified for notices as set forth on Schedule 11.01 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 means of a telephone call to
the intended recipient at the number specified on Schedule 11.01, 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 and Lenders. The Agent, the Collateral Agent
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 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



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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. Neither this Agreement nor any other
Loan Document nor any of the terms hereof or thereof may be amended, changed, waived, discharged or
terminated except, (a) in the case of this Agreement, upon the Agent requesting from each Rating
Agency (if any) a determination whether, as a result of any such amendment (except for changes to
the definition of “Committed Amount,” “Scheduled Payment Date” or the dates on which payments are
due pursuant to Section 2.06, or other changes or agreements in respect of the subject
matter herein which are, in the judgment of the Agent, ministerial or address mechanical matters
not raising any substantive credit-related concerns, including in respect of such repayment and
release matters associated with Asset Dispositions under Section 7.05), it would cause the
rating of the Notes to be reduced or withdrawn, and (b) 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, each other Facility Party which is 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
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 Legal Final Maturity Date or extend or waive any Scheduled
Payment 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 thereof in effect (it
being understood and agreed that a waiver of any Default, Manager Default, Manager
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



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Borrower in compliance with Section 7.05, or released in compliance
with Section 10.01(b));




     (F) release any Facility Party from its respective obligations under the Loan
Documents and/or the Management Documents;




     (G) amend, modify or waive any provision of this Section 11.03 or
reduce any percentage specified in, or otherwise modify, the definition of Required
Lenders;




     (H) amend or modify or, if applicable, waive the effects of the definition of
“Advance Rate”, “Excluded Assets Amount” and/or “Borrowing Base”; or




     (I) consent to the assignment or transfer by the Borrower or the Manager of any
of its rights and obligations under (or in respect of) the Loan Documents and the
Management Agreement, except as permitted thereby.




     (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 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,



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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 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 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 any Funding Date or other transaction contemplated hereby closes and (ii)
all taxes which the 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 Manager 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 Management
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.



     Notwithstanding the foregoing, in the event that the Borrower does not pay any amounts
described in this Section 11.04 when due, TILC shall be liable for and shall pay such
amounts on demand of the party entitled thereto.



     SECTION 11.05 Indemnification. Whether or not the transactions contemplated hereby
are consummated, the Facility Parties, jointly and severally, agree to indemnify, save and hold
harmless the Agent, the Collateral Agent, 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



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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 or any Lender)
relating directly or indirectly to a claim, demand, action or cause of action that such Person
asserts or may assert against Trinity or any Facility Party, any Affiliate of Trinity or 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, any predecessor Loan Documents, the Commitments, the use of or contemplated use of
the proceeds of any Loan, or the relationship of Trinity, any Facility Party, the Agent, the
Collateral Agent and the Lenders under this Agreement or any other Loan Document; (iii) 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 (i) or (ii)
above; (iv) 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 Trinity or any Facility Party of any Transaction Document or Lease Document or a Lessee
of any Lease Document, (v) 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 Trinity or 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 Indemnities), 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




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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 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 Portfolio Railcar, to the extent not
attributable to the failure of a Facility Party to perform an obligation with respect to such
Portfolio Railcar under a Transaction Document. 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 Trinity, 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, any Lender, any other Creditor, 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 Facility Parties hereunder and under the other Loan Documents, the
agreements and obligations of the Facility 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 Facility 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 any Facility Party
in fact indemnifies any Indemnitee pursuant to the provisions of this Section 11.05 (other
than in respect of Taxes), such Facility 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 Facility Party from any of its obligations hereunder except if and to the extent that such
failure results in an increase in any Facility Party’s indemnification obligations hereunder. The
Facility 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



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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, no Facility
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 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 Trinity or any Facility Party and allowing
Trinity and/or such Facility Party to assert such defenses will be prejudicial to the interests of
such Indemnitee; provided that the limitation on the Facility 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 the Borrower and/or any other 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. 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);



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     (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.



     (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. If the
assignee is not a United States person under Section 7701(a)(30) of the Code, it 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



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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 Agent pursuant
to this Section. 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, any 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.




     (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).



     (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



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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 Loans 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 Lender, (a “Granting Lender”) may grant to a conduit lender sponsored by such Granting
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 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. Credit Suisse, New York Branch hereby designates Alpine Securitization Corp. as a
“Conduit Lender” for all purposes of this Agreement and the other Loan Documents and grants to each
such Conduit Lender the option to fund all or any portion of the Loans contemplated to be made
hereunder by Credit Suisse, New York Branch. Dresdner Bank AG, New York Branch hereby designates
Beethoven Funding Corp. as a “Conduit Lender” for all purposes of this Agreement and the other Loan
Documents and grants to such Conduit Lender the option to fund all or any portion of the Loans
contemplated to be made hereunder by Dresdner Bank AG, New York Branch. Coöperatieve Centrale
Raiffeisen-Boerenleenbank B.A., “Rabobank International”, New York Branch hereby designates Nieuw
Amsterdam Receivables Corporation as a “Conduit Lender” for all purposes of this Agreement and the
other Loan Documents and grants to such Conduit Lender the option to fund all or any portion of the
Loans contemplated to be made hereunder by Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
“Rabobank International”, New York Branch.



     SECTION 11.07 Confidentiality. Each of the Agent, 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 (it being understood that the



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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 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, 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 or
(B) becomes available to the Agent, the Collateral Agent 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, “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 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 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 11.08 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, 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



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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 11.09 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 (the “Maximum Rate”). 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 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 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 in any number of
counterparts, each of which when so executed and delivered shall be an original, but all of which



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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.




     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 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. 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 any Borrowing, and shall continue in full force and effect as long as any Loan or
any other Obligation shall remain unpaid or unsatisfied.



     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



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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 Management 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. (a) 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
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 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 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. The provisions of this Section 11.18
shall survive the termination of this Agreement.



     (c) Notwithstanding anything contained in this Agreement to the contrary, no Conduit Lender
shall have any obligation to pay any amount required to be paid by it hereunder or thereunder to
any party hereto, in excess of any amount available to such Conduit Lender after paying or making
provision for the payment of its commercial paper notes. All payment obligations of each Conduit
Lender hereunder are contingent upon the availability of funds in excess of the amounts necessary
to pay commercial paper notes; and each of the parties hereto agree that they shall not have a
claim under Section 101(5) of the United States Bankruptcy Code if and to the extent that any such
payment obligation exceeds the amount available to such Conduit Lender to pay such amounts after
paying or making provision for the payment of its commercial paper notes.



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     SECTION 11.19 Governing Law; Submission to Jurisdiction. (a) 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 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 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 (as amended on the Amendment Closing
Date) 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 and each Lender and their respective successors and assigns.



     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,



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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.




[Signature Pages Follow]




Amended and Restated

Warehouse Loan Agreement




115









 





     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/ Thomas C. Jardine
 	 
	 	 	Name:  	Thomas C. Jardine 	 
	 	 	Title:  	Vice President 	 
	 
	 	TRINITY RAIL LEASING TRUST II

 	 
	 	By:  	/s/ Eric Marchetto
 	 
	 	 	Name:  	Eric Marchetto 	 
	 	 	Title:  	Vice President 	 
	 



Amended and Restated

Warehouse Loan Agreement





 









 





	 	 	 	 	 
	 	CREDIT SUISSE, NEW YORK BRANCH 

(formerly known as Credit Suisse First Boston, New York Branch), as Agent and as a Committed Lender

 	 
	 	 	 
	 	By:  	                      /s/ Anthony Giordano
 	 
	 	 	Name:  	Anthony Giordano 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                         /s/ Alex Smith
 	 
	 	 	Name:  	Alex Smith 	 
	 	 	Title:  	Vice President 	 
	 
	 	ALPINE SECURITIZATION CORP,

   as a Conduit Lender

 	 



	 	 	 
	 

	 	By Credit Suisse, New York Branch, as

attorney-in-fact






	 	 	 	 	 
	 	 	 
	 	By:  	                        /s/ Mark Golombeck
 	 
	 	 	Name:  	Mark Golombeck 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                         /s/ Joseph Soave
 	 
	 	 	Name:  	Joseph Soave 	 
	 	 	Title:  	Director 	 
	 



Amended and Restated

Warehouse Loan Agreement





 









 





	 	 	 	 	 
	 	DRESDNER BANK AG, NEW YORK BRANCH,

   as a Committed Lender

 	 
	 	By:  	/s/ David O. Taylor
 	 
	 	 	Name:  	David O. Taylor 	 
	 	 	Title:  	Vice President 	 
	 	 	 
	 	By:  	                      /s/ Michael W. Ravelo
 	 
	 	 	Name:  	Michael W. Ravelo 	 
	 	 	Title:  	Vice President 	 
	 
	 	BEETHOVEN FUNDING CORPORATION,

   as a Conduit Lender

 	 
	 	By:  	/s/ Damian A. Perez
 	 
	 	 	Name:  	Damian A. Perez 	 
	 	 	Title:  	Vice President 	 
	 



Amended and Restated

Warehouse Loan Agreement





 









 





	 	 	 	 	 
	 	COÖPERATIEVE CENTRALE
RAIFFEISEN- BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK BRANCH,

   as a Committed Lender

 	 
	 	By:  	/s/ Sarah Ye Tian
 	 
	 	 	Name:  	Sarah Ye Tian 	 
	 	 	Title:  	Vice President 	 
	 	 	 
	 	By:  	                       /s/ Christopher Lew
 	 
	 	 	Name:  	Christopher Lew 	 
	 	 	Title:  	Vice President 	 
	 
	 	NIEUW AMSTERDAM RECEIVABLES CORPORATION,

   as a Conduit Lender

 	 
	 	By:  	/s/ David V. DeAngelis
 	 
	 	 	Name:  	David V. DeAngelis 	 
	 	 	Title:  	Vice President 	 
	 



Amended and Restated

Warehouse Loan Agreement





 









 





	 	 	 	 	 
	 	GRESHAM RECEIVABLES (No. 3) LIMITED,

   as a Committed Lender

 	 
	 	By:  	/s/ S.M. Hollywood
 	 
	 	 	Name:  	S.M. Hollywood 	 
	 	 	Title:  	Director 	 
	 



Amended and Restated

Warehouse Loan Agreement





 









 





	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY,

   as Collateral Agent and Depositary

 	 
	 	By:  	/s/ Jose L. Paredes
 	 
	 	 	Name:  	Jose L. Paredes 	 
	 	 	Title:  	Assistant Vice President 	 
	 



Amended and Restated

Warehouse Loan Agreement