exv10w20






Exhibit 10.20




 

 







INDENTURE


dated as of November 5, 2009


by and between


TRINITY RAIL LEASING VII LLC,

a Delaware limited liability company,

as the Issuer of the Equipment Notes,


and


WILMINGTON TRUST COMPANY,

as Indenture Trustee for the Equipment Notes



 

 








 









 






Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page 	 
	GRANTING CLAUSES	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE I 

	 
	 	 	 	 	 	 
	DEFINITIONS 

	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	7	 
	Section 1.02
	 	Rules of Construction	 	 	8	 
	Section 1.03
	 	Compliance Certificates and Opinions	 	 	9	 
	Section 1.04
	 	Acts of Noteholders	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE II 

	 
	 	 	 	 	 	 
	THE EQUIPMENT NOTES 

	 
	 	 	 	 	 	 
	Section 2.01
	 	Authorization, Issuance and Authentication of the Equipment	 	 	 	 
	 
	 	Notes; Amount of Outstanding Principal Balance; Terms; Form;	 	 	 	 
	 
	 	Execution and Delivery	 	 	11	 
	Section 2.02
	 	Restrictive Legends	 	 	13	 
	Section 2.03
	 	Note Registrar and Paying Agent	 	 	14	 
	Section 2.04
	 	Paying Agent to Hold Money in Trust	 	 	16	 
	Section 2.05
	 	Method of Payment	 	 	16	 
	Section 2.06
	 	Minimum Denomination	 	 	17	 
	Section 2.07
	 	Exchange Option	 	 	17	 
	Section 2.08
	 	Mutilated, Destroyed, Lost or Stolen Equipment Notes	 	 	19	 
	Section 2.09
	 	Payments of Transfer Taxes	 	 	19	 
	Section 2.10
	 	Book-Entry Registration	 	 	19	 
	Section 2.11
	 	Special Transfer Provisions	 	 	21	 
	Section 2.12
	 	Temporary Definitive Notes	 	 	24	 
	Section 2.13
	 	Statements to Noteholders	 	 	24	 
	Section 2.14
	 	CUSIP, CINS AND ISIN Numbers	 	 	26	 
	Section 2.15
	 	Debt Treatment of Equipment Notes	 	 	26	 






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	 	 	 	 	Page 	 
	ARTICLE III 

	 
	 	 	 	 	 	 
	INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS 

	 
	 	 	 	 	 	 
	Section 3.01
	 	Establishment of Indenture Accounts; Investments	 	 	26	 
	Section 3.02
	 	Collections Account	 	 	29	 
	Section 3.03
	 	Withdrawal upon an Event of Default	 	 	30	 
	Section 3.04
	 	Liquidity Reserve Account	 	 	30	 
	Section 3.05
	 	Optional Reinvestment Account	 	 	31	 
	Section 3.06
	 	Expense Account	 	 	32	 
	Section 3.07
	 	Equipment Note Account	 	 	32	 
	Section 3.08
	 	Redemption/Defeasance Account	 	 	33	 
	Section 3.09
	 	Mandatory Replacement Account	 	 	33	 
	Section 3.10
	 	Calculations	 	 	34	 
	Section 3.11
	 	Payment Date Distributions from the Collections Account	 	 	36	 
	Section 3.12
	 	Voluntary Redemptions	 	 	38	 
	Section 3.13
	 	Procedure for Redemptions	 	 	39	 
	Section 3.14
	 	Adjustments in Targeted Principal Balances	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE IV 

	 
	 	 	 	 	 	 
	DEFAULT AND REMEDIES 

	 
	 	 	 	 	 	 
	Section 4.01
	 	Events of Default	 	 	40	 
	Section 4.02
	 	Remedies Upon Event of Default	 	 	43	 
	Section 4.03
	 	Limitation on Suits	 	 	46	 
	Section 4.04
	 	Waiver of Existing Defaults	 	 	46	 
	Section 4.05
	 	Restoration of Rights and Remedies	 	 	47	 
	Section 4.06
	 	Remedies Cumulative	 	 	47	 
	Section 4.07
	 	Authority of Courts Not Required	 	 	47	 
	Section 4.08
	 	Rights of Noteholders to Receive Payment	 	 	47	 
	Section 4.09
	 	Indenture Trustee May File Proofs of Claim	 	 	48	 
	Section 4.10
	 	Undertaking for Costs	 	 	48	 
	 
	 	 	 	 	 	 
	ARTICLE V 

	 
	 	 	 	 	 	 
	REPRESENTATIONS, WARRANTIES AND COVENANTS 

	 
	 	 	 	 	 	 
	Section 5.01
	 	Representations and Warranties	 	 	48	 
	Section 5.02
	 	General Covenants	 	 	54	 






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	 	 	 	 	Page 	 
	Section 5.03
	 	Portfolio Covenants	 	 	60	 
	Section 5.04
	 	Operating Covenants	 	 	64	 
	 
	 	 	 	 	 	 
	ARTICLE VI 

	 
	 	 	 	 	 	 
	THE INDENTURE TRUSTEE 

	 
	 	 	 	 	 	 
	Section 6.01
	 	Acceptance of Trusts and Duties	 	 	72	 
	Section 6.02
	 	Absence of Duties	 	 	73	 
	Section 6.03
	 	Representations or Warranties	 	 	73	 
	Section 6.04
	 	Reliance; Agents; Advice of Counsel	 	 	73	 
	Section 6.05
	 	Not Acting in Individual Capacity	 	 	75	 
	Section 6.06
	 	No Compensation from Noteholders	 	 	75	 
	Section 6.07
	 	Notice of Defaults	 	 	75	 
	Section 6.08
	 	Indenture Trustee May Hold Securities	 	 	76	 
	Section 6.09
	 	Corporate Trustee Required; Eligibility	 	 	76	 
	Section 6.10
	 	Reports by the Issuer	 	 	76	 
	Section 6.11
	 	Certain Rights of the Requisite Majority	 	 	76	 
	 
	 	 	 	 	 	 
	ARTICLE VII 

	 
	 	 	 	 	 	 
	SUCCESSOR TRUSTEES 

	 
	 	 	 	 	 	 
	Section 7.01
	 	Resignation and Removal of Indenture Trustee	 	 	77	 
	Section 7.02
	 	Appointment of Successor	 	 	77	 
	 
	 	 	 	 	 	 
	ARTICLE VIII 

	 
	 	 	 	 	 	 
	INDEMNITY 

	 
	 	 	 	 	 	 
	Section 8.01
	 	Indemnity	 	 	78	 
	Section 8.02
	 	Noteholders’ Indemnity	 	 	79	 
	Section 8.03
	 	Survival	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE IX 

	 
	 	 	 	 	 	 
	SUPPLEMENTAL INDENTURES 

	 
	 	 	 	 	 	 
	Section 9.01
	 	Supplemental Indentures Without the Consent of the Noteholders	 	 	79	 
	Section 9.02
	 	Supplemental Indentures with the Consent of Noteholders	 	 	80	 






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	 	 	 	 	Page 	 
	 
	 	 	 	 	 	 
	ARTICLE X 

	 
	 	 	 	 	 	 
	MODIFICATION AND WAIVER 

	 
	 	 	 	 	 	 
	Section 10.01
	 	Modification and Waiver with Consent of Holders	 	 	81	 
	Section 10.02
	 	Modification Without Consent of Holders	 	 	82	 
	Section 10.03
	 	Subordination and Priority of Payments	 	 	82	 
	Section 10.04
	 	Execution of Amendments by Indenture Trustee	 	 	82	 
	 
	 	 	 	 	 	 
	ARTICLE XI 

	 
	 	 	 	 	 	 
	SUBORDINATION 

	 
	 	 	 	 	 	 
	Section 11.01
	 	Subordination	 	 	83	 
	 
	 	 	 	 	 	 
	ARTICLE XII 

	 
	 	 	 	 	 	 
	DISCHARGE OF INDENTURE; DEFEASANCE 

	 
	 	 	 	 	 	 
	Section 12.01
	 	Discharge of Liability on the Equipment Notes; Defeasance	 	 	84	 
	Section 12.02
	 	Conditions to Defeasance	 	 	85	 
	Section 12.03
	 	Application of Trust Money	 	 	86	 
	Section 12.04
	 	Repayment to the Issuer	 	 	86	 
	Section 12.05
	 	Indemnity for Government Obligations and Corporate Obligations	 	 	86	 
	Section 12.06
	 	Reinstatement	 	 	86	 
	 
	 	 	 	 	 	 
	ARTICLE XIII 

	 
	 	 	 	 	 	 
	MISCELLANEOUS 

	 
	 	 	 	 	 	 
	Section 13.01
	 	Right of Indenture Trustee to Perform	 	 	87	 
	Section 13.02
	 	Waiver	 	 	87	 
	Section 13.03
	 	Severability	 	 	87	 
	Section 13.04
	 	Notices	 	 	88	 
	Section 13.05
	 	Assignments	 	 	89	 
	Section 13.06
	 	Currency Conversion	 	 	89	 
	Section 13.07
	 	Application to Court	 	 	90	 
	Section 13.08
	 	Governing Law	 	 	90	 
	Section 13.09
	 	Jurisdiction	 	 	91	 
	Section 13.10
	 	Counterparts	 	 	91	 
	Section 13.11
	 	Table of Contents, Headings, Etc.	 	 	91	 






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	Schedule	 	Description
	Schedule 1
	 	Account Information

	Schedule 2
	 	Description of Initial Railcars

	Schedule 3
	 	Description of Initial Leases

	Schedule 4
	 	Amortization Schedule







	 	 	 
	Exhibit	 	Description
	Exhibit A
	 	Form of Equipment Note

	 	 	 

	Exhibit B-1
	 	Form of Certificate to be Given by Noteholders

	Exhibit B-2
	 	Form of Certificate to be Given by Euroclear or Clearstream

	Exhibit B-3
	 	Form of Certificate to Depository Regarding Interest

	Exhibit B-4
	 	Form of Depositary Certificate Regarding Interest

	Exhibit B-5
	 	Form of Transfer Certificate for Exchange or Transfer from
144A Book-Entry Note to Regulation S Book-Entry Note

	Exhibit B-6
	 	Form of Purchaser Exchange Instructions

	Exhibit B-7
	 	Form of Certificate to be Given by Transferee of Beneficial
Interest in a Regulation S Temporary Book-Entry Note

	Exhibit B-8
	 	Form of Transfer Certificate for Exchange or Transfer from
Unrestricted Book-Entry Note to 144A Book-Entry Note

	Exhibit C
	 	Form of Investment Letter to be Delivered in Connection with
Transfers to Non-QIB Accredited Investors

	Exhibit D-1
	 	Form of Monthly Report

	Exhibit D-2
	 	Form of Annual Report

	Exhibit E
	 	Form of Full Service Lease

	Exhibit F
	 	Form of Net Lease








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     This INDENTURE, dated as of November 5, 2009 (as amended, supplemented or otherwise
modified from time to time, this “Indenture”), by and between TRINITY RAIL LEASING VII LLC, a
Delaware limited liability company, as the issuer of the Equipment Notes hereunder (“TRL-VII” or
the “Issuer”), and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as indenture trustee
for the Equipment Notes (the “Indenture Trustee”).



WITNESSETH:



     WHEREAS, the Issuer and the Indenture Trustee are executing and delivering this Indenture in
order to provide for the issuance by the Issuer of the Equipment Notes, the terms of which shall be
specified in this Indenture; and



     WHEREAS, the obligations of the Issuer under the Equipment Notes issued pursuant to this
Indenture and the other Secured Obligations shall be secured by the Collateral further granted and
described below;



     NOW THEREFORE, in consideration of the mutual agreements herein contained, and of other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:



GRANTING CLAUSES



     The Issuer hereby pledges, transfers, assigns, and otherwise conveys to the Indenture Trustee
for the benefit and security of the Noteholders and other Secured Parties, and grants to the
Indenture Trustee for the benefit and security of the Noteholders and other Secured Parties a
security interest in and Encumbrance on, all of the Issuer’s assets, whether now existing or
hereafter created or acquired and wherever located, including all right, title and interest, in, to
and under the assets and property described below (collectively, the “Collateral”):



          (a) each Issuer Document, in each case, as such agreements may be amended, amended and
restated, supplemented or otherwise modified from time to time (collectively, the “Assigned
Agreements”);




          (b) (i) all Railcars described on Schedule 2 hereto, together with all other Railcars conveyed
to the Issuer from time to time, whether pursuant to the Asset Transfer Agreement or otherwise, and
any and all substitutions and replacements therefor, (ii) all licenses, manufacturer’s warranties
and other warranties, Supporting Obligations (including in respect of any related Lease), Payment
Intangibles, Accounts, Instruments, Chattel Paper (including the Leases described on Schedule 3
hereto and any other related Leases of the Railcars and all related Lease Payments), General
Intangibles and all other rights and obligations related to any such aforementioned Assigned
Agreement, Railcars or Leases, including, without limitation, all rights, powers, privileges,
options and other benefits of the Issuer to receive moneys and other property due and to become due
under or pursuant to such Assigned Agreements, such Railcars or Leases, including, without
limitation, all rights, powers, privileges, options and other benefits to receive and collect
rental payments, income, revenues, profits and other amounts, payments, tenders or security
(including any cash collateral) from any other party thereto (including, in the case of related
Leases, from the Lessees thereunder), (iii) all rights, powers, privileges, options
and other benefits of the Issuer to receive proceeds of any casualty insurance, condemnation







 









 







award, indemnity, warranty or guaranty with respect to such Assigned Agreements, Railcars or
Leases, (iv) all claims of the Issuer for damages arising out of or for breach of or default under
any Assigned Agreement or in respect of any related Lease and (v) the rights, powers, privileges,
options and other benefits of the Issuer to perform under each Assigned Agreement and related
Lease, to compel performance and otherwise exercise all remedies thereunder and to terminate each
Assigned Agreement and related Lease;




          (c) all (i) Railroad Mileage Credits allocable to such Railcars and any payments in respect of
such credits, (ii) tort claims or any other claims of any kind or nature related to such Railcars
and any payments in respect of such claims, (iii) SUBI Certificates evidencing a SUBI interest in
the Trinity Marks related to such Railcars and (iv) other payments owing by any Person (including
any railroads or similar entities) in respect of or attributable to such Railcars or the use, loss,
damage, casualty, condemnation of such Railcars or the Marks associated therewith, in each case
whether arising by contract, operation of law, course of dealing, industry practice or otherwise;




          (d) all Indenture Accounts and all Investment Property therein (including, without limitation,
all (i) securities, whether certificated or uncertificated, (ii) Security Entitlements,
(iii) Securities Accounts, (iv) commodity contracts and (v) commodity accounts) in which the Issuer
has now, or acquires from time to time hereafter, any right, title or interest in any manner, and
the certificates or instruments, if any, representing or evidencing such investment property, and
all dividends, distributions, return of capital, interest, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or in exchange for
any or all of such investment property with respect thereto, including, without limitation, any
Permitted Investments purchased with funds on deposit in any Indenture Accounts, and all income
from the investment of funds therein;




          (e) all insurance policies maintained by the Issuer or for its benefit (including, without
limitation, all insurance policies maintained by the Manager or the Insurance Manager for the
benefit of the Issuer) covering all or any portion of the Collateral, and all payments thereon or
with respect thereto; and




          (f) all Proceeds, accessions, profits, products, income benefits, substitutions and
replacements, whether voluntary or involuntary, of and to any of the property of the Issuer
described in the preceding clauses (including, without limitation, the Issuer’s claims for
indemnity thereunder and payments with respect thereto).



Such Security Interests are made in trust and subject to the terms and conditions of this Indenture
as collateral security for the payment and performance in full by the Issuer of all Outstanding
Obligations and for the prompt payment in full by the Issuer of the respective amounts due and the
prompt performance in full by the Issuer of all of its other obligations, in each case, under the
Issuer Documents, the Equipment Notes and the Operative Agreements to which the Issuer is a party
(collectively, the “Secured Obligations”), all as provided in this Indenture.




     For avoidance of doubt it is expressly understood and agreed that, to the extent the UCC is
revised subsequent to the date hereof such that the definition of any of the foregoing terms
included in the description of Collateral is changed, the parties hereto desire that any
property



2









 




which is included in such changed definitions which would not otherwise be included in the
foregoing grant on the date hereof be included in such grant immediately upon the effective date of
such revision.




     The Indenture Trustee acknowledges such Security Interests, accepts the duties created hereby
in accordance with the provisions hereof and agrees to hold and administer all Collateral for the
use and benefit of all present and future Secured Parties.



     The Issuer hereby irrevocably authorizes the Indenture Trustee at any time, and from time to
time, to file, without the signature of the Issuer, in any filing office in any UCC jurisdiction
necessary or desirable to perfect the Security Interests granted herein, any initial financing
statements, continuation statements and amendments thereto that (i) indicate or describe the
Collateral regardless of whether any particular asset constituting Collateral falls within the
scope of Article 9 of the UCC in the same manner as described herein or in any other manner as the
Indenture Trustee may determine in its sole discretion is necessary or desirable to ensure the
perfection of the Security Interests granted herein, or (ii) provide any other information required
by Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement,
continuation statement or amendment, including whether the Issuer is an organization, the type of
organization and any organization identification number issued to the Issuer. The Issuer agrees to
furnish the information described in clause (ii) of the preceding sentence to the Indenture Trustee
promptly upon the Indenture Trustee’s request. Nothing in the foregoing shall be deemed to create
an obligation of the Indenture Trustee to file any financing statement, continuation statements or
amendment thereto.



     Priority. The Issuer intends the Security Interests in favor of the Indenture Trustee
to be prior to all other Encumbrances in respect of the Collateral, and the Issuer has taken and
shall take or cause to be taken all actions necessary to obtain and maintain, in favor of the
Indenture Trustee, for the benefit of the Noteholders and other Secured Parties, a first priority,
perfected security interest in the Collateral, to the extent that perfection can be achieved by the
filing of a UCC-1 financing statement in any UCC jurisdiction and/or other similar filings with the
STB. With respect to Leases related to Portfolio Railcars where the Lessee thereunder is a
Canadian resident, the Issuer has taken and shall take or cause to be taken all actions necessary
or advisable to obtain and maintain, in favor of the Indenture Trustee, a first priority, perfected
security interest in the related Railcars including, without limitation, making all such filings,
registrations and recordings with the Registrar General of Canada as are necessary or advisable to
obtain and maintain a first priority, perfected security interest in such Railcars and taking any
actions that may be required by clause (C) of Section 2.2(e) of the Management Agreement.
Notwithstanding the foregoing, the Issuer shall not be required to make any filings, registrations
or recordation in Mexico. The Indenture Trustee shall have all of the rights, remedies and
recourses with respect to the Collateral afforded a secured party under all applicable law in
addition to, and not in limitation of, the other rights, remedies and recourses granted to the
Indenture Trustee by this Indenture or any law relating to the creation and perfection of security
interests in the Collateral.



3









 





     Continuance of Security.



          (a) Except as otherwise provided under “Releases” below, the Security Interests created under
this Indenture shall remain in force as continuing security to the Indenture Trustee, for the
benefit of the Noteholders and other Secured Parties, until the repayment and performance in full
of all Secured Obligations, notwithstanding any intermediate payment or satisfaction of any part of
the Secured Obligations or any settlement of account or any other act, event or matter whatsoever,
and shall secure Secured Obligations, including, without limitation, the ultimate balance of the
moneys and liabilities hereby secured.




          (b) No assurance, security or payment which may be avoided or adjusted under the law,
including under any enactment relating to bankruptcy or insolvency and no release, settlement or
discharge given or made by the Indenture Trustee on the faith of any such assurance, security or
payment, shall prejudice or affect the right of the Indenture Trustee to recover the Secured
Obligations from the Issuer (including any moneys which it may be compelled to pay or refund under
the provisions of any applicable insolvency legislation of any applicable jurisdiction and any
costs payable by it pursuant to or otherwise incurred in connection therewith) or to enforce the
Security Interests granted under this Indenture to the full extent of the Secured Obligations and
accordingly, if any release, settlement or discharge is or has been given hereunder and there is
subsequently any such avoidance or adjustment under the law, it is expressly acknowledged and
agreed that such release, settlement or discharge shall be void and of no effect whatsoever.




          (c) If the Indenture Trustee shall have grounds in its absolute discretion acting in good
faith for believing that the Issuer may be insolvent pursuant to the provisions of any applicable
insolvency legislation in any relevant jurisdiction as at the date of any payment made by the
Issuer to the Indenture Trustee (provided that the Indenture Trustee shall have no duty to inquire
or investigate and shall not be deemed to have knowledge of same absent written notice received by
a responsible officer of the Indenture Trustee), the Indenture Trustee shall retain the Security
Interests contained in or created pursuant to this Indenture until the expiration of a period of
one month plus such statutory period within which any assurance, security, guarantee or payment can
be avoided or invalidated after the payment and discharge in full of all Secured Obligations
notwithstanding any release, settlement, discharge or arrangement which may be given or made by the
Indenture Trustee on, or as a consequence of, such payment or discharge of liability, provided
that, if at any time within such period, the Issuer shall commence a voluntary winding-up or other
voluntary case or other proceeding under any bankruptcy, reorganization, liquidation or insolvency
law or statute now or hereafter in effect in any jurisdiction seeking liquidation, reorganization
or other relief with respect to the Issuer or the Issuer’s debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect in any jurisdiction or seeking the appointment of
an administrator, a trustee, receiver, liquidator, custodian or other similar official of the
Issuer or any substantial part of its property or if the Issuer shall consent to any such relief or
to the appointment of or taking possession by any such official in an involuntary case or other
proceeding commenced against the Issuer, or making a general assignment for the benefit of any
creditor of the Issuer under any bankruptcy, reorganization, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction, the Indenture Trustee shall continue to
retain such Security Interest for such further period as the Indenture Trustee may reasonably
determine on advice of counsel and such Security Interest





4









 







shall be deemed to have continued to have been held as security for the payment and discharge
to the Indenture Trustee of all Secured Obligations.




     No Transfer of Duties. The Security Interests granted hereby are granted as security
only and shall not (i) transfer or in any way affect or modify, or relieve the Issuer from, any
obligation to perform or satisfy any term, covenant, condition or agreement to be performed or
satisfied by the Issuer under or in connection with this Indenture or any Issuer Document or any
Collateral or (ii) impose any obligation on any of the Secured Parties or the Indenture Trustee to
perform or observe any such term, covenant, condition or agreement or impose any liability on any
of the Secured Parties or the Indenture Trustee for any act or omission on the part of the Issuer
relative thereto or for any breach of any representation or warranty on the part of the Issuer
contained therein or made in connection therewith unless otherwise expressly provided therein.



     Collateral.



          (a) Generally. On the Closing Date, all Instruments, Chattel Paper, Securities or
other documents, including, without limitation, any Chattel Paper Originals evidencing the initial
Leases described on Schedule 3 hereto and SUBI Certificates, representing or evidencing Collateral
shall be delivered to and held by or on behalf of the Indenture Trustee on behalf of the Secured
Parties pursuant hereto all in form and substance reasonably satisfactory to the Indenture Trustee.
Subject to subsections (c) and (d) under this heading, until the termination of the Security
Interest granted hereby, if the Issuer shall acquire (by purchase, contribution, substitution,
replacement or otherwise) any additional Collateral evidenced by Instruments or Chattel Paper at
any time or from time to time after the date hereof, the Issuer shall promptly pledge and deposit
the Collateral so evidenced as security for the Secured Obligations with the Indenture Trustee and
deliver same to the custodial possession of the Indenture Trustee, and the Indenture Trustee shall
accept under this Indenture such delivery.




          (b) Safekeeping. The Indenture Trustee agrees to maintain the Collateral received by
it (including possession of the Chattel Paper Originals) and all records and documents relating
thereto at such address or addresses as may from time to time be specified by the Indenture Trustee
in writing to each Secured Party and the Issuer. The Indenture Trustee shall keep all Collateral
and related documentation in its possession separate and apart from all other property that it is
holding in its possession and from its own general assets and shall maintain accurate records
pertaining to the Permitted Investments and Indenture Accounts included in the Collateral in such a
manner as shall enable the Indenture Trustee, the Secured Parties and the Issuer to verify the
accuracy of such record keeping. The Indenture Trustee’s books and records shall at all times show
that to the extent that any Collateral is held by the Indenture Trustee such Collateral shall be
held as agent of and custodian for the Secured Parties and is not the property of the Indenture
Trustee. The Indenture Trustee will promptly report to each Secured Party and the Issuer any
failure on its part to hold the Collateral as provided in this subsection and will promptly take
appropriate action to remedy any such failure.




          (c) Limitations on Common Schedules and Riders. On and after the date hereof, the
Issuer shall use commercially reasonable efforts to cause all Portfolio Railcars which are subject
to a Lease (or become subject to a Lease pursuant to the exercise of any replacement, substitution
or remarketing rights of the Issuer under the Operative Agreements) to be identified





5









 







in separate executed Schedules or Riders to the related “master lease agreement” with the
applicable Lessee such that only Portfolio Railcars are identified on the applicable Schedules or
Riders and no railcars are identified thereon which are owned by any Person other than the Issuer
(such other party, a “Non-Indenture Party”); provided, however, that to the extent the separateness
of such Schedule or Rider cannot be maintained, (i) in no event shall the percentage of Portfolio
Railcars in the aggregate (measured by Adjusted Value) contained on Schedules or Riders which also
include railcars owned by a Non-Indenture Party exceed 20% of the Portfolio Railcars in the
aggregate (measured by Adjusted Value) and (ii) in all cases in which Schedules or Riders contain
Portfolio Railcars together with other railcars owned by a Non-Indenture Party, the applicable
Lessee(s) shall have agreed, if requested by the Indenture Trustee acting at the Direction of the
Requisite Majority (which request may only be made in connection with the exercise of remedies
against such Portfolio Railcars), to re-execute one or more separate Schedules or Riders for such
Portfolio Railcars and other applicable railcars such that the Schedules and Riders identifying the
Portfolio Railcars do not identify any railcars other than such Portfolio Railcars.




          (d) Custody of Leases. Upon the written request of the Issuer, in the event that the
separateness of Schedules or Riders cannot be maintained as aforesaid, the parties hereto agree to
implement a custodial arrangement with respect to Leases related to Portfolio Railcars whereby
Wilmington Trust Company, as custodian (or any other financial institution or trust company
reasonably satisfactory to the parties hereto) will maintain custody of the original of such Leases
(including all such non-separate Schedules and Riders) for the benefit of the Secured Parties and
any Non-Indenture Party with an interest therein, as their interests may appear. Such custodial
arrangement will be evidenced by a custodial agreement to contain terms and conditions reasonably
satisfactory to the Issuer and the Indenture Trustee.




          (e) Notifications. The Indenture Trustee at the expense of the Issuer shall promptly
forward to the Issuer and the Manager a copy of each notice, request, report, or other document
relating to any Issuer Document included in the Collateral that is received by a Responsible
Officer of the Indenture Trustee from any Person other than the Issuer or the Manager on and after
the Closing Date.




     Releases. If at any time all or any part of the Collateral is to be sold,
transferred, assigned or otherwise disposed of by the Issuer or the Indenture Trustee or any Person
on its or their behalf (but in any such case only as required or permitted by the Operative
Agreements), the Indenture Trustee upon receipt of written notice from the Issuer, which notice
shall be delivered at least five (5) Business Days prior to such sale, transfer, assignment or
disposal, on or prior to the date of such sale, transfer, assignment or disposal (but not to be
effective until the date of such sale, transfer, assignment or disposal) (or, in the case of a
Lessee’s exercise of a purchase option, on, immediately prior to or after the date of such
purchase, as may be requested by the Issuer), at the expense of the Issuer, execute such
instruments of release prepared by the Issuer, in recordable form, if necessary, in favor of the
Issuer or any other Person as the Issuer may reasonably request, deliver the relevant part of the
Collateral in its possession to the Issuer, otherwise release the Security Interest evidenced by
this Indenture on such Collateral and release and deliver such Collateral to the Issuer and issue
confirmation, to the relevant purchaser, transferee, assignee, insurer, and such other Persons as
the Issuer may direct, upon being requested to do so by the Issuer, that the relevant Collateral is
no longer subject to the Security



6









 




Interests. Any such release to the Issuer shall be deemed to release or reassign as
appropriate in respect of the Collateral such grants and assignments arising hereunder.




     At the request of the Issuer, upon the payment in full of all Secured Obligations, including,
without limitation, the payment in full in cash of all unpaid principal of and accrued interest on
the Equipment Notes, the Indenture Trustee shall release the Security Interests in the Portfolio
and the other Collateral hereunder. In connection therewith, the Indenture Trustee agrees, at the
expense of the Issuer and without the necessity of any consent from any Secured Party, to execute
such instruments of release, in recordable form if necessary, in favor of the Issuer as the Issuer
may reasonably request in respect of the release of such Portfolio from the Security Interests, and
to otherwise release the security interests evidenced by this Indenture in and with respect to such
Collateral to the Issuer and to issue confirmation to such Persons as the Issuer may direct, upon
being requested to do so by the Issuer, that such Collateral is no longer subject to the Security
Interests.



     No release of any Collateral shall be effected by any Optional Redemption by the Issuer of the
Equipment Notes in part and not in whole.



     Exercise of the Issuer’s Rights Concerning the Management Agreement. The Issuer
hereby agrees that, whether or not an Event of Default has occurred and is continuing, so long as
this Indenture has not been terminated and the Security Interests on the Collateral released, the
Indenture Trustee (acting at the Direction of the Requisite Majority) shall have the exclusive
right to exercise and enforce all of the rights of the Issuer set forth in Sections 8.2, 8.3, 8.5
(other than the right to propose the list of replacement managers pursuant to Section 8.5(b)) and
8.6 of the Management Agreement (including, without limitation, the rights to deliver all notices,
declare a Manager Termination Event, terminate the Management Agreement, elect to replace the
Manager and/or elect to appoint a Successor Manager and select any replacement Manager, and the
right to increase the Management Fee and/or add an incentive fee payable to any such Successor
Manager); provided that so long as no Event of Default has occurred and is continuing, the Issuer
shall retain the non-exclusive right to approve the list of proposed replacement Managers (such
approval not to be unreasonably withheld or delayed) and to deliver notices under Section 8.2 of
the Management Agreement and declare a Manager Termination Event thereunder. In furtherance of the
foregoing, the Issuer hereby irrevocably appoints the Indenture Trustee as its attorney-in-fact to
exercise all rights described in this Granting Clause provision in its place and stead.



ARTICLE I




DEFINITIONS



     Section 1.01 Definitions.



     For purposes of this Indenture, the terms set forth on Annex A hereto shall have the meanings
indicated on such Annex A.



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     Section 1.02 Rules of Construction.



     Unless the context otherwise requires:



          (a) A term has the meaning assigned to it and an accounting term not otherwise defined has the
meaning assigned to it in accordance with U.S. GAAP.




          (b) The terms “herein”, “hereof” and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other subdivision.




          (c) Unless otherwise indicated in context, all references to Articles, Sections, Appendices,
Exhibits or Annexes refer to an Article or Section of, or an Appendix, Exhibit or Annex to, this
Indenture.




          (d) Words of the masculine, feminine or neuter gender shall mean and include the correlative
words of other genders, and words in the singular shall include the plural, and vice versa.




          (e) The terms “include”, “including” and similar terms shall be construed as if followed by
the phrase “without limitation”.




          (f) References in this Indenture to an agreement or other document (including this Indenture)
mean the agreement or other document and all schedules, exhibits, annexes and other materials that
are part of such agreement and include references to such agreement or document as amended,
supplemented, restated or otherwise modified in accordance with its terms and the provisions of
this Indenture, and the provisions of this Indenture apply to successive events and transactions.




          (g) References in this Indenture to any statute or other legislative provision shall include
any statutory or legislative modification or re-enactment thereof, or any substitution therefor.




          (h) References in this Indenture to the Equipment Notes include the terms and conditions
applicable to the Equipment Notes; and any reference to any amount of money due or payable by
reference to the Equipment Notes shall include any sum covenanted to be paid by the Issuer under
this Indenture in respect of the Equipment Notes.




          (i) References in this Indenture to any action, remedy or method of judicial proceeding for
the enforcement of the rights of creditors or of security shall be deemed to include, in respect of
any jurisdiction other than the State of New York, references to such action, remedy or method of
judicial proceeding for the enforcement of the rights of creditors or of security available or
appropriate in such jurisdiction as shall most nearly approximate such action, remedy or method of
judicial proceeding described or referred to in this Indenture.




          (j) Where any payment is to be made, funds applied or any calculation is to be made hereunder
on a day which is not a Business Day, unless any Operative Agreement otherwise provides, such
payment shall be made, funds applied and calculation made on the next succeeding Business Day, and
payments shall be adjusted accordingly.





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          (k) For purposes of determining the balance of amounts credited to and/or deposited in an
Indenture Account, the “value” of Permitted Investments deposited in and/or credited to an
Indenture Account shall be the lower of the acquisition cost thereof and the then fair market value
thereof and the “value” of Dollars and cash equivalents of Dollars (other than cash equivalents of
Dollars included in the definition of Permitted Investments) shall be the face value thereof.




     Section 1.03 Compliance Certificates and Opinions.



     Upon any application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture Trustee an
Officer’s Certificate stating that, in the opinion of the signers thereof, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with, and, if requested by the Indenture Trustee, an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture or any indenture supplemental hereto shall include:



          (a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions in this Indenture relating thereto;




          (b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;




          (c) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and




          (d) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.




     Section 1.04 Acts of Noteholders.



          (a) Any direction, consent, waiver or other action provided by this Indenture in respect of
the Equipment Notes or the Collateral to be given or taken by the Indenture Trustee at the
Direction of Noteholders or any Requisite Majority thereof may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Noteholders (or Noteholders
evidencing a Requisite Majority, as applicable) in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Indenture Trustee, to each Rating Agency
where it is hereby expressly required pursuant to this Indenture and to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Noteholders or Requisite Majority thereof






9









 







signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose under this Indenture and
conclusive in favor of the Indenture Trustee or the Issuer, if made in the manner provided in this
Section.




          (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the certificate of any notary public or other officer of any jurisdiction authorized to
take acknowledgments of deeds or administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer and where such execution is by an officer of a
corporation or association, trustee of a trust or member of a partnership, on behalf of such
corporation, association, trust or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved in any other
reasonable manner that the Indenture Trustee deems sufficient.




          (c) In determining whether Noteholders or any Requisite Majority thereof shall have given any
direction, consent, request, demand, authorization, notice, waiver or other Act (a “Direction”)
under this Indenture (including without limitation any consent pursuant to Sections 4.04 or 9.02(a)
hereof), Equipment Notes legally or beneficially owned by any Issuer Group Member shall be
disregarded and deemed not to be Outstanding for purposes of any such determination. In
determining whether the Indenture Trustee shall be protected in relying upon any such Direction,
only Equipment Notes that a Responsible Officer of the Indenture Trustee actually knows to be so
owned shall be so disregarded. Notwithstanding the foregoing, if any such Persons legally or
beneficially own 100% of the Equipment Notes then Outstanding then such Equipment Notes shall not
be so disregarded as aforesaid.




          (d) The Issuer may at its option, by delivery of Officers’ Certificates to the Indenture
Trustee, set a record date other than the Record Date to determine the Noteholders in respect of
the Equipment Notes entitled to give any Direction in respect of such Equipment Notes. Such record
date shall be the record date specified in such Officer’s Certificate which shall be a date not
more than 30 days prior to the first solicitation of Noteholders in connection therewith. If such
a record date is fixed, such Direction may be given before or after such record date, but only the
Noteholders of record of the Equipment Notes at the close of business on such record date shall be
deemed to be Noteholders for the purposes of determining whether Noteholders of the requisite
proportion of Outstanding Equipment Notes have authorized or agreed or consented to such Direction,
and for that purpose the Outstanding Equipment Notes shall be computed as of such record date;
provided that no such Direction by the Noteholders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than one
year after the record date.




          (e) Any Direction or other action by a Noteholder or a Requisite Majority thereof shall bind
the Holder of every Equipment Note issued upon the transfer thereof or in exchange therefor or in
lieu thereof, whether or not notation of such action is made upon such Equipment Note.







10









 








ARTICLE II




THE EQUIPMENT NOTES



     Section 2.01 Authorization, Issuance and Authentication of the Equipment Notes; Amount of
Outstanding Principal Balance; Terms; Form; Execution and Delivery.



          (a) There is hereby created a series of Equipment Notes designated as set forth in the
definition of the term Equipment Notes herein. The aggregate principal balance of the Equipment
Notes as of their date of issuance on the Closing Date is $238,262,640.




          (b) The Equipment Notes to be issued on the Closing Date shall be executed by the Issuer and
delivered to the Indenture Trustee for authentication and the Indenture Trustee shall authenticate
and deliver the Equipment Notes upon the Issuer’s request and direction set forth in an Officer’s
Certificate of the Issuer signed by one of its authorized signatories, without further action on
the part of the Issuer. Any such authentication may be made on separate counterparts and by
facsimile.




          (c) There shall be issued, delivered and authenticated on the Closing Date to each of the
Noteholders identified on such Equipment Notes, Equipment Notes in the principal amounts and
maturities and bearing the interest rates set forth thereon (or incorporated by reference therein
from this Indenture), in each case in registered form and substantially in the form set forth on
Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements printed, lithographed, typewritten or engraved
thereon, as may be required to comply with the rules of any securities exchange on which such
Equipment Notes may be listed or to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Indenture Trustee executing such Equipment Notes, such
determination by said Indenture Trustee to be evidenced by its authentication of such Equipment
Notes. Definitive Notes shall be printed, lithographed, typewritten or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by the rules of any
securities exchange on which the Equipment Notes may be listed, all as determined by the Indenture
Trustee authenticating such Equipment Notes, as evidenced by such authentication.





          (i) Equipment Notes sold in reliance on Rule 144A shall be represented by a single
permanent 144A Book-Entry Note which will be deposited with DTC or its custodian, the
Indenture Trustee or an agent of the Indenture Trustee and registered in the name of Cede as
nominee of DTC.




          (ii) Equipment Notes offered and sold outside of the United States in reliance on
Regulation S shall be represented by a Regulation S Temporary Book-Entry Note, which will be
deposited with the Indenture Trustee or an agent of the Indenture Trustee as custodian for
and registered in the name of Cede, as nominee of DTC. Beneficial interests in each
Regulation S Temporary Book-Entry Note may be held only through Euroclear or Clearstream;
provided, however, that such interests may be



11









 






exchanged for interests in a 144A Book-Entry Note or a Definitive Note in accordance
with the certification requirements described in Section 2.07 hereof.




          (iii) A beneficial owner of an interest in a Regulation S Temporary Book-Entry Note may
receive payments in respect of such Regulation S Temporary Book-Entry Notes only after
delivery to Euroclear or Clearstream, as the case may be, of a written certification
substantially in the form set forth in Exhibit B-1 to this Indenture, and upon delivery by
Euroclear or Clearstream, as the case may be, to the Indenture Trustee and Note Registrar of
a certification or certifications substantially in the form set forth in Exhibit B-2 to this
Indenture. The delivery by a beneficial owner of the certification referred to above shall
constitute its irrevocable instruction to Euroclear or Clearstream, as the case may be, to
arrange for the exchange of the beneficial owner’s interest in the Regulation S Temporary
Book-Entry Note for a beneficial interest in the Unrestricted Book-Entry Note after the
Exchange Date in accordance with the paragraph below.




          (iv) Not earlier than the Exchange Date, interests in each Regulation S Temporary
Book-Entry Note will be exchangeable for interests in the related permanent global note (an
“Unrestricted Book-Entry Note”). Each Unrestricted Book-Entry Note will be deposited with
the Indenture Trustee and registered in the name of Cede as nominee of DTC. After (1) the
Exchange Date and (2) receipt by the Indenture Trustee and Note Registrar of written
instructions from Euroclear or Clearstream, as the case may be, directing the Indenture
Trustee and Note Registrar to credit or cause to be credited to either Euroclear’s or
Clearstream’s, as the case may be, depositary account a beneficial interest in the
Unrestricted Book-Entry Note in a principal amount not greater than that of the beneficial
interest in the Regulation S Temporary Book-Entry Note, the Indenture Trustee and Note
Registrar shall instruct DTC to reduce the principal amount of the Regulation S Temporary
Book-Entry Note and increase the principal amount of the Unrestricted Book-Entry Note, in
each case by the principal amount of the beneficial interest in the Regulation S Temporary
Book-Entry Note to be so transferred, and to credit or cause to be credited to the account
of a Direct Participant a beneficial interest in the Unrestricted Book-Entry Note having a
principal amount equal to the reduction in the principal amount of such Regulation S
Temporary Book-Entry Note.




          (v) Upon the exchange of the entire principal amount of the Regulation S Temporary
Book-Entry Note for beneficial interests in the Unrestricted Book-Entry Note, the Indenture
Trustee shall cancel the Regulation S Temporary Book-Entry Note in accordance with the
Indenture Trustee’s policies in effect from time to time.




          (vi) No interest in the Regulation S Book-Entry Notes may be held by or transferred to
a United States Person except for exchanges for a beneficial interest in a 144A Book-Entry
Note or a Definitive Note as described below.



          (d) The Equipment Notes shall be executed on behalf of the Issuer by the manual or facsimile
signature of an Authorized Representative of the Issuer.







12









 








     (e) Each Equipment Note bearing the manual or facsimile signatures of any individual who was
at the time such Equipment Note was executed an Authorized Representative of the Issuer shall bind
the Issuer, notwithstanding that any such individual has ceased to hold such office prior to the
authentication and delivery of such Equipment Notes or any payment thereon.



     (f) No Equipment Note shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless it shall have been executed on behalf of the Issuer as provided
in clause (c) and (e) above and authenticated by or on behalf of the Indenture Trustee as provided
in clause (c) above. Such signatures shall be conclusive evidence that such Equipment Note has
been duly executed and authenticated under this Indenture. Each Equipment Note shall be dated the
date of its authentication.



     Section 2.02 Restrictive Legends.



     Except as specified in Section 2.11(g) hereof, each 144A Book-Entry Note, each Regulation S
Temporary Book-Entry Note, each Unrestricted Book-Entry Note and each Definitive Note (and all
Equipment Notes issued in exchange therefor or upon registration of transfer or substitution
thereof) shall bear the following legend on the face thereof:




     THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”) OR ANY STATE SECURITIES OR “BLUE SKY” LAWS. THE HOLDER HEREOF, BY
PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF TRINITY RAIL LEASING VII, LLC (THE “ISSUER”)
THAT THIS NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE ISSUER (UPON REDEMPTION
THEREOF OR OTHERWISE), (2) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE UNITED STATES TO A PERSON
WHO IS NOT A U.S. PERSON (AS SUCH TERM IS DEFINED IN REGULATION S OF THE SECURITIES ACT) IN
A TRANSACTION IN COMPLIANCE WITH REGULATION S OF THE SECURITIES ACT OR (4) IN A TRANSACTION
COMPLYING WITH OR EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (SUBJECT
IN THE CASE OF THIS CLAUSE (4) TO RECEIPT OF AN OPINION OF COUNSEL AND SUCH CERTIFICATES AND
OTHER DOCUMENTS AS THE TRUSTEE MAY REQUIRE UNDER THE INDENTURE), IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.




     BY ITS PURCHASE OF ANY NOTE, THE PURCHASER THEREOF WILL BE DEEMED TO HAVE REPRESENTED
AND WARRANTED EITHER THAT (A) IT IS NOT AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3)
OF



13









 






THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) WHETHER OR
NOT SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, A PLAN AS COVERED BY SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE “PLAN ASSETS” BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR OTHER PLAN’S INVESTMENT IN
SUCH ENTITY, OR (B) ITS PURCHASE AND HOLDING OF SUCH NOTE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF A GOVERNMENTAL, NON-U.S. OR CHURCH PLAN, ANY SUBSTANTIALLY SIMILAR FEDERAL, STATE,
LOCAL OR OTHER LAW).




Each Book-Entry Note shall also bear the following legend on the face thereof:




     THIS NOTE IS A GLOBAL BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE
IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY
OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




     UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.



     Section 2.03
Note Registrar and Paying Agent.



          (a) With respect to the Equipment Notes, there shall at all times be maintained an office or
agency in the location set forth in Section 13.04 hereof where Equipment Notes may be presented or
surrendered for registration of transfer or for exchange (each, a “Note Registrar”), and for
payment thereof (each, a “Paying Agent”) and where notices to or demands upon the Issuer in respect
of such Equipment Notes may be served. For so long as the Equipment Notes are listed on any stock
exchange, the Issuer shall appoint and maintain a Paying Agent and a Note Registrar in the
jurisdiction in which such stock exchange is located. The Issuer shall cause each Note Registrar
to keep a register of the Equipment Notes for which it is acting as Note Registrar and of their
transfer and exchange (the “Register”). Written notice of






14









 







the location of each such other office or agency and of any change of location thereof shall
be given by the Indenture Trustee to the Issuer and the Holders of the Equipment Notes. In the
event that no such office or agency shall be maintained or no such notice of location or of change
of location shall be given, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Indenture Trustee. Notwithstanding anything to the contrary in this
Indenture, the entries in the Register shall be conclusive, in the absence of manifest error, and
the Issuer, the Indenture Trustee, and Noteholder shall treat each Person in whose name an
Equipment Note is registered as the beneficial owner thereof for all purposes of this Indenture.
No transfer of an Equipment Note shall be effective unless such transfer has been recorded in the
Register as provided in this Section.




          (b) Each Authorized Agent in the location set forth in Section 13.04 shall be a bank or trust
company, shall be a corporation organized and doing business under the laws of the United States or
any state or territory thereof or of the District of Columbia, with a combined capital and surplus
of at least $75,000,000 (or having a combined capital and surplus in excess of $5,000,000 and the
obligations of which, whether now in existence or hereafter incurred, are fully and unconditionally
guaranteed by a corporation organized and doing business under the laws of the United States, any
state or territory thereof or of the District of Columbia and having a combined capital and surplus
of at least $75,000,000) and shall be authorized under the laws of the United States or any state
or territory thereof to exercise corporate trust powers, subject to supervision by Federal or state
authorities (such requirements, the “Eligibility Requirements”). The Indenture Trustee shall
initially be a Paying Agent and Note Registrar hereunder with respect to the Equipment Notes. Each
Note Registrar other than the Indenture Trustee shall furnish to the Indenture Trustee, at stated
intervals of not more than six months, and at such other times as the Indenture Trustee may request
in writing, a copy of the Register maintained by such Note Registrar.




          (c) Any corporation into which any Authorized Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any Authorized Agent shall be a party, or any corporation succeeding to the corporate
trust business of any Authorized Agent, shall be the successor of such Authorized Agent hereunder,
if such successor corporation is otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the parties hereto or such Authorized Agent
or such successor corporation.




          (d) Any Authorized Agent may at any time resign by giving written notice of resignation to the
Indenture Trustee and the Issuer. The Issuer may, and at the request of the Indenture Trustee
shall, at any time terminate the agency of any Authorized Agent by giving written notice of
termination to such Authorized Agent and to the Indenture Trustee. Upon the resignation or
termination of an Authorized Agent or if at any time any such Authorized Agent shall cease to be
eligible under this Section (when, in either case, no other Authorized Agent performing the
functions of such Authorized Agent shall have been appointed by the Indenture Trustee), the Issuer
shall promptly appoint one or more qualified successor Authorized Agents to perform the functions
of the Authorized Agent that has resigned or whose agency has been terminated or who shall have
ceased to be eligible under this Section. The Issuer shall give written notice of any such
appointment made by it to the Indenture Trustee; and in each case the






15









 







Indenture Trustee shall mail notice of such appointment to all Holders of the Equipment Notes
as their names and addresses appear on the Register for the Equipment Notes.




          (e) The Issuer agrees to pay, or cause to be paid, from time to time reasonable compensation
to each Authorized Agent for its services and to reimburse it for its reasonable expenses to be
agreed to pursuant to separate agreements with each such Authorized Agent.




     Section 2.04 Paying Agent to Hold Money in Trust.



     The Indenture Trustee shall require each Paying Agent other than the Indenture Trustee to
agree in writing that all moneys deposited with any Paying Agent for the purpose of any payment on
the Equipment Notes shall be deposited and held in trust for the benefit of the Holders entitled to
such payment, subject to the provisions of this Section. Moneys so deposited and held in trust
shall constitute a separate trust fund for the benefit of the Holders with respect to which such
money was deposited.



     The Indenture Trustee may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, direct any Paying Agent to pay to the
Indenture Trustee all sums held in trust by such Paying Agent; and, upon such payment by any Paying
Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with
respect to such moneys.



     Section 2.05 Method of Payment.



          (a) On each Payment Date, the Indenture Trustee shall, or shall instruct a Paying Agent to,
pay to the Noteholders of the Equipment Notes all interest, principal and premium, if any, on the
Equipment Notes required to be paid on such Payment Date, in each case to the extent of the
Available Collections Amount and pursuant to the Flow of Funds; provided, that in the event and to
the extent receipt of any payment is not confirmed by the Indenture Trustee or such Paying Agent by
noon (New York City time) on such Payment Date or any Business Day thereafter, distribution thereof
shall be made on the Business Day following the Business Day such payment is received; and provided
further, that payment on a Regulation S Temporary Book-Entry Note shall be made to the Holder
thereof only in conformity with Section 2.05(c) hereof. Each such payment on any Payment Date
other than the final payment with respect to the Equipment Notes shall be made by the Indenture
Trustee or Paying Agent to the Noteholders as of the Record Date for such Payment Date. The final
payment with respect to any Equipment Note, however, shall be made only upon presentation and
surrender of such Equipment Note by the Noteholder or its agent at the Corporate Trust Office or
agency of the Indenture Trustee or Paying Agent specified in the notice given by the Indenture
Trustee or Paying Agent with respect to such final payment.




          (b) At such time, if any, as the Equipment Notes are issued in the form of Definitive Notes,
payments on a Payment Date shall be made by check mailed to each Noteholder of a Definitive Note on
the applicable Record Date at its address appearing on the Register maintained with respect to the
Equipment Notes. Alternatively, upon application in writing to the Indenture Trustee, not later
than the applicable Record Date, by a Noteholder of one or more Definitive Notes having an
aggregate original principal amount of not less than






16









 







$1,000,000, any such payments shall be made by wire transfer to an account designated by such
Noteholder at a financial institution in New York, New York; provided that the final payment for
the Equipment Notes shall be made only upon presentation and surrender of the Definitive Notes by
the Noteholder or its agent at the Corporate Trust Office or agency of the Indenture Trustee or
Paying Agent specified in the notice of such final payment given by the Indenture Trustee or Paying
Agent. The Indenture Trustee or Paying Agent shall mail such notice of the final payment of the
Equipment Notes to each of the Noteholders, specifying the date and amount of such final payment.




          (c) The beneficial owner of a Regulation S Temporary Book-Entry Note may arrange to receive
interest, principal and premium payments through Euroclear or Clearstream on such Regulation S
Temporary Book-Entry Note only after delivery by such beneficial owner to Euroclear or Clearstream,
as the case may be, of a written certification substantially in the form of Exhibit B-3 hereto, and
upon delivery of Euroclear or Clearstream, as the case may be, to the Paying Agent of a
certification or certifications substantially in the form of Exhibit B-4 hereto. No interest,
principal or premium shall be paid to any beneficial owner and no interest, principal or premium
shall be paid to Euroclear or Clearstream on such beneficial owner’s interest in a Regulation S
Temporary Book-Entry Note unless Euroclear or Clearstream, as the case may be, has provided such a
certification to the Paying Agent with respect to such interest, principal and/or premium.




     Section 2.06 Minimum Denomination.



     Each Equipment Note shall be issued in minimum denominations of $100,000 and integral
multiples of $1,000 in excess thereof; provided that, notwithstanding anything to the contrary
herein, one Equipment Note may be issued with such excess in integral multiples of $10.



     Section 2.07 Exchange Option.



     If the holder (other than the Purchaser) of a beneficial interest in an Unrestricted
Book-Entry Note deposited with DTC wishes at any time to exchange its interest in the Unrestricted
Book-Entry Note, or to transfer its interest in the Unrestricted Book-Entry Note to a Person who
wishes to take delivery thereof in the form of an interest in the 144A Book-Entry Note, the holder
may, subject to the rules and procedures of Euroclear or Clearstream and DTC, as the case may be,
give directions for the Indenture Trustee and Note Registrar to exchange or cause the exchange or
transfer or cause the transfer of the interest for an equivalent beneficial interest in the 144A
Book-Entry Note. Upon receipt by the Indenture Trustee and Note Registrar of (a) instructions from
Euroclear or Clearstream (based on instructions from depositaries for Euroclear and Clearstream) or
from a DTC Participant, as applicable, or DTC, as the case may be, directing the Indenture Trustee
and Note Registrar to credit or cause to be credited a beneficial interest in the 144A Book-Entry
Note equal to the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or
transferred (such instructions to contain information regarding the DTC Participant account to be
credited with the increase, and, with respect to an exchange or transfer of an interest in the
Unrestricted Book-Entry Note, information regarding the DTC Participant account to be debited with
the decrease), and (b) a certificate in the form of Exhibit B-8, given by the Noteholder (and the
proposed transferee, if applicable), the Indenture Trustee and Note



17









 




Registrar shall instruct DTC to reduce the Unrestricted Book-Entry Note by the aggregate
principal amount of the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or
transferred, and the Indenture Trustee shall instruct DTC, concurrently with the reduction, to
increase the principal amount of the 144A Book-Entry Note by the aggregate principal amount of the
beneficial interest in the Unrestricted Book-Entry Note to be so exchanged or transferred, and to
credit or cause to be credited to the account of the Person specified in the instructions a
beneficial interest in the 144A Book-Entry Note equal to the reduction in the principal amount of
the Unrestricted Book-Entry Note.




     If a holder (other than the Purchaser) of a beneficial interest in the 144A Book-Entry Note
wishes at any time to exchange its interest in the 144A Book-Entry Note for an interest in a
Regulation S Book-Entry Note, or to transfer its interest in the 144A Book-Entry Note to a Person
who wishes to take delivery thereof in the form of an interest in the Regulation S Book-Entry Note,
the holder may, subject to the rules and procedures of DTC, give directions for the Indenture
Trustee and Note Registrar to exchange or cause the exchange or transfer or cause the transfer of
the interest for an equivalent beneficial interest in the Regulation S Book-Entry Note. Upon
receipt by the Indenture Trustee and Note Registrar of (a) instructions given in accordance with
DTC’s procedures from a DTC Participant directing the Indenture Trustee and Note Registrar to
credit or cause to be credited a beneficial interest in the Regulation S Book-Entry Note in an
amount equal to the beneficial interest in the 144A Book-Entry Note to be exchanged or transferred,
(b) a written order given in accordance with DTC’s procedures containing information regarding the
account of the depositaries for Euroclear or Clearstream or another Clearing Agency Participant, as
the case may be, to be credited with the increase and the name of the account and (c) certificates
in the form of Exhibits B-5 and B-7 hereto, respectively, given by the Noteholder and the proposed
transferee of the interest, the Indenture Trustee and Note Registrar shall instruct DTC to reduce
the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A
Book-Entry Note to be so exchanged or transferred and the Indenture Trustee and Note Registrar
shall instruct DTC, concurrently with the reduction, to increase the principal amount of the
Regulation S Book-Entry Note by the aggregate principal amount of the beneficial interest in the
144A Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to
the account of the Person specified in the instructions a beneficial interest in the Regulation S
Book-Entry Note equal to the reduction in the principal amount of the 144A Book-Entry Note.



     Notwithstanding anything to the contrary herein, the Purchaser may exchange beneficial
interests in the Regulation S Temporary Book-Entry Note held by it for interests in the 144A
Book-Entry Note only after delivery by the Purchaser of instructions to DTC for the exchange,
substantially in the form of Exhibit B-6 hereto. Upon receipt of the instructions provided in the
preceding sentence, the Indenture Trustee and Note Registrar shall instruct DTC to reduce the
principal amount of the Regulation S Temporary Book-Entry Note to be so transferred and shall
instruct DTC to increase the principal amount of the 144A Book-Entry Note and credit or cause to be
credited to the account of the placement agent a beneficial interest in the 144A Book-Entry Note
having a principal amount equal to the amount by which the principal amount of the Regulation S
Temporary Book-Entry Note was reduced upon the transfer pursuant to the instructions provided in
the first sentence of this paragraph.



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     If a Book-Entry Note is exchanged for a Definitive Note, such Equipment Notes may be exchanged
or transferred for one another only in accordance with such procedures as are substantially
consistent with the provisions of the three immediately preceding paragraphs (including the
certification requirements intended to ensure that the exchanges or transfers comply with Rule 144
or Regulation S, as the case may be) and as may be from time to time adopted by the Indenture
Trustee.



     Section 2.08 Mutilated, Destroyed, Lost or Stolen Equipment Notes.



     If any Equipment Note shall become mutilated, destroyed, lost or stolen, the Issuer shall
issue, upon the written request of the Holder thereof and presentation of the Equipment Note or
satisfactory evidence of destruction, loss or theft thereof to the Indenture Trustee or Note
Registrar, and the Indenture Trustee shall authenticate and the Indenture Trustee or Note Registrar
shall deliver in exchange therefor or in replacement thereof, a new Equipment Note, payable to such
Holder in the same principal amount, of the same maturity, with the same payment schedule, bearing
the same interest rate and dated the date of its authentication. If the Equipment Note being
replaced has become mutilated, such Equipment Note shall be surrendered to the Indenture Trustee or
a Note Registrar and forwarded to the Issuer by the Indenture Trustee or such Note Registrar. If
the Equipment Note being replaced has been destroyed, lost or stolen, the Holder thereof shall
furnish to the Issuer, the Indenture Trustee or a Note Registrar (i) such security or indemnity as
may be required by them to save the Issuer, the Indenture Trustee and such Note Registrar harmless
and (ii) evidence satisfactory to the Issuer, the Indenture Trustee and such Note Registrar of the
destruction, loss or theft of such Equipment Note and of the ownership thereof. The Noteholder
will be required to pay any tax or other governmental charge imposed in connection with such
exchange or replacement and any other expenses (including the fees and expenses of the Indenture
Trustee and any Note Registrar) connected therewith.



     Section 2.09 Payments of Transfer Taxes.



     Upon the transfer of any Equipment Note or Equipment Notes pursuant to Section 2.07 hereof,
the Issuer or the Indenture Trustee may require from the party requesting such new Equipment Note
or Equipment Notes payment of a sum to reimburse the Issuer or the Indenture Trustee for, or to
provide funds for the payment of, any transfer tax or similar governmental charge payable in
connection therewith.



     Section 2.10
Book-Entry Registration.



          (a) Upon the issuance of any Book-Entry Notes, DTC or its custodian will credit, on its
book-entry registration and transfer system, the respective principal amounts of the individual
beneficial interests represented by such Book-Entry Notes to the accounts of a Direct Participant.
Ownership of beneficial interests in a Book-Entry Note will be limited to DTC Participants or
Persons who hold interests through DTC Participants. Ownership of beneficial interests in the
Book-Entry Notes will be shown on, and the transfer of that ownership will be effected only
through, records maintained by DTC (with respect to interests of DTC Participants) and the records
of DTC Participants (with respect to interests of Persons other than DTC Participants).







19









 








          (b) So long as DTC, or its nominee, is the registered owner or holder of a Book-Entry Note,
DTC or such nominee, as the case may be, will be considered the sole owner or Noteholder
represented by such Book-Entry Note for all purposes under this Indenture, and the Book-Entry
Notes. Unless (a) DTC notifies the Issuer that it is unwilling or unable to continue as depository
for a Book-Entry Note, (b) the Issuer elects to terminate the book-entry system for the Book-Entry
Notes, or (c) an Event of Default has occurred and the Indenture Trustee acting at the Direction of
a Requisite Majority certifies that continuation of a book-entry system through DTC (or a
successor) for the Equipment Notes is no longer in the best interests of the Noteholders, owners of
beneficial interests in a Book-Entry Note will not be entitled to have any portion of such
Book-Entry Note registered in their names, will not receive or be entitled to receive physical
delivery of Equipment Notes in definitive form and will not be considered to be the owners or
Noteholders under this Indenture or the Book-Entry Notes. In addition, no beneficial owner of an
interest in a Book-Entry Note will be able to transfer that interest except in accordance with
DTC’s applicable procedures (and in addition, if applicable, those of Clearstream and Euroclear).




          (c) Investors may hold their interest in a Regulation S Book-Entry Note through Clearstream or
Euroclear, if they are participants in such systems, or indirectly through organizations that are
participants in such systems. After the Exchange Date, investors also may hold such interests
through organizations other than Clearstream and Euroclear that are DTC Participants. Clearstream
and Euroclear will hold interests in a Regulation S Book-Entry Note on behalf of their participants
through customers’ securities accounts in their respective names on the books of their respective
depositaries, which in turn will hold such interests in a Regulation S Book-Entry Note in
customers’ accounts in the depositaries’ names on the books of DTC. Citibank, N.A. will initially
act as depositary for Clearstream and Morgan Guaranty Trust Company of New York, Brussels Office,
will initially act as depositary for Euroclear. Investors may hold their interests in a 144A
Book-Entry Note directly through DTC, if they are DTC Participants, or indirectly through
organizations that are DTC Participants.




          (d) All payments of principal and interest will be made by the Paying Agent on behalf of the
Issuer in immediately available funds or the equivalent, so long as DTC continues to make its
Same-Day Funds Settlement System available to the Issuer.




     None of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely on, and shall be
fully protected in relying on, such registration instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee shall recognize the Persons in whose name the Definitive Notes are
registered in the Register as Noteholders hereunder. Neither the Issuer nor the Indenture Trustee
shall be liable if the Indenture Trustee or the Issuer is unable to locate a qualified successor
Noteholder.



     Definitive Notes will be transferable and exchangeable for Definitive Notes at the office of
the Indenture Trustee or the office of a Note Registrar upon compliance with the requirements set
forth herein. In the case of a transfer of only part of a holding of Definitive Notes, a new
Definitive Note shall be issued to the transferee in respect of the part transferred and a new
Definitive Note in respect of the balance of the holding not transferred shall be issued to the
transferor and may be obtained at the office of the applicable Note Registrar.



20









 





          (e) Any beneficial interest in one of the Book-Entry Notes as to the Equipment Notes that is
transferred to a Person who takes delivery in the form of an interest in another Book-Entry Note
will, upon transfer, cease to be an interest in such Book-Entry Note and become an interest in such
other Book-Entry Note and, accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other Book-Entry Note for as
long as it remains such an interest.




          (f) Any Definitive Note delivered in exchange for an interest in a 144A Book-Entry Note
pursuant to paragraph (b) of this Section shall, except as otherwise provided by paragraph (f) of
Section 2.11, bear the Private Placement Legend applicable to a 144A Book-Entry Note set forth in
Section 2.02 hereof.




          (g) Any Definitive Note delivered in exchange for an interest in a Unrestricted Book-Entry
Note pursuant to paragraph (b) of this Section shall, except as otherwise provided by paragraph (f)
of Section 2.11, bear the Private Placement Legend applicable to a Unrestricted Book-Entry Note set
forth in Section 2.02 hereof.




     Section 2.11 Special Transfer Provisions.



          (a) Transfers to Non-QIB Institutional Accredited Investors. The following
provisions shall apply with respect to the registration of any proposed transfer of an Equipment
Note (other than a Regulation S Temporary Book-Entry Note) or any interest therein to any
Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons):





          (i) The Note Registrar shall register the transfer of any Equipment Note, whether or
not such Equipment Note bears the Private Placement Legend, if the proposed transferee has
delivered to the Note Registrar (A) a certificate substantially in the form of Exhibit C
hereto and (B) an Opinion of Counsel acceptable to the Issuer that such transfer is in
compliance with the Securities Act.




          (ii) If the proposed transferor is a Direct Participant holding a beneficial interest
in the 144A Book-Entry Note, upon receipt by the Note Registrar of (x) the documents, if
any, required by paragraph (i) and (y) instructions given in accordance with the DTC’s and
the Note Registrar’s procedures, the Note Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the 144A Book-Entry Note in an amount
equal to the principal amount of the beneficial interest in the 144A Book-Entry Note to be
transferred, and the Issuer shall execute, and the Indenture Trustee shall authenticate and
deliver, one or more Definitive Notes of like tenor and amount.



          (b) Transfers to QIBs. The following provisions shall apply with respect to the
registration of any proposed transfer of an interest in a 144A Book-Entry Note or a Definitive Note
issued in exchange for an interest in such 144A Book-Entry Note in accordance with Section 2.11(b)
hereof to a QIB (excluding Non-U.S. Persons):





          (i) If the Equipment Note to be transferred consists of (x) Definitive Notes, the Note
Registrar shall register the transfer if such transfer is being made by a proposed
transferor who delivers a certificate in the form of Exhibit B-8 hereto to the



21









 






Issuer and the Note Registrar, or has otherwise advised the Issuer and the Note
Registrar in writing, that the sale has been made in compliance with the provisions of Rule
144A to a transferee who has signed the certification provided for on the form of Equipment
Note stating, or has otherwise advised the Issuer and the Note Registrar in writing, that it
is purchasing the Equipment Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account are QIBs within the
meaning of Rule 144A, are aware that the sale to it is being made in reliance on Rule 144A
and acknowledge that they have received such information regarding the Issuer as they have
requested pursuant to Rule 144A or have determined not to request such information and that
they are aware that the transferor is relying upon their foregoing representations in order
to claim the exemption from registration provided by Rule 144A or (y) an interest in a 144A
Book-Entry Note, the transfer of such interest may be effected only through the book-entry
system maintained by the DTC.




          (ii) If the proposed transferee is a Direct Participant, and the Equipment Note to be
transferred is a Definitive Note, upon receipt by the Note Registrar of the documents
referred to in clause (i) and instructions given in accordance with the DTC’s and the Note
Registrar’s procedures, the Note Registrar shall reflect on its books and records the date
and an increase in the principal amount at maturity of the 144A Book-Entry Note in an amount
equal to the principal amount at maturity of the Definitive Note to be transferred, and the
Indenture Trustee shall cancel the Definitive Note so transferred.



          (c) Transfers of Interests in a Regulation S Temporary Book-Entry Note. The following
provisions shall apply with respect to registration of any proposed transfer of interests in a
Regulation S Temporary Book-Entry Note:





          (i) The Note Registrar shall register the transfer of any interest in a Regulation S
Temporary Book-Entry Note (x) if the proposed transferee is a Non-U.S. Person and the
proposed transferor has delivered to the Note Registrar a certificate substantially in the
form of Exhibit B-7 hereto or (y) if the proposed transferee is a QIB and the proposed
transferor has checked the box provided for on the form of such Equipment Note stating, or
has otherwise advised the Issuer and the Note Registrar in writing, that the sale has been
made in compliance with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of such Equipment Note stating, or has otherwise
advised the Issuer and the Note Registrar in writing, that it is purchasing such Equipment
Note for its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account are QIBs within the meaning of Rule 144A, are
aware that the sale to them is being made in reliance on Rule 144A and acknowledge that they
have received such information regarding the Issuer as they have requested pursuant to Rule
144A or have determined not to request such information and that they are aware that the
transferor is relying upon their foregoing representations in order to claim the exemption
from registration provided by Rule 144A.




          (ii) If the proposed transferee is a Direct Participant that provides the documents
referred to in clause (i)(y) above, upon receipt by the Note Registrar of such



22









 






documents and instructions given in accordance with DTC’s and the Note Registrar’s
procedures, the Note Registrar shall reflect on its books and records the date and an
increase in the principal amount of the 144A Book-Entry Note, in an amount equal to the
principal amount of the Regulation S Temporary Book-Entry Note to be transferred, and the
Indenture Trustee shall decrease the amount of the Regulation S Temporary Book-Entry Note.



          (d) Transfers of Interests in an Unrestricted Book-Entry Note. The Note Registrar
shall register any transfer of interests in an Unrestricted Book-Entry Note, or a Definitive Note
issued in exchange for an interest in a Regulation S Temporary Book-Entry Note or Unrestricted
Book-Entry Note in accordance with Section 2.11(b) hereof, to U.S. Persons in accordance with
Section 2.07, or to Non-U.S. Persons in accordance with the applicable procedures of Euroclear or
Clearstream and their respective participants.



          (e) Transfers to Non-U.S. Persons at any Time. With respect to any transfer of an
Equipment Note to a Non-U.S. Person. prior to the applicable Exchange Date, the Note Registrar
shall register any proposed transfer of a Regulation S Temporary Book-Entry Note to a Non-U.S.
Person upon receipt of a certificate substantially in the form of Exhibit B-7 hereto from the
proposed transferor.



          (f) ERISA
Transfer Restrictions. Each purchaser and subsequent transferee of any
Equipment Note will be deemed to have represented and warranted either that (i) it is not an
employee benefit plan (as defined in Section 3(3) of ERISA), whether or not subject to the
provisions of Title I of ERISA, a plan as covered by Section 4975 of the Code, or an entity whose
underlying assets include “plan assets” by reason of an employee benefit plan’s or other plan’s
investment in such entity, or (ii) its purchase and holding of the Equipment Note will not result
in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or,
in the case of a governmental, non-U.S. or church plan, any substantially similar federal, state,
local or other law).



          (g) [Reserved].



          (h) General. By its acceptance of any Equipment Note bearing the Private Placement
Legend, each Holder of such Equipment Note acknowledges the restrictions on transfer of such
Equipment Note set forth in this Indenture and in the Private Placement Legend and agrees that it
will transfer such Equipment Note only as provided in this Indenture. The Note Registrar shall not
register a transfer of any Equipment Note unless such transfer complies with the restrictions on
transfer of such Equipment Note set forth in this Indenture. In connection with any transfer of
Equipment Notes, each Holder agrees by its acceptance of its Equipment Notes to furnish the
Indenture Trustee the certifications and legal opinions described herein to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act; provided that the Indenture Trustee shall not be
required to determine (but may rely on a determination made by the Issuer with respect to) the
sufficiency of any such legal opinions.



          (i) Issuer Group Member Limitations. Notwithstanding any other provision herein, no
Equipment Note shall be transferred to any Issuer Group Member unless (i) the



23









 




transferor thereof transfers such Equipment Notes to an Issuer Group Member in an arm’s length
transaction, (ii) the transferor thereof is not an Issuer Group Member, (iii) such transfer is made
solely for the purpose of retiring such Equipment Notes and (iv) the Issuer delivers to the
Indenture Trustee, prior to the effectiveness of such transfer, an Officer’s Certificate of the
Issuer pursuant to which the Issuer covenants and agrees that it will or will cause such
transferred Equipment Notes to be retired within 30 days of such transfer. Notwithstanding any
other provisions of this Indenture to the contrary, no Issuer Group Member shall be entitled to
receive any interest on any Equipment Notes held by it.




     Section 2.12 Temporary Definitive Notes.



     Pending the preparation of Definitive Notes, the Issuer may execute and the Indenture Trustee
may authenticate and deliver temporary Definitive Notes which are printed, lithographed,
typewritten or otherwise produced, in any denomination, containing substantially the same terms and
provisions as are set forth in the applicable exhibit hereto, except for such appropriate
insertions, omissions, substitutions and other variations relating to their temporary nature as the
Authorized Representative of the Issuer executing such temporary Definitive Notes may determine, as
evidenced by his execution of such temporary Definitive Notes.



     If temporary Definitive Notes are issued, the Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of Definitive Notes, the temporary
Definitive Notes shall be exchangeable for Definitive Notes upon surrender of such temporary
Definitive Notes at the Corporate Trust Office of the Indenture Trustee, without charge to the
Holder thereof. Upon surrender for cancellation of any one or more temporary Definitive Notes, the
Issuer shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor
Definitive Notes, in authorized denominations and in the same aggregate principal amounts. Until
so exchanged, such temporary Definitive Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.



     Section 2.13 Statements to Noteholders.



          (a) With respect to each Collection Period, the Issuer shall, not later than the last Business
Day before the Payment Date immediately following the last day of such Collection Period, cause the
Administrator to deliver to the Indenture Trustee, and the Indenture Trustee shall (or shall
instruct any Paying Agent to) promptly thereafter (but not later than such Payment Date) distribute
to the Rating Agencies, and to each Holder of record with respect to such Payment Date, a report,
substantially in the form attached as Exhibit D-1 hereto prepared by the Administrator or Manager
and setting forth the information described therein (each, a “Monthly Report”). The Issuer shall
cause the Administrator or Manager to deliver to the Indenture Trustee with the Monthly Report for
each June, and the Indenture Trustee shall (or shall instruct any Paying Agent to) distribute with
the Monthly Report for each June to the Persons described in the first sentence in this Section
2.13(a), a report, substantially in the form attached as Exhibit D-2 hereto prepared by the
Administrator or Manager and setting forth the information described therein (each, an “Annual
Report”). The Indenture Trustee shall deliver, promptly upon written request, a copy of each
Monthly Report and Annual Report to any Holder or other Secured Party and, at the written request
of any Holder, to any prospective purchaser of any Equipment Notes from such Holder. If the
Equipment Notes are then listed on any stock






24









 







exchange, the Indenture Trustee also shall provide a copy of each Monthly Report and each
Annual Report to the applicable listing agent on behalf of such stock exchange.




          (b) After the end of each calendar year but not later than the latest date permitted by law,
the Administrator or Manager shall deliver to the Indenture Trustee, and the Indenture Trustee
shall (or shall instruct any Paying Agent to) furnish to each Person who at any time during such
calendar year was a Noteholder of record of any Equipment Notes, a statement (for example, a Form
1099 or any other means required by law) prepared by the Administrator or Manager containing the
sum of the amounts determined pursuant to Exhibit D-1 hereto with respect to the Equipment Notes
for such calendar year or, in the event such Person was a Noteholder of record during only a
portion of such calendar year, for the applicable portion of such calendar year, and such other
items as are readily available to the Administrator or Manager and which a Noteholder shall
reasonably request as necessary for the purpose of such Noteholder’s preparation of its U.S.
federal income or other tax returns. So long as any of the Equipment Notes are registered in the
name of DTC or its nominee, such report and such other items will be prepared on the basis of such
information supplied to the Administrator by DTC and the Direct Participants, and will be delivered
by the Indenture Trustee, when received from the Administrator or Manager, to DTC for transfer to
the applicable beneficial owners in the manner described above. In the event that any such
information has been provided by any Paying Agent directly to such Person through other tax-related
reports or otherwise, the Indenture Trustee in its capacity as Paying Agent shall not be obligated
to comply with such request for information.




          (c) At such time, if any, as the Equipment Notes are issued in the form of Definitive Notes,
the Indenture Trustee shall prepare and deliver the information described in Section 2.13(b) to
each Holder of record of a Definitive Note for the period of its ownership of such Definitive Note
as the same appears on the records of the Indenture Trustee.




          (d) Following each Payment Date and any other date specified herein for distribution of any
payments with respect to the Equipment Notes and prior to a Redemption, the Indenture Trustee shall
cause notice thereof to be given (i) by publication in such English language newspaper or
newspapers as the Indenture Trustee shall approve having a general circulation in Europe, (ii) by
either of (a) the information contained in such notice appearing on the relevant page of the
Reuters Screen or such other medium for the electronic display of data as may be approved by the
Indenture Trustee and notified to Noteholders or (b) publication in the Financial Times and The
Wall Street Journal (National Edition) or, if either newspaper shall cease to be published or
timely publication therein shall not be practicable, in such English language newspaper or
newspapers as the Indenture Trustee shall approve having a general circulation in Europe and the
United States and (iii) until such time as any Definitive Notes are issued and, so long as the
Equipment Notes are registered with DTC, Euroclear and/or Clearstream, delivery of the relevant
notice to DTC, Euroclear and/or Clearstream for communication by them to Noteholders of the
Equipment Notes. Notwithstanding the above, any notice to the Noteholders of the Equipment Notes
specifying any principal payment or any payment of premium, if any, shall be validly given by
delivery of the relevant notice to DTC, Euroclear and/or Clearstream for communication by them to
such Noteholders, without the need for publication in the in an English language newspaper
described in clause (i) of the preceding sentence. If the Equipment Notes are listed on a stock
exchange, notice specifying a Redemption






25









 







of principal of any Equipment Notes must be published in a daily newspaper of general
circulation in the jurisdiction in which such stock exchange is located for so long as the
Equipment Notes are listed on such stock exchange. Any such notice shall be deemed to have been
given on the first day on which any of such conditions shall have been met.




          (e) The Indenture Trustee shall be at liberty to sanction some other method of giving notice
to the Noteholders if, in its opinion, such other method is reasonable, having regard to the number
and identity of the Noteholders and/or to market practice then prevailing, is in the best interests
of the Noteholders and will comply with the rules of any stock exchange on which the Equipment
Notes are listed as confirmed by the listing agent for such stock exchange or such other stock
exchange (if any) on which the Equipment Notes are then listed, and any such notice shall be deemed
to have been given on such date as the Indenture Trustee may approve the same; provided that notice
of such method is given to the Noteholders in such manner as the Indenture Trustee shall require.




     Section 2.14 CUSIP, CINS AND ISIN Numbers.



     The Issuer in issuing the Equipment Notes may use “CUSIP”, “CINS”, “ISIN” or other
identification numbers (if then generally in use), and if so, the Indenture Trustee shall use CUSIP
numbers, CINS numbers, ISIN numbers or other identification numbers, as the case may be, in notices
of redemption or exchange as a convenience to Holders; provided that any such notice shall state
that no representation is made as to the correctness of such numbers either as printed on the
Equipment Notes or as contained in any notice of redemption or exchange and that reliance may be
placed only on the other identification numbers printed on the Equipment Notes; provided further,
that failure to use “CUSIP”, “CINS”, “ISIN” or other identification numbers in any notice of
redemption or exchange shall not affect the validity or sufficiency of such notice.



     Section 2.15
Debt Treatment of Equipment Notes. The parties hereto agree, and the
holders of the Equipment Notes and interests therein, by their purchase thereof shall be deemed to
have agreed, to treat the Equipment Notes as debt for U.S. federal income tax purposes.



ARTICLE III




INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS



     Section 3.01 Establishment of Indenture Accounts; Investments.



          (a) Indenture Accounts. The Administrator, on behalf and at the direction of the
Issuer, will establish with the Indenture Trustee on or before the Closing Date and maintain all of
the following accounts: (i) a collections account (the “Collections Account”), (ii) a railcar
replacement account (the “Mandatory Replacement Account”), (iii) an optional reinvestment account
(the “Optional Reinvestment Account”), (iv) an expense account (the “Expense Account”), (v) a
liquidity reserve account (the “Liquidity Reserve Account”), and (vi) for the purpose of
facilitating the Indenture Trustee’s payments to the Noteholders from funds available therefor, the Equipment Note Account. From time to time thereafter, the Administrator, on
behalf and at the direction of the Issuer, will establish with the Indenture Trustee such other






26









 








Indenture Accounts as may be authorized or required by this Indenture and the other Operative
Agreements.




          (b) All Indenture Accounts to be established on or prior to the Closing Date shall be in the
names and bear the account numbers set forth on Schedule 1 hereto. All amounts from time
to time held in each Indenture Account shall be held (a) in the name of the Indenture Trustee, for
the benefit of the Secured Parties, and (b) in the custody and under the “Control” (as such term is
defined in the UCC) of the Indenture Trustee, for the purposes and on the terms set forth in this
Indenture, and all such amounts shall constitute a part of the Collateral and shall not constitute
payment of any Secured Obligation or any other obligation of the Issuer until applied as
hereinafter provided.




          (c) Withdrawals and Transfers. The Indenture Trustee shall have sole dominion and
control over the Indenture Accounts (including, inter alia, the sole power to direct withdrawals or
transfers from the Indenture Accounts), and the Issuer shall have no right to withdraw, or to cause
the withdrawal of funds or other investments held in the Indenture Accounts or to direct the
investment of such funds or the liquidation of any Permitted Investments, in each case other than
as expressly provided herein.




          (d) Investments. For so long as any Equipment Notes remain Outstanding, the Indenture
Trustee, at the written direction of the Administrator, shall invest and reinvest the funds on
deposit in the Indenture Accounts (other than the Equipment Note Account, which shall not be
invested) in Permitted Investments; provided, however, that if an Event of Default has occurred and
is continuing, the Administrator shall have no right to direct such reinvestment and the Indenture
Trustee shall invest such amount in Indenture Investments from the time of receipt thereof until
such time as such amounts are required to be distributed pursuant to the terms of this Indenture.
In the absence of written direction delivered to the Indenture Trustee from the Administrator, the
Indenture Trustee shall invest any funds in Permitted Investments described in clause (f) of the
definition thereof. The Indenture Trustee shall make such investments and reinvestments in
accordance with the terms of the following provisions:





          (i) the Permitted Investments shall have maturities and other terms such that
sufficient funds shall be available to make required payments pursuant to this Indenture on
the Business Day immediately preceding the first Payment Date after which such investment is
made, in the case of investments of funds on deposit in the Collections Account; and




          (ii) if any funds to be invested are not received in the Indenture Accounts by noon,
New York City time, on any Business Day, such funds shall, if possible, be invested in
overnight Permitted Investments.



          (e) Earnings. Earnings on investments of funds in the Indenture Accounts shall be
deposited in the Collections Account when received and credited as Collections for the Collection
Period when so received.




          (f) WTC as Securities Intermediary; Control.




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          (i) WTC shall act as the “securities intermediary” (within the meaning of the UCC) in
respect of all securities and other property credited to the Indenture Accounts.




          (ii) WTC as securities intermediary agrees with the parties hereto that each Indenture
Account shall be an account to which financial assets (within the meaning of the UCC) may be
credited and undertake to treat the Indenture Trustee as entitled to exercise rights that
comprise such financial assets. WTC as securities intermediary agrees with the parties
hereto that each item of property credited to each Indenture Account shall be treated as
such a financial asset. WTC as securities intermediary acknowledges that the “securities
intermediary’s jurisdiction” as defined in the UCC with respect to the Collateral, shall be
the State of New York. WTC as securities intermediary represents and covenants that it is
not and will not be (as long as it is acting as securities intermediary hereunder) a party
to any agreement in respect of the Collateral that is inconsistent with the provisions of
this Indenture. WTC as securities intermediary agrees that any item of property credited to
any Indenture Account shall not be subject to any security interest, lien, or right of
setoff in favor of the securities intermediary or anyone claiming through the securities
intermediary (other than the Indenture Trustee).




          (iii) It is the intent of the Indenture Trustee and the Issuer that each Indenture
Account shall be a securities account of the Indenture Trustee and not an account of the
Issuer. Nonetheless, WTC as securities intermediary agrees that it will comply with
entitlement orders originated by the Indenture Trustee without further consent by the
Issuer. WTC as securities intermediary hereby further covenants that it will not agree with
any person or entity (other than the Indenture Trustee) that it will comply with entitlement
orders originated by such person or entity.




          (iv) Nothing herein shall imply or impose upon WTC as securities intermediary any duty
or obligations other than those expressly set forth herein and those applicable to a
securities intermediary under the UCC (and WTC as securities intermediary hereunder shall be
entitled to all of the protections available to a securities intermediary under the UCC).
Without limiting the foregoing, nothing herein shall imply or impose upon WTC as securities
intermediary any duties of a fiduciary nature (but not in limitation of any such duties of
the Indenture Trustee hereunder).




          (v) WTC as securities intermediary hereby represents and warrants and agrees with the
Issuer and for the benefit of the Indenture Trustee as follows:




          (A) With respect to Permitted Investments and Indenture Investments that are
book entry securities, such Permitted Investments and
Indenture Investments have been credited to the Indenture Trustee’s securities
account by accurate book entry.




          (B) The securities intermediary shall not accept entitlement orders from any
other person except as authorized by the Indenture Trustee.



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          (C) To the extent determined by the actions of WTC as securities intermediary,
the Indenture Trustee shall at all times have “control” (as defined in Section
8-106 of the UCC) over the securities account and the Permitted Investments and
Indenture Investments that are book entry securities.




          (D) WTC as securities intermediary has received no notice of, and has no
knowledge of any “adverse claim” (as such term is defined in the UCC) as to the
Collateral.




          (E) WTC as securities intermediary waives any lien, claim or encumbrance in
favor of the securities intermediary in the Collateral.




          (F) WTC as securities intermediary is a “securities intermediary” as such term
is defined in Section 8-102(a)(14) of the UCC and in the ordinary course of its
business maintains “securities accounts” for others, as such terms are used in
Section 8-501 of the UCC and as securities intermediary will be acting in such
capacity hereunder.




          (G) WTC as securities intermediary is not a “clearing corporation,” as such
term is defined in Section 8-102(a)(5) of the UCC.




          (vi) Each of the Issuer and the Indenture Trustee hereby agrees and acknowledges that
WTC as securities intermediary, for the benefit of the Indenture Trustee and the Secured
Parties, shall have “control” over each Indenture Account under and for purposes of Section
9-104(a)(1) of the UCC.



          (g) Investment Disclosure. The Issuer and the Noteholders, by their acceptance of the
Equipment Notes or their interests therein, acknowledge that shares or investments in Permitted
Investments or Indenture Investments are not obligations of Wilmington Trust Company, or any parent
or affiliate of Wilmington Trust Company, are not deposits and are not insured by the FDIC. The
Indenture Trustee or its affiliate may be compensated by mutual funds or other investments
comprising Permitted Investments or Indenture Investments for services rendered in its capacity as
investment advisor, or other service provider, and such compensation is both described in detail in
the prospectuses for such funds or investments, and is in addition to the compensation, if any,
paid to Wilmington Trust Company in its capacity as Indenture Trustee hereunder. The Issuer and
Noteholders agree that the Indenture Trustee shall not be responsible for any losses or diminution
in the value of the Indenture Accounts occurring as a result of the investment of funds in the
Indenture Accounts in accordance with the terms hereof.




     Section 3.02 Collections Account.



          (a) Pursuant to and in accordance with the terms of the Account Administration Agreement, the
Account Collateral Agent is to, upon receipt thereof, deposit in the Customer Payment Account the
Collections received by it. Pursuant to and subject to the terms of the Account Administration
Agreement, on each Business Day all amounts constituting Collections on deposit in the Customer
Payment Account are to be transferred by the Account Collateral Agent to the Collections Account.



29









 







          (b) The Indenture Trustee shall, upon receipt thereof, deposit in the Collections Account all
Collections and all other payments received by it in connection with the Portfolio.




          (c) Additional funds may be deposited into the Collections Account from the Liquidity Reserve
Account in accordance with Section 3.04, the Optional Reinvestment Account in accordance with
Section 3.05 and the Mandatory Replacement Account in accordance with Section 3.09.




          (d) All or any portion of any Net Disposition Proceeds from an Involuntary Railcar Disposition
received in the Collections Account may be transferred to the Optional Reinvestment Account, to the
extent that the Issuer elects to reinvest all or a portion of such Net Disposition Proceeds in a
Replacement Exchange in accordance with Section 3.09 hereof. All of the transfers of funds
described in this Section 3.02 will be made prior to the distribution of the Available Collections
Amount pursuant to Section 3.11.




     Section 3.03 Withdrawal upon an Event of Default.



     After the occurrence of and during the continuance of an Event of Default, at the Direction of
the Requisite Majority, the Indenture Trustee shall withdraw any or all funds then on deposit in
any of the Indenture Accounts (other than the Equipment Note Account) and transfer such funds to
the Collections Account for application on the next upcoming Payment Date in accordance with the
Flow of Funds.



     Section 3.04 Liquidity Reserve Account.



          (a) On the Closing Date, the Issuer shall deposit (or cause to be deposited) in the Liquidity
Reserve Account, cash in an amount equal to the Liquidity Reserve Target Amount as of the Closing
Date out of the Net Proceeds of the issuance of the Equipment Notes received on the Closing Date
and/or from funds contributed by the Member to the Issuer as equity on or prior to such date.




          (b) On each Payment Date on which the Available Collections Amount is to be distributed
pursuant to the Flow of Funds, if the Balance in the Liquidity Reserve Account is less than the
Liquidity Reserve Target Amount as of such Payment Date, the Indenture Trustee shall, in accordance
with the Payment Date Schedule delivered pursuant to Section 3.10(e) hereof, deposit funds into the
Liquidity Reserve Account in order to restore the Balance therein to the Liquidity Reserve Target
Amount as of such Payment Date, to the extent of the Available Collections Amount as provided in
the Flow of Funds.




          (c) For each Payment Date on which there will be a Stated Interest Shortfall (as defined in
Section 3.10(d)(i)) in respect of the Equipment Notes, the Indenture Trustee shall, in accordance
with the Payment Date Schedule delivered pursuant to Section 3.10(e) hereof, withdraw from the
Liquidity Reserve Account and deposit in the Collections Account, for allocation as part of
Available Collections on the related Payment Date, an amount equal to the lesser of (i) the
aggregate amount of such Stated Interest Shortfall for the Equipment Notes and (ii) the Balance in
the Liquidity Reserve Account. The excess of the Stated Interest Shortfall over the Balance so
allocated that remains available to pay Stated Interest after allocation of the



30









 






Available
Collections Amount to items senior to Stated Interest in the Flow of Funds shall be the “Net Stated
Interest Shortfall” for the Equipment Notes and shall be added to the Stated Interest Amount for
the next succeeding Payment Date.




          (d) On each Payment Date on which the Available Collections Amount is to be distributed
pursuant to the Flow of Funds, before making any distributions pursuant thereto, the Indenture
Trustee, in accordance with the Payment Date Schedule delivered pursuant to Section 3.10(e) hereof,
shall deposit in the Collections Account the excess, if any, of (A) the Balance in the Liquidity
Reserve Account (after giving effect to any withdrawals therefrom to be made on such Payment Date
pursuant to Section 3.04(c)) over (B) the Liquidity Reserve Target Amount (determined after giving
effect to any payments of principal on Equipment Notes to be made on such Payment Date).




          (e) On the Final Maturity Date, the Balance in the Liquidity Reserve Account (after giving
effect to any withdrawals therefrom on such date pursuant to Section 3.04(c)) shall be deposited
into the Collections Account for allocation pursuant to the Flow of Funds.




          (f) The Issuer may attempt to procure a reduction in the amount of the Liquidity Reserve
Target Amount from time to time, subject to obtaining a Rating Agency Confirmation and receiving
the prior written consent of the Indenture Trustee (to be given only at the Direction of the
Requisite Majority), following which the Liquidity Reserve Target Amount shall be the amount as so
reduced.




     Section 3.05 Optional Reinvestment Account.



          (a) The Issuer may elect, by notice to the Indenture Trustee in writing, not later than the
last Business Day preceding the later of the date of any Involuntary Railcar Disposition or
Purchase Option Disposition and the date on which the Net Disposition Proceeds therefrom are
received, to deposit all or a portion of the Net Disposition Proceeds realized from such
Involuntary Railcar Disposition or Purchase Option Disposition, whether or not initially deposited
in the Collections Account, into the Optional Reinvestment Account. The Indenture Trustee shall
deposit in the Collections Account all or any portion of the Net Disposition Proceeds realized from
any Involuntary Railcar Disposition or Purchase Option Disposition as to which the direction
described in the preceding sentence is not received by the end of the last Business Day preceding
the later of the date of any such Involuntary Railcar Disposition or Purchase Option Disposition
and the date on which such Net Disposition Proceeds are received.




          (b) The Issuer may elect to apply the Net Disposition Proceeds from an Involuntary Railcar
Disposition or Purchase Option Disposition deposited in the Optional
Reinvestment Account pursuant to Section 3.05(a) in a Permitted Railcar Acquisition any time
during the related Replacement Period. On each Delivery Date during the Replacement Period on
which the Issuer acquires an Additional Railcar from a Seller in a Permitted Railcar Acquisition,
the Indenture Trustee, at the written direction of the Manager accompanied by a written statement
of the Manager that all of the conditions for payment of the Purchase Price for such Additional
Railcar specified in the Asset Transfer Agreement have been satisfied, and that the requirements of
Section 5.03(b) or 5.03(c), as applicable, have been satisfied, will transfer




31









 







funds in an amount
equal to the Purchase Price for such Additional Railcar from the Optional Reinvestment Account to
the applicable Seller.




          (c) The Indenture Trustee, without further direction from the Manager or the Administrator,
shall transfer any amounts in the Optional Reinvestment Account at the end of the Replacement
Period applicable to the Involuntary Railcar Disposition or Purchase Option Disposition to the
Collections Account on the next Business Day after the end of such Replacement Period (or, if
notified by the Manager in writing prior to such date that the Issuer no longer intends to effect a
related Permitted Railcar Acquisition with such funds or only intends to apply a portion of such
funds for such purpose, then the Indenture Trustee shall, as directed in such written notice,
transfer the amount of such funds not intended to be so used to the Collections Account as promptly
as practicable following receipt of such written notice). All amounts so transferred to the
Collections Account may not be withdrawn therefrom pursuant to Section 3.09(a) or otherwise, except
for distribution in accordance with the Flow of Funds.




     Section 3.06 Expense Account.



          (a) On the Closing Date, the Administrator shall direct the Indenture Trustee in writing to
(i) pay to such Persons as shall be specified by the Administrator such Issuance Expenses as shall
be due and payable in connection with the issuance and sale of the Equipment Notes on the Closing
Date, and (ii) transfer to the Expense Account the Required Expense Deposit, in each case out of
the Net Proceeds of the Equipment Notes issued on the Closing Date or the proceeds of a capital
contribution by the Member to the Issuer or from any combination thereof.




          (b) On each Payment Date, the Administrator will, in accordance with the priority of payments
set forth in the Flow of Funds, direct the Indenture Trustee, in writing, to pay any Operating
Expenses that are due and payable on such Payment Date and to transfer to the Expense Account funds
in an amount equal to the Required Expense Deposit.




          (c) On any Business Day between Payment Dates, the Administrator may direct the Indenture
Trustee, in writing, to withdraw funds from the Expense Account in order to pay any Operating
Expenses that the Administrator certifies in such writing are an Operating Expense then due and
payable.




          (d) On the Final Maturity Date, after payment of all Operating Expenses due on such Final
Maturity Date, the Indenture Trustee shall transfer the Balance in the Expense Account to the
Collections Account for distribution in accordance with the Flow of Funds.




     Section 3.07 Equipment Note Account.



          (a) Upon the issuance of the Equipment Notes on the Closing Date, the Indenture Trustee shall
establish the Equipment Note Account for the Equipment Notes.




          (b) On each Payment Date, amounts will be deposited into the Equipment Note Account in
accordance with Section 3.08 and Section 3.11 hereof.



32









 







          (c) All amounts transferred to the Equipment Note Account in accordance with Section 3.08 and
Section 3.11 hereof shall be used by the Indenture Trustee for the payment of the Equipment Notes
in accordance with their terms.




     Section 3.08 Redemption/Defeasance Account.



          (a) Upon the sending of a Redemption Notice in respect of the Equipment Notes, or an election
by the Issuer to effect a legal defeasance or covenant defeasance of the Equipment Notes pursuant
to Article XII hereof, the Indenture Trustee will establish a Redemption/Defeasance Account to
retain the proceeds to be used in order to redeem or defease the Equipment Notes.




          (b) Amounts shall be deposited into any Redemption/Defeasance Account in accordance with
Sections 3.12 and 3.13 hereof.




          (c) On each Redemption Date, the Administrator, on behalf of the Indenture Trustee, shall
transfer a portion of the proceeds of any Redemption of the Equipment Notes equal to the Redemption
Price of the Equipment Notes from the Redemption/Defeasance Account, established in respect of such
Redemption to the Equipment Note Account in accordance with Sections 3.12 and 3.13 hereof and
transfer the balance of such proceeds to the Expense Account.




          (d) On each Payment Date, in respect of Equipment Notes that are the subject of a legal
defeasance or covenant defeasance, the Administrator, on behalf of the Indenture Trustee, shall
transfer from the Redemption/Defeasance Account to the Holders of such Equipment Notes the payments
of principal and interest due on such Equipment Notes in accordance with the terms of such
defeasance.




     Section 3.09 Mandatory Replacement Account.



          (a) The Issuer will direct the Manager or Administrator to cause the deposit of all Net
Disposition Proceeds realized from a Permitted Discretionary Sale, whether or not initially
deposited into the Collections Account, into the Mandatory Replacement Account.




          (b) The Issuer shall use all commercially reasonable efforts to use the funds deposited in the
Mandatory Replacement Account to purchase Additional Railcars from Sellers in Permitted Railcar
Acquisitions during the applicable Replacement Periods with respect to the Net Disposition Proceeds
constituting such funds. The Indenture Trustee, at the written direction of the Manager or
Administrator accompanied by a written statement of the Manager or Administrator on behalf of the
Issuer that all of the conditions for payment of the Purchase Price for such Additional Railcar
specified in the Asset Transfer Agreement have been satisfied and
that the applicable requirements of Section 5.03 have been satisfied, will transfer funds in
an amount equal to the Purchase Price for such Additional Railcar to the applicable Seller.




          (c) The Indenture Trustee, without further direction from the Manager or the Administrator,
shall transfer any amounts in the Mandatory Replacement Account at the end of the Replacement
Period applicable to the Permitted Discretionary Sale to the Collections Account on the next
Business Day after the end of such Replacement Period. All amounts so




33









 







transferred to the
Collections Account may not be withdrawn therefrom pursuant to Section 3.09(a) or otherwise, except
for distribution in accordance with the Flow of Funds.




     Section 3.10 Calculations.



          (a) As soon as reasonably practicable after each Determination Date, but in no event later
than 12:00 noon (New York City time) on the third Business Day prior to the immediately succeeding
Payment Date, the Issuer shall cause the Administrator, based on information known to it or
Relevant Information provided to it, to determine the amount of Collections received during the
Collection Period ending immediately prior to such Determination Date (including the amount of any
investment earnings on the Balances in the Collections Account, if any, as of such Determination
Date) and shall calculate the following amounts:





          (i) (A) the Balances in each of the Indenture Accounts on such Determination Date, and
(B) the amount of investment earnings (net of losses and investment expenses), if any, on
investments of funds on deposit therein during such Collection Period;




          (ii) (A) the Required Expense Amount for such Payment Date and (B) the excess, if any,
of the Required Expense Reserve for such Payment Date over the Balance in the Expense
Account after payment of all Operating Expenses on such Payment Date (the “Required Expense
Deposit”);




          (iii) the Available Collections Amount for such Payment Date, net of the amounts
described in Section 4.02(c)(i) if an Event of Default has occurred and is continuing on
such Payment Date;




          (iv) the Stated Interest Shortfall (if any), the amounts (if any) required to be
transferred from the Liquidity Reserve Account to the Collections Account in respect thereof
pursuant to Section 3.04, and the Net Stated Interest Shortfall (if any);




          (v) all other amounts required to be reported in the Monthly Report and not included on
the Payment Date Schedule to be provided pursuant to Section 3.10(e); and




          (vi) any other information, determinations and calculations reasonably required in
order to give effect to the terms of this Indenture and the Operative Agreements, including
the preparation of the Monthly Report and Annual Report.


provided that, if the Administrator has not received all of the Relevant Information for such
Payment Date, the Administrator shall make reasonable assumptions for purposes of the calculations
contemplated by this Section 3.10.




     (b) Calculation of Interest Amounts, etc. Not later than 12:00 noon (New York City
time) on the third Business Day prior to each Payment Date, the Issuer shall cause the
Administrator or the Manager to make the following calculations or determinations with respect to
interest amounts due on such Payment Date:



34









 






          (i) the Stated Interest Amount for the Equipment Notes; and




          (ii) the Additional Interest Amount, if any.



          (c) Calculation of Principal Payments and Distributions to the Issuer. Not later than
12:00 noon (New York City time) on the third Business Day prior to each Payment Date, the Issuer
shall cause the Administrator or the Manager to calculate or determine the following with respect
to principal payments on the Equipment Notes due on such Payment Date and the amounts distributable
to the Issuer on such Payment Date:





          (i) the Outstanding Principal Balance of the Equipment Notes on such Payment Date
immediately prior to any principal payment on such date;




          (ii) the amounts of the principal payments, if any, to be made in respect of the
Equipment Notes on such Payment Date, including, the Scheduled Principal Payment Amount for
such Payment Date; and




          (iii) the amounts, if any, distributable to the Issuer on such Payment Date.



          (d) Calculation of Payment Date Shortfalls. Not later than 12:00 noon (New York City
time) on the third Business Day prior to each Payment Date, the Issuer shall cause the
Administrator or the Manager to perform the calculations necessary to determine the following:





          (i) the amount, if any, by which the Stated Interest Amount due in respect of the
Equipment Notes on such Payment Date exceeds the Available Collections Amount for such
Payment Date remaining after payment in full of all amounts senior thereto in the Flow of
Funds but prior to giving effect to any transfer of funds to the Collection Account from the
Liquidity Reserve Account pursuant to Section 3.04 (a “Stated Interest Shortfall” in respect
of the Equipment Notes);




          (ii) the Net Stated Interest Shortfall in respect of the Equipment Notes;




          (iii) the amount, if any, of the Scheduled Principal Payment Amount payable on the
Equipment Notes that will not be paid on such Payment Date out of the Available Collections
Amount for such Payment Date; and




          (iv) if such Payment Date is the Final Maturity Date, the amount, if any, by which the
Outstanding Principal Balance of the Equipment Notes exceeds the Available Collections
Amount after payment in full of amounts senior thereto in the Flow of Funds (such remainder,
a “Final Principal Payment Shortfall”).



          (e) Application of the Available Collections Amount. Not later than 1:00 p.m., New
York City time, three Business Days prior to each Payment Date, the Issuer will cause the
Administrator (after consultation with the Manager), to prepare and deliver to the Indenture
Trustee the Payment Date Schedule setting forth the payments, transfers, deposits and




35









 







distributions
to be made in respect of the Liquidity Reserve Account pursuant to Section 3.04, and in respect of
the Available Collections Amount (after giving effect to such Liquidity Reserve Account transfers,
if any) pursuant to the Flow of Funds, and setting forth separately, in the case of payments in
respect of the Equipment Notes, the amount to be applied on such Payment Date to pay all interest,
principal and premium, if any, on the Equipment Notes, all in accordance with Section 3.11. On
each Payment Date, the Indenture Trustee, based on the Payment Date Schedule provided by the
Administrator for such Payment Date, will make payments, transfers, deposits and distributions in
an aggregate amount equal to the Available Collections Amount in accordance with the order of
priority set forth in the Flow of Funds. If the Indenture Trustee shall not have received such
Payment Date Schedule by the last Business Day preceding any Payment Date, such Payment Date shall
be deferred until the next Business Day after such Payment Date Schedule is received by the
Indenture Trustee.




          (f) Relevant Information. The Issuer shall cause each Service Provider having
Relevant Information in its possession to make such Relevant Information available to the
Administrator and the Manager not later than 1:00 p.m., New York City time, at least five Business
Days prior to each Payment Date.




     Section 3.11 Payment Date Distributions from the Collections Account.



          (a) Regular Distributions. On each Payment Date, so long as no Event of Default has
occurred and is continuing, after the withdrawals and transfers provided for in Section 3.02 have
been made, the Available Collections Amount will be applied in the following order of priority, and
in each case after the payment of any related Railroad Mileage Credit reimbursements:





	 	(1)	 	to the payment of the portion of the Required
Expense Amount described in clause (i) of the definition thereof to the
applicable payees, and to the Expense Account an amount equal to the
Required Expense Deposit;
	 
	 	(2)	 	to the payment to the Service Providers of the
Service Provider Fees;
	 
	 	(3)	 	to the repayment of any outstanding Manager
Advances (together with interest thereon as provided in the Management
Agreement);
	 
	 	(4)	 	to the Equipment Note Account for further
payment by the Indenture Trustee to the Noteholders, the Stated
Interest Amount;
	 
	 	(5)	 	to the Liquidity Reserve Account in an amount
equal to the positive difference (if any) between (i) the Liquidity
Reserve Target Amount and (ii) the balance in the Liquidity Reserve
Account;
	 
	 	(6)	 	to the Equipment Note Account for further
payment by the Indenture Trustee to the Noteholders, the Scheduled
Principal Payment Amount;




36









 












	 	(7)	 	to the Equipment Note Account for further
payment by the Indenture Trustee to the Noteholders, the Additional
Interest Amount;
	 
	 	(8)	 	to the Equipment Note Account for further
payment by the Indenture Trustee to the Noteholders, the amount of any
redemption or early prepayment premium owing to the Holders;
	 
	 	(9)	 	if an Early Amortization Event shall have
occurred and be continuing, to the Equipment Note Account for further
payment by the Indenture Trustee to the Noteholders, an amount equal to
the then Outstanding Principal Balance of the Equipment Notes;
	 
	 	(10)	 	to the payment of any indemnities of the Issuer
payable to the Purchaser;
	 
	 	(11)	 	to pay or reimburse the Issuer (or the Manager
on its behalf) for costs of Optional Modifications to the extent not
paid from any other available source of revenues of the Issuer; and
	 
	 	(12)	 	to the Issuer, all remaining amounts, which may
be distributed to the Member.





          (b) Event of Default Distributions. On each Payment Date, if an Event of Default has
occurred and is then continuing, the Available Collections Amount will be applied in the following
order or priority, after payment of the amounts described in Section 4.02(c)(i), and in each case
after the payment of any related Railroad Mileage Credit reimbursements:





	 	(1)	 	to the payment of the portion of the Required
Expense Amount described in clause (i) of the definition thereof to the
applicable
payees, and to the Expense Account an amount equal to the Required
Expense Deposit;
	 
	 	(2)	 	to the payment to the Service Providers of the
Service Provider Fees;
	 
	 	(3)	 	to the repayment of any outstanding Manager
Advances (together with interest thereon as provided in the Management
Agreement);
	 
	 	(4)	 	to the Equipment Note Account for further
payment by the Indenture Trustee to the Noteholders, the Stated
Interest Amount;
	 
	 	(5)	 	to the Equipment Note Account for further
payment by the Indenture Trustee to the Noteholders, an amount equal to
the then Outstanding Principal Balance of the Equipment Notes;




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	 	(6)	 	to the Equipment Note Account for further
payment by the Indenture Trustee to the Noteholders, the Additional
Interest Amount;
	 
	 	(7)	 	to the Equipment Note Account for further
payment by the Indenture Trustee to the Noteholders, the amount of any
redemption or early prepayment premium owing to the Holders;
	 
	 	(8)	 	to the payment of indemnities of the Issuer
payable to the Purchaser;
	 
	 	(9)	 	to pay or reimburse the Issuer (or the Manager
on its behalf) for costs of Optional Modifications to the extent not
paid from any other available source of revenues of the Issuer; and
	 
	 	(10)	 	to the Issuer, all remaining amounts, which may
be distributed to the Member.





          (c) Redemption.




     On any Payment Date on which the Equipment Notes are to be the subject of a Redemption, the
Administrator, on behalf of the Indenture Trustee, shall distribute the amounts in the applicable
Redemption/Defeasance Account to the Holders of the Equipment Notes as provided in the relevant
Redemption Notice.



          (d) Payments by Wire Transfer.



     All payments to be made pursuant to this Section 3.11 to Persons other than Noteholders shall
be made through a direct transfer of funds to the applicable Person or Indenture Account. All
payments to Noteholders shall be governed by Section 2.05.



     Section 3.12 Voluntary Redemptions.



     If no Event of Default then exists, the Issuer will have the option to prepay, in whole or in
part (and if in part, in a minimum amount of at least $5,000,000 and integral multiples of
$1,000,000 in excess thereof), the Outstanding Principal Balance of the Equipment Notes in an
Optional Redemption; provided, that no Optional Redemption other than in whole shall occur once the
15th anniversary of the Closing Date has occurred, or if as of the proposed date of any
such Optional Redemption, there shall exist any shortfall in the payment of Scheduled Principal
Payment Amount determined as of such date. If an Event of Default then exists, the Issuer will
have the option to prepay, in whole only, the Outstanding Principal Balance of the Equipment Notes.
It is understood that Optional Redemptions do not effect a release of Collateral from the Security
Interest of this Indenture, unless resulting in the repayment of all Secured Obligations in full.



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     Section 3.13 Procedure for Redemptions.



          (a) Method of Redemption. In the case of any Redemption, the Issuer will deposit, or
will cause to be deposited, in the Redemption/Defeasance Account an amount equal to the Redemption
Price of the Equipment Notes or portion thereof to be redeemed. Once a Redemption Notice in
respect of a Redemption is published, the applicable outstanding principal amount of the Equipment
Notes to which such Redemption Notice applies will become due and payable on the Redemption Date
stated in such Redemption Notice at its Redemption Price. All Equipment Notes that are redeemed in
full will be surrendered to the Indenture Trustee for cancellation and accordingly may not be
reissued or resold.




          (b) Deposit of Redemption Amount. On or before any Redemption Date in respect of a
Redemption under Section 3.12, the Issuer shall, to the extent an amount equal to the Redemption
Price of the Equipment Notes to be redeemed and any transaction expenses as of the Redemption Date
is not then held by the Issuer or on deposit in the Redemption/Defeasance Account, deposit or cause
to be deposited such amount in the Redemption/Defeasance Account.




          (c) Equipment Notes Payable on Redemption Date. After notice has been given under
Section 3.13(d) hereof as to the Redemption Date in respect of any Redemption, the Outstanding
Principal Balance of the Equipment Notes to be redeemed on such Redemption Date in the amount
identified in such notice shall become due and payable at the Corporate Trust Office of the
Indenture Trustee, and from and after such Redemption Date (unless there shall be a default in the
payment of the applicable amount to be redeemed) such principal amount shall cease to bear
interest. Upon surrender of any Equipment Note for Redemption in accordance with such notice, the
Redemption Price of such Equipment Note shall be paid as provided for in Section 3.11(d). If any
Equipment Note to be redeemed shall not be so paid, or shall only be paid in part in accordance
with the terms of such notice, the remaining Outstanding Principal Balance thereof shall continue
to bear interest from the Redemption Date until paid at the interest rate applicable to such
Equipment Note.




          (d) Redemption Notice. In respect of any Redemption of the Equipment Notes to be made
out of amounts available for such purposes, the Indenture Trustee will give a Redemption Notice to
each holder of the Equipment Notes to be redeemed, provided that the Indenture Trustee shall have
determined in advance of giving any such Redemption Notice that funds are or will, on the
Redemption Date, be available therefor. Such Redemption Notice will
be given at least twenty (20) days but not more than sixty (60) days before such Redemption
Date. Each Redemption Notice will state (i) the applicable Redemption Date, (ii) if a Redemption
in part, the portion of the Outstanding Principal Balance of the Equipment Notes that is to be
redeemed (and in respect thereof, the Redemption Price will be distributed to the Holders pro rata
in the same manner as partial repayments of principal on the Equipment Notes made pursuant to the
Flow of Funds and the Indenture Trustee’s notice shall contain information to that effect), (iii)
the Indenture Trustee’s arrangements for making payments due on the Redemption Date, (iv) the
Redemption Price of the Equipment Notes to be redeemed, (v) for an Optional Redemption in whole,
that the Equipment Notes to be redeemed must be surrendered (which action may be taken by any
Holder of the Equipment Notes or its authorized agent) to the Indenture Trustee to collect the
Redemption Price on such Equipment Notes and (vi) that, unless the Issuer defaults in the payment
of the Redemption Price, if any, interest on the portion of the




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Outstanding Principal Balance of
the Equipment Notes called for Redemption will cease to accrue on and after the Redemption Date.




     Section 3.14 Adjustments in Targeted Principal Balances.



          (a) Railcar Dispositions. If Net Disposition Proceeds have been included in the
Available Collections Amount on any Payment Date, then the Scheduled Targeted Principal Balance of
the Equipment Notes for such Payment Date and for all subsequent Payment Dates will be equal to the
product of (a) the Scheduled Adjustment Fraction for the Equipment Notes as of each such Payment
Date and (b) the Scheduled Targeted Principal Balance of the Equipment Notes for each such Payment
Date, as adjusted for Optional Redemptions as provided in Section 3.14(b) below but without giving
effect to any previous adjustments made to such Scheduled Targeted Principal Balance pursuant to
this Section 3.14(a).




          (b) Optional Redemption. In connection with any Optional Redemption in part, the
Scheduled Targeted Principal Balance for the Equipment Notes being redeemed on the applicable
Redemption Date shall be reduced on the Redemption Date and each subsequent Payment Date by the
product of (i) the Redemption Fraction and (ii) the Scheduled Targeted Principal Balance that
existed for the Redemption Date or such subsequent Payment Date, as the case may be, immediately
prior to such Optional Redemption.



As used above:




     “Redemption Fraction” means, for the Equipment Notes being subjected to an Optional
Redemption, a fraction, the numerator of which is the principal amount of the Equipment Notes that
is being prepaid in connection with such Optional Redemption and the denominator of which is the
Outstanding Principal Balance immediately prior to such Optional Redemption.



ARTICLE IV




DEFAULT AND REMEDIES



     Section 4.01 Events of Default.



     Each of the following events shall constitute an “Event of Default” hereunder, and each such
Event of Default shall be deemed to exist and continue so long as, but only so long as, it shall
not have been remedied:



          (a) failure to pay interest on the Equipment Notes then outstanding (other than Additional
Interest, if any), in each case when such amount becomes due and payable, and such default
continues for a period of five (5) or more Business Days;




          (b) failure to make payment in full in cash of the then Outstanding Principal Balance of the
Equipment Notes thereof by the Final Maturity Date;



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     (c) failure to pay any amount (other than a payment default for which provision is made in
clause (a) or (b) of this Section 4.01) when due and payable in connection with the Equipment
Notes, to the extent that there are, on any Payment Date, amounts available in the Collections
Account or the Liquidity Reserve Account therefor, or, with respect to any amounts deposited in the
Optional Reinvestment Account or the Mandatory Replacement Account, the failure to apply such
amounts or to transfer such amounts to the Collections Account, as the case may be, in accordance
with Section 3.05 and 3.09, and in any such case such default continues for a period of five (5) or
more Business Days after such Payment Date;



     (d) failure by the Issuer, TRLWT or TILC (in the case of TRLWT and TILC, in respect of
Operative Agreements to which either is a party other than any Operative Agreement that is
described in clause (k), (n) or (p) below) to comply with any of the other covenants, obligations,
conditions or provisions binding on it under this Indenture, the Equipment Notes or any other
Operative Agreement to which it is a party (and other than a payment default for which provision is
made in clause (a), (b) or (c) of this Section 4.01, or a default addressed in clause (m) or (q)
below), if any such failure continues for a period of thirty (30) days or more after written notice
thereof has been given to the Issuer (or, if such failure is capable of remedy and the
Administrator has promptly provided the Indenture Trustee with a certificate stating that the
Issuer, TRLWT or TILC (as applicable) has commenced, or will promptly commence, and diligently
pursue all reasonable efforts to remedy such failure or breach, so long as such Person is
diligently pursuing such remedy, but in any event no longer than sixty (60) days) after the giving
of such written notice;



     (e) any representation or warranty made by the Issuer under this Indenture or any other
Operative Agreement to which it is a party or certificate delivered by it shall prove to be untrue
or incorrect in any material respect when made, and such untruth or incorrectness, if curable,
shall continue unremedied for a period of thirty (30) days or more after written notice thereof has
been given to the Issuer (or, if such untruth or incorrectness is capable of remedy and the
Administrator has promptly provided the Indenture Trustee with a certificate stating that the
Issuer has commenced, or will promptly commence, and diligently pursue all reasonable efforts
to remedy such untruth or incorrectness, so long as such Person is diligently pursuing such
remedy but in any event no longer than sixty (60) days);



     (f) a court having jurisdiction in respect of the Issuer enters a decree or order for (i)
relief in respect of the Issuer under any Applicable Law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other
similar law now or hereafter in effect; (ii) appointment of a receiver, liquidator, examiner,
assignee, custodian, trustee, sequestrator or similar official of the Issuer; or (iii) the winding
up or liquidation of the affairs of the Issuer and, in each case, such decree or order shall remain
unstayed or such writ or other process shall not have been stayed or dismissed within sixty (60)
days from entry thereof;



     (g) the Issuer (i) commences a voluntary case under any Applicable Law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors
or other similar law now or hereafter in effect, or consents to the entry of an order for relief in
any involuntary case under any such law; (ii) consents to the appointment of or taking possession
by a receiver, liquidator, examiner, assignee, custodian,



41









 




trustee, sequestrator or similar official
of the Issuer or for all or substantially all of the property and assets of the Issuer; or (iii)
effects any general assignment for the benefit of creditors, admits in writing its inability to pay
its debts generally as they come due, voluntarily suspends payment of its obligations or becomes
insolvent;




          (h) a judgment or order for the payment of money in excess of $1,000,000 shall be rendered
against the Issuer and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of ten (10) consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; provided, however, that any such judgment or order shall not be an Event of
Default under this Section 4.01(h) if and for so long as (x) the amount of such judgment or order
is covered by a valid and binding policy of insurance between the defendant and the insurer
covering payment thereof and (y) such insurer, which shall be rated at least “A” by A.M. Best
Company or any similar successor entity, has been notified of, and has not disputed the claim made
for payment of, the amount of such judgment or order;




          (i) the Issuer is required to register as an investment company under the Investment Company
Act of 1940, as amended;




          (j) the Issuer shall have asserted that this Indenture or any of the other Operative
Agreements to which it is a party is not valid and binding on the parties thereto or any court,
governmental authority or agency having jurisdiction over any of the parties to such agreements
shall find or rule that any material provision of any of such agreements is not valid or binding on
the parties thereto;




          (k) the Trustee, acting at the Direction of a Requisite Majority, shall have elected to remove
the Manager as a result of a Manager Termination Event (or to remove the Administrator in
accordance with the provisions of the Administrative Services Agreement providing for such rights
of removal), and a replacement Manager (or Administrator, as the case
may be) shall not have assumed the duties of the Manager (or Administrator, as the case may
be) within one hundred eighty (180) days after the date of such election;




          (l) as of any Payment Date, the Outstanding Principal Balance of the Equipment Notes exceeds
the Aggregate Adjusted Borrowing Value as of such date (and giving effect to repayments of
principal to occur on such date);




          (m) the Issuer shall use or permit the use of the Portfolio Railcars or any portion thereof in
a way that is not permitted by Section 5.04(v) of this Indenture, provided that such unauthorized
use shall not constitute an Event of Default for a period of 45 days after the Issuer’s obtaining
actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful
action of the Issuer and (ii) such unauthorized use is capable of being cured and the Issuer
diligently pursues such cure throughout such 45-day period;




          (n) TILC (or any successor thereto in its capacity as Servicer) shall have defaulted in any
material respect in the performance of any of its obligations under the Servicing Agreement or a
default shall occur under Section 6(a) of the Account Administration Agreement,




42









 







and, in each case,
the Issuer shall have failed to exercise its rights thereunder in respect of such default for a
period of 30 days after receipt by the Issuer of written notice from the Indenture Trustee,
demanding that such action be taken;




          (o) Trinity shall have defaulted (x) in the payment of any amounts required to be paid by it
under the Parent Undertaking Agreement, or (y) in any material respect in the performance of any of
its covenants and agreements contained in the Parent Undertaking Agreement other than as described
in clause (x), and in the case of clause (y), such default shall continue unremedied for a period
of 30 days; or the Parent Undertaking Agreement shall cease, for any reason, to be in full force
and effect or Trinity, TILC, the Issuer or any of the respective Affiliates shall so assert;




          (p) an Insurance Manager Default shall have occurred and be continuing under the Insurance
Agreement, and the Issuer shall have failed to exercise its rights under the Insurance Agreement in
respect of such Insurance Manager Default for a period of 30 days after receipt by the Issuer of
written notice from the Indenture Trustee demanding that such action be taken; and




          (q) the Issuer shall have defaulted in any material respect in the performance of any of its
covenants and agreements contained in Section 5.03(a) and such default shall continue unremedied
for a period of 30 days.




     Section 4.02 Remedies Upon Event of Default.



          (a) Upon the occurrence of an Event of Default of the type described in Section 4.01(f) or
4.01(g), the Outstanding Principal Balance of, and accrued interest on, the Equipment Notes,
together with all other amounts then due and owing to the Noteholders, shall become immediately due
and payable without further action by any Person. If any other Event of Default occurs and is
continuing, then the Indenture Trustee, acting at the Direction of the Requisite Majority, may
declare the principal of and accrued interest on all Equipment Notes then Outstanding to be due and
payable immediately, by written notice to the Issuer and the
Manager (a “Default Notice”), and upon any such declaration such principal and accrued
interest shall become immediately due and payable. At any time after the Indenture Trustee has
declared the Outstanding Principal Balance of the Equipment Notes to be due and payable and prior
to the exercise of any other remedies pursuant to this Indenture, the Indenture Trustee (at the
Direction of the Requisite Majority), by written notice to the Issuer, the Manager and the
Administrator may, except in the case of (i) a default in the deposit or distribution of any
payment required to be made on the Equipment Notes, (ii) a payment default on the Equipment Notes
or (iii) a default in respect of any covenant or provision of this Indenture that cannot by the
terms hereof be modified or amended without the consent of each Noteholder affected thereby,
rescind and annul such declaration and thereby annul its consequences, if (1) there has been paid
to or deposited with the Indenture Trustee an amount sufficient to pay all overdue installments of
interest on the Equipment Notes, and the principal of and premium, if any, on the Equipment Notes
that would have become due otherwise than by such declaration of acceleration, (2) the rescission
would not conflict with any judgment or decree, and (3) all other defaults and Events of Default,
other than nonpayment of interest and principal on the Equipment Notes that have become due solely
because of such acceleration, have been cured or waived.



43









 







          (b) If an Event of Default shall occur and be continuing, the Indenture Trustee may, and
shall, if given a Direction in writing by the Requisite Majority, do any or all of the following,
provided that the Indenture Trustee shall dispose of the Portfolio Railcars only if it has received
a Collateral Liquidation Notice:




          (i) Institute any Proceedings, in its own name and as trustee of an express trust, for
the collection of all amounts then due and payable on the Equipment Notes or under this
Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Collateral and any other assets of the Issuer any moneys
adjudged due;




          (ii) Subject to the quiet enjoyment rights of any Lessee of a Portfolio Railcar,
conduct proceedings to sell, hold or lease the Collateral or any portion thereof or rights
or interest therein, at one or more public or private transactions conducted in any manner
permitted by law; provided that, the Indenture Trustee shall incur no liability as a result
of the sale of the Collateral or any part thereof at any sale pursuant to this Section 4.02
conducted in a commercially reasonable manner, and the Issuer hereby waives any claims
against the Indenture Trustee arising by reason of the fact that the price at which the
Collateral may have been sold at such sale was less than the price that might have been
obtained, even if the Indenture Trustee accepts the first offer received and does not offer
the Collateral to more than one offeree.




          (iii) Institute any Proceedings from time to time for the complete or partial
foreclosure of the Encumbrance created by this Indenture with respect to the Collateral;




          (iv) Institute such other appropriate Proceedings to protect and enforce any other
rights, whether for the specific enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to enforce any other proper
remedy;




          (v) Exercise any remedies of a secured party under the UCC or any Applicable Law and
take any other appropriate action to protect and enforce the rights and remedies of the
Indenture Trustee or the Noteholders under this Indenture;




          (vi) Appoint a receiver or a manager over the Issuer or its assets; and




          (vii) Exercise its rights under Section 3.03 hereof.



          (c) If the Equipment Notes have been declared due and payable following an Event of Default,
any money collected by the Indenture Trustee pursuant to this Indenture or otherwise, and any
moneys that may then be held or thereafter received by the Indenture Trustee, shall be applied to
the extent permitted by law in the following order, at the date or dates fixed by the Indenture
Trustee;





          (i) First, to the payment of all costs and expenses of collection incurred by the
Indenture Trustee (including the reasonable fees and expenses of any



44











 






counsel to the Indenture Trustee), and all other amounts due the Indenture Trustee
under this Indenture; and




          (ii) Second, as set forth in the applicable provision of the Flow of Funds.



          (d) The Indenture Trustee shall provide each Rating Agency with a copy of any Default Notice
it receives or delivers pursuant to this Indenture. Within thirty (30) days after the occurrence
of an Event of Default in respect of the Equipment Notes, the Indenture Trustee shall give notice
to the Noteholders, transmitted by mail, of all uncured or unwaived Defaults actually known to a
Responsible Officer of the Indenture Trustee on such date; provided that the Indenture Trustee may
withhold such notice with respect to a Default (other than a payment default with respect to
interest, principal or premium, if any) if it determines in good faith that withholding such notice
is in the interest of the affected Noteholders.




          (e) The Issuer hereby agrees that if an Event of Default shall have occurred and is
continuing, the Indenture Trustee and any permitted delegee thereof are hereby irrevocably
authorized and empowered to act as the attorney-in-fact for the Issuer with respect to the giving
of any instructions or notices under this Indenture.




          (f) If an Event of Default shall have occurred and is continuing, upon the written Direction
of the Requisite Majority, the Indenture Trustee shall render an accounting of the current balance
of each Indenture Account, and shall direct the Account Collateral Agent to render an accounting of
the current balance of the Customer Payment Account.




          (g) If an Event of Default shall have occurred and is continuing, and only in such event, upon
the written Direction of the Requisite Majority, the Indenture Trustee shall be authorized to take
any and all actions and to exercise any and all rights, remedies and options which it may have
under this Indenture (which rights and remedies shall include the right to direct the withdrawal
and disposition of amounts on deposit in the Indenture Accounts) and which the Requisite Majority
directs it to take under this Indenture, including realization and foreclosure on the Collateral.




          (h) The Indenture Trustee may after the occurrence of and during the continuance of an Event
of Default exercise any and all rights and remedies of the Issuer under or in connection with the
Assigned Agreements (including, without limitation, the Management Agreement and any successor
agreement therefor) and otherwise in respect of the Collateral, including, without limitation, any
and all rights of the Issuer to demand or otherwise require payment of any amount under, or
performance of any provision of, any Assigned Agreement. In addition, after the occurrence of and
during the continuance of an Event of Default, upon the Direction of the Requisite Majority, the
Indenture Trustee may exercise all rights of the “lessor” under Leases related to Portfolio
Railcars, including, without limitation, the right to direct the applicable Lessees to make rental
payments to such account as the Indenture Trustee shall specify, for application to the Collections
Account and upon a Manager Default, or a Manager Replacement Event (as defined in the Management
Agreement) in respect of which the Manager has been replaced, and in each case upon the Direction
of the Requisite Majority, the Indenture Trustee may exercise the right of the “lessor” to direct
the applicable Lessees to make rental






45









 








payments to such account as the Indenture Trustee shall specify, for application to the
Collections Account.




     Section 4.03 Limitation on Suits.



     No Holder shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture or the Equipment Notes, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:



          (a) such Holder holds Equipment Notes and has previously given written notice to the Indenture
Trustee of a continuing Event of Default;




          (b) the Holders of at least 25% of the aggregate Outstanding Principal Balance of the
Equipment Notes give a written Direction to the Indenture Trustee to pursue a remedy hereunder;




          (c) such Holder or Holders offer to the Indenture Trustee an indemnity reasonably satisfactory
to the Indenture Trustee against any costs, expenses and liabilities to be incurred in complying
with such request;




          (d) the Indenture Trustee does not comply with such request within sixty (60) days after
receipt of the request and the offer of indemnity; and




          (e) during such sixty (60)-day period, a Requisite Majority does not give the Indenture
Trustee a Direction inconsistent with such request.




     No one or more Noteholders may use this Indenture to affect, disturb or prejudice the rights
of another Holder or to obtain or seek to obtain any preference or priority not otherwise created
by this Indenture and the terms of the Equipment Notes over any other Holder or to enforce any
right under this Indenture, except in the manner herein provided.



     Section 4.04 Waiver of Existing Defaults.



          (a) The Indenture Trustee acting at the Direction of the Requisite Majority may waive any
existing Default or Event of Default hereunder and its consequences, except any waiver in respect
of a covenant or provision hereof which, pursuant to Section 9.02(a), cannot be modified or amended
without the consent of such Persons as are required to amend such covenant or provision in addition
to the consent of the Requisite Majority.




          (b) Upon any waiver made in accordance with Section 4.04(a), such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon. Each such notice of waiver shall also be notified to each
Rating Agency.




          (c) Any written waiver of a Default or an Event of Default given by Holders of the Equipment
Notes to the Indenture Trustee and the Issuer in accordance with the terms of this Indenture shall
be binding upon the Indenture Trustee and the other parties hereto. Unless





46









 







such writing expressly provides to the contrary, any waiver so granted shall extend only to
the specific event or occurrence which gave rise to the Default or Event of Default so waived and
not to any other similar event or occurrence which occurs subsequent to the date of such waiver.




     Section 4.05 Restoration of Rights and Remedies.



     If the Indenture Trustee or any Holder of Equipment Notes has instituted any proceeding to
enforce any right or remedy under this Indenture, and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Indenture Trustee or such Holder,
then in every such case the Issuer, the Indenture Trustee and the Noteholders shall, subject to any
determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such proceeding has been instituted.



     Section 4.06 Remedies Cumulative.



     Each and every right, power and remedy herein given to the Indenture Trustee (or the Requisite
Majority) specifically or otherwise in this Indenture shall be cumulative and shall be in addition
to every other right, power and remedy herein specifically given or now or hereafter existing at
law, in equity or by statute, and each and every right, power and remedy whether specifically
herein given or otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee (or the Requisite Majority), and the
exercise or the beginning of the exercise of any power or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any other right, power or remedy.
No delay or omission by the Indenture Trustee (or the Requisite Majority) in the exercise of any
right, remedy or power or in the pursuance of any remedy shall impair any such right, power or
remedy or be construed to be a waiver of any Default on the part of the Issuer or to be an
acquiescence.



     Section 4.07 Authority of Courts Not Required.



     The parties hereto agree that, to the greatest extent permitted by law, the Indenture Trustee
shall not be obliged or required to seek or obtain the authority of, or any judgment or order of,
the courts of any jurisdiction in order to exercise any of its rights, powers and remedies under
this Indenture, and the parties hereby waive any such requirement to the greatest extent permitted
by law.



     Section 4.08 Rights of Noteholders to Receive Payment.



     Notwithstanding any other provision of this Indenture, the right of any Noteholder to receive
payment of interest on, principal of, or premium, if any, on the Equipment Notes on or after the
respective due dates therefor, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of such Noteholder.



47









 





     Section 4.09 Indenture Trustee May File Proofs of Claim.



     The Indenture Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture Trustee and of any Noteholder
allowed in any judicial proceedings relating to the Issuer, its creditors or its property.



     Section 4.10 Undertaking for Costs.



     All parties to this Indenture agree, and each Noteholder by its acceptance thereof shall be
deemed to have agreed, that in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Indenture Trustee for any action taken or omitted by it as
Indenture Trustee, a court in its discretion may require the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defense made by the party litigant.
This Section 4.10 does not apply to a suit instituted by the Indenture Trustee, a suit instituted
by any Noteholder for the enforcement of the payment of interest, principal, or premium, if any, on
the Equipment Notes on or after the respective due dates expressed in such Equipment Note, or a
suit by a Noteholder or Noteholders of more than 10% of the Outstanding Principal Balance of the
Equipment Notes (exclusive of Equipment Notes or interests therein held by any Issuer Group
Member).



ARTICLE V




REPRESENTATIONS, WARRANTIES AND COVENANTS



     Section 5.01 Representations and Warranties.



     The Issuer represents and warrants to the Indenture Trustee as of the Closing Date, and (other
than with respect to clauses (c), (d), (e), (m), (n) or (t) below) each Delivery Date, as follows:



          (a) Due Organization.





          (i) The Issuer is a limited liability company duly organized, validly existing, and in
good standing under the laws of the State of Delaware, is duly licensed or qualified and in
good standing in each jurisdiction in which the failure to so qualify would have a material
adverse effect on its ability to carry on its business as now conducted or to enter into and
perform its obligations under the Issuer Documents and the Operative Agreements to which the
Issuer is a party, has the organizational power and authority to carry on its business as
now conducted, has the requisite organizational power and authority to execute, deliver and
perform its obligations under the Issuer Documents and the Operative Agreements to which the
Issuer is a party.




          (ii) TILC is the sole member of the Issuer.



48









 






          (iii) Each of the LLC Agreement and each other organizational document of the Issuer
has been duly executed and delivered by each party thereto and constitutes a legal, valid
and binding obligation of each such party enforceable against such party in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors generally and
by general principles of equity.




          (iv) Since the date of formation of the Issuer, the Issuer has not conducted business
under any other name and does not have any trade names, or “doing business under” or “doing
business as” names. The Issuer has not reorganized in any jurisdiction (whether the United
States, any state therein, the District of Columbia, Puerto Rico, Guam or any possession or
territory of the United States, or any foreign country or state) other than the State of
Delaware.



          (b) Special Purpose Status.




     The Issuer has not engaged in any activities since its organization (other than those
incidental to its organization and other appropriate limited liability company steps and
arrangements for the payment of fees to, and director’s and officer’s insurance for, its member,
special member and manager), the execution of the Issuer Documents and the Operative Agreements to
which it is a party and the activities referred to in or contemplated by such agreements.



          (c) Non-Contravention.




     The Issuer’s acquisition of its Portfolio pursuant to the Asset Transfer Agreement, the other
transactions contemplated by the Asset Transfer Agreement, the creation of the Equipment Notes and
the issuance, execution and delivery of, and the compliance by the Issuer with the terms of each of
the Operative Agreements and the Equipment Notes:




          (i) do not conflict with, or result in a breach of any of the terms or provisions of,
or constitute a default under, the constitutional documents of the Issuer or with any
existing law, rule or regulation applying to or affecting the Issuer or any judgment, order
or decree of any government, governmental body or court having jurisdiction over Issue;




          (ii) do not infringe the terms of, or constitute a default under, any deed, indenture,
agreement or other instrument or obligation to which the Issuer is a party or by it or its
assets, property or revenues are bound; and




          (iii) do not constitute a default by the Issuer under, or result in the creation of any
Encumbrance (except for Permitted Encumbrances of the type described in clause (i), (ii) or
(v) of the definition thereof) upon the property of the Issuer under its organizational
documents or any indenture, mortgage, contract or other agreement or instrument to which the
Issuer is a party or by which the Issuer or any of its properties may be bound or affected.



49









 





          (d) Due Authorization.




     The Issuer’s acquisition of its Portfolio pursuant to the Asset Transfer Agreement, the other
transactions contemplated by the Asset Transfer Agreement, the creation, execution and issuance of
the Equipment Notes, the execution and issue or delivery by the Issuer of the Operative Agreements
executed by it and the performance by it of its obligations hereunder and thereunder and the
arrangements contemplated hereby and thereby to be performed by it have been duly authorized by all
necessary limited liability company action of the Issuer.



          (e) Validity and Enforceability.




     This Indenture constitutes, and the Operative Agreements, when executed and delivered and, in
the case of the Equipment Notes, when issued and authenticated, will constitute valid, legally
binding and (subject to general equitable principles, insolvency, liquidation, reorganization and
other laws of general application relating to creditors’ rights or claims or to laws of
prescription or the concepts of materiality, reasonableness, good faith and fair dealing)
enforceable obligations of the Issuer.



          (f) No Event of Default or Early Amortization Event. 




     No Event of Default or Early Amortization Event has occurred and is continuing and no event
has occurred that with the passage of time or notice or both would become an Event of Default or
Early Amortization Event.



          (g) No Encumbrances.




     Subject to the Security Interests created in favor of the Indenture Trustee and the Flow of
Funds, and except for Permitted Encumbrances, there exists no Encumbrance over the assets of the
Issuer that ranks prior to or pari passu with the obligation to make payments on the Equipment
Notes.



          (h) No Consents.




     No consent, approval or authorization of, or filing, registration or qualification with, or
the giving of notice to, any trustee or any holder of indebtedness of the Issuer or any
governmental authority on the part of the Issuer is required in the United States, Canada or Mexico
(subject to the proviso set forth below) in connection with the execution and delivery by the
Issuer of the Operative Agreements to which the Issuer is a party or in order for the Issuer to
perform its obligations thereunder in accordance with the terms thereof, other than: (i) notices
required to be filed with the STB and the Registrar General of Canada, which notices shall have
been filed on the Closing Date, (ii) as may be required under existing laws, ordinances,
governmental rules and regulations to be obtained, given, accomplished or renewed at any time after
the Closing Date in connection with the operation and maintenance of the Portfolio Railcars and in
accordance with the Operative Agreements that are routine in nature and are not normally applied
for prior to the time they are required, and which the Issuer has no reason to believe will not be
timely obtained, (iii) as may be required under the Operative Agreements in consequence of any
transfer of ownership of the Portfolio Railcars and (iv) filing and recording to perfect the



50









 




Security Interests under this Indenture as required hereunder; provided, that the parties
hereto agree that the Issuer shall not be required to make any such filings or recordings in
Mexico.




          (i) No Litigation.




     There is no claim, action, suit, investigation or proceeding pending against, or to the
knowledge of the Issuer, threatened against or affecting the Issuer, before any court or arbitrator
or any governmental body, agency or official which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated by this Indenture (including the
Exhibits and Schedules attached hereto) and/or the Operative Agreements.



          (j) Employees, Subsidiaries.




     The Issuer has no employees. The Issuer has no Subsidiaries.



          (k) Ownership.




     The Issuer is the owner of the Collateral free from all Encumbrances and claims whatsoever
other than Permitted Encumbrances.



          (l) No Filings.




     Under the laws of Delaware, Texas and New York (and including U.S. federal law) in force at
the date hereof, it is not necessary or desirable that this Indenture or any Operative Agreement to
which the Issuer is a party be filed, recorded or enrolled with any court or other authority in any
such jurisdictions or that any material stamp, registration or similar tax be paid on or in
relation to this Indenture or any of the other Operative Agreements (other than filings of UCC
financing statements and with the STB and in Canada in respect of the Security Interests in the
Portfolio Railcars).



          (m) Other Representations. The representations and warranties made by the Issuer in any
of the other Operative Agreements are true and accurate as of the date made.




          (n) Other Regulations. The Issuer is not an “investment company,” or an “affiliated
person” of, or a “promoter” or “principal underwriter” for, an “investment company,” as such terms
are defined in the Investment Company Act of 1940, as amended.




          (o) Insurance. The Portfolio Railcars described on each Delivery Schedule delivered
from time to time under the Asset Transfer Agreement are, at the time of the related Conveyance to
the Issuer, covered by the insurance required by Section 5.04(f) hereof, and all premiums due prior
to the applicable Delivery Date in respect of such insurance shall have been paid in full and such
insurance as of the applicable Delivery Date is in full force and effect.




          (p) No Event of Default or Total Loss. At the time of each Conveyance of Railcars
under the Asset Transfer Agreement, (i) no Event of Default has occurred and is continuing, (ii) no
Manager Default (in the case of Conveyances other than on the Closing Date)
or Manager Termination Event (in the case of Conveyances on the Closing Date) has occurred and
is continuing, (iii) to the knowledge of the Issuer, no Total Loss or event that, with the




51









 







giving
of notice, the passage of time or both, would constitute a Total Loss with respect to any of the
Railcars so Conveyed, has occurred, and (iv) to the knowledge of the Issuer, no Railcar being
Conveyed under the Asset Transfer Agreement on such date has suffered damage or contamination
which, in the Issuer’s reasonable judgment, makes repair uneconomic or renders such Railcar unfit
for commercial use.




          (q) Beneficial Title. On each Delivery Date upon which a Conveyance occurs under the
Asset Transfer Agreement, (i) the applicable Seller has, and shall pursuant to its related Bill of
Sale have, conveyed all legal and beneficial title of the Issuer to such Railcars being so Conveyed
free and clear of all Encumbrances (other than Permitted Encumbrances) and such Conveyance will not
be void or voidable under any applicable law and (ii) the applicable Seller has, and the Assignment
and Assumption to be delivered on the related Delivery Date shall upon acceptance thereof by the
Issuer assign to the Issuer, all legal and beneficial title to the related Leases, free and clear
of all Encumbrances (other than Permitted Encumbrances), and the Assignment and Assumption will not
be void or voidable under any applicable law.




          (r) Nature of Business. The Issuer is not engaged in the business of extending credit
for the purposes of purchasing or carrying margin stock, and no proceeds of the Equipment Notes
will be used by the Issuer for a purpose which violates, or would be inconsistent with, Section 7
of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal
Reserve System (terms for which meanings are provided in Regulations T, U and X of the Federal
Reserve System or any regulations substituted therefor, as from time to time in effect, being used
in this Section 5.01(r) with such meanings).




          (s) No Default under Organizational Documents. The Issuer is not in violation of any
term of any of its organizational documents or in violation or breach of or in default under any
other agreement, contract or instrument to which it is a party or by which it or any of its
property may be bound.




          (t) Issuer Compliance. The Issuer is in compliance in all material respects with all
laws, ordinances, governmental rules, regulations, orders, judgments, decrees, determinations and
awards to which it is subject and the Issuer has obtained all required licenses, permits,
franchises and other governmental authorizations material to the conduct of its business.




          (u) Railcar Compliance; Autoracks. Each Railcar Conveyed on a Delivery Date, taken as
a whole, and each major component thereof complies in all material respects with all applicable
laws and regulations, all requirements of the manufacturer for maintaining in full force and effect
any applicable warranties and the requirements, if any, of any applicable insurance policies,
conforms with the specifications for such Railcar contained in the related Appraisal (to the extent
a copy of such Appraisal or a relevant excerpt therefrom has been delivered to the Issuer) and is
substantially complete such that it is ready and available to operate in commercial service and
otherwise perform the function for which it was designed; and the railcar identification marks
shown on the related Bill of Sale are the marks then used on the Portfolio Railcars set forth on
such Bill of Sale. Each Portfolio Railcar that is an autorack qualifies for the National Reload
Pool.






52









 








          (v) Taxes. On each Delivery Date upon which a Conveyance occurs under the Asset
Transfer Agreement, all sales, use or transfer taxes, if any, due and payable upon the purchase of
the Portfolio Railcars by the Issuer from the applicable Seller will have been paid or such
transactions will then be exempt from any such taxes, and the Issuer will cause any required forms
or reports in connection with such taxes to be filed in accordance with applicable laws and
regulations.




          (w) Lease Terms. Each Railcar Conveyed on the relevant Delivery Date is subject to a
Permitted Lease, which Lease (together with the other Leases that are or have been the subject of
such Conveyances) contains rental and other terms which are no different, taken as a whole, from
those for similar railcars in the TILC Fleet.




          (x) Eligibility. Each Railcar described on its relevant Delivery Schedule constitutes
an Eligible Railcar as of the date of its Conveyance to the Issuer.




          (y) Assignment of Leases. (i) Each Lease conveyed on the relevant Delivery Date is
freely assignable from the applicable Seller to the Issuer and from the Issuer to any other Person
(including, without limitation, any transferee in connection with the Indenture Trustee’s exercise
of rights or remedies under this Indenture) or, if any such Lease is not freely assignable, then
consents to such assignments determined by the Manager in good faith to be sufficient for their
intended purposes have been obtained prior to the relevant Delivery Date, (ii) no assignment
described in this Section 5.01(y) is void or voidable or will result in a claim for damages
or reduction in rental or other payments, in each case pursuant to the terms and conditions of any
such Lease and (iii) no consent, approval or filing is required under such Lease in connection with
the execution and delivery of the Operative Agreements.




          (z) Purchase Options. With respect to any Portfolio Railcars that are subject to a
purchase option granted to the Lessee under the relevant Lease, (i) such purchase option is
exercisable by the applicable Lessee for a purchase price not less than (at the time of such
purchase) the greater of (1) an appraiser’s estimate at Lease inception of fair market value at the
time of potential exercise under the option provision, and (2) 105% of the product of the Railcar
Advance Rate and the Adjusted Value of the Portfolio Railcars subject to such purchase option and
(ii) the sum of (x) the aggregate Adjusted Values of all Portfolio Railcars subject to such Lease
and all Portfolio Railcars subject to any other Lease containing a purchase option and (y) the
aggregate sum of the Adjusted Values of all Portfolio Railcars that the Issuer has sold pursuant to
Permitted Discretionary Sales or Purchase Option Dispositions, does not exceed 35% of the highest
aggregate Adjusted Value of all Portfolio Railcars held by the Issuer at any particular time up to
the date this representation is made or deemed made. Any such purchase option complying with each
of the foregoing limitations described in clauses (i) and (ii) above is referred to herein and in
the other Operative Agreements as a “Permitted Purchase Option.”




          (aa) No Other Financing of Lease; Permitted Lease. After giving effect to the
transfers contemplated under the Operative Agreements, (i) the Leases being Conveyed to the Issuer
on any applicable Delivery Date (as evidenced by the Riders or Schedules with respect thereto) are
not subject to and do not cover railcars financed in, any financing or securitization transaction
other than the transactions contemplated by the Operative Agreements and (ii) such Leases conform
to the definition of Permitted Lease.






53









 








          (bb) Concentration Limits. After giving effect to the Issuer’s acquisition of
Railcars in connection with issuing the Equipment Notes on the Closing Date, the Portfolio complies
with all Concentration Limits.




     Section 5.02 General Covenants.



     The Issuer covenants with the Indenture Trustee as follows:



          (a) No Release of Obligations.




     The Issuer will not take any action which would amend, terminate (other than any termination
in connection with the replacement of such agreement on terms substantially no less favorable to
the Issuer than the agreement being terminated) or discharge or prejudice the validity or
effectiveness of this Indenture (other than as permitted herein) or any other Operative Agreement
or permit any party to any such document to be released from such obligations, except that; in each
case, as permitted or contemplated by the terms of such documents, and provided that, in any case,
(i) the Issuer will not take any action which would result in any amendment or modification to any
conflicts standard or duty of care in such agreements and (ii) there must be at all times an
Administrator and a Manager with respect to all Portfolio Railcars.



          (b) Encumbrances.




          The Issuer will not create, incur, assume or suffer to exist any Encumbrance other than: (i)
any Permitted Encumbrance, and (ii) any other Encumbrance the validity or applicability of which is
being contested in good faith in appropriate proceedings by any Issuer Group Member (and the
proceedings related to such Encumbrance or the continued existence of such Encumbrance does not
give rise to any reasonable likelihood of the sale, forfeiture or loss of the asset affected by
such Encumbrance) and for which the Issuer maintains adequate cash reserves to pay such
Encumbrance.




          (c) Indebtedness.




          The Issuer will not incur, create, issue, assume, guarantee or otherwise become liable for or
with respect to, or become responsible for the payment of, contingently or otherwise, whether
present or future, Indebtedness, other than Indebtedness in respect of the Equipment Notes issued
in accordance with the terms of this Indenture.




          (d) Restricted Payments.




          The Issuer will not (i) declare or pay any dividend or make any distribution on its Stock;
provided that, so long as no Event of Default shall have occurred and be continuing and to the
extent there are available funds therefor on the applicable Payment Date, the Issuer may make
payments on its limited liability company membership interests to the extent of the aggregate
amount of distributions made to the Issuer pursuant to the Flow of Funds; (ii) purchase, redeem,
retire or otherwise acquire for value any membership interest in the Issuer held by or on behalf of
Persons other than any Permitted Holder; (iii) make any interest, principal or premium, if any,
payment on the Equipment Notes or make any voluntary or optional repurchase, defeasance or other
acquisition or retirement for value of Indebtedness of





54












 




the Issuer other than in accordance with the
Equipment Notes and this Indenture or the Operative Agreements; provided that the Issuer may
repurchase, defease or otherwise acquire or retire any of the Equipment Notes from a source other
than from Collections (other than that portion of Collections that would otherwise be distributable
to the Issuer in accordance with the Flow of Funds); or (iv) make any investments, other than
Permitted Investments and investments permitted under Section 5.02(f) hereof.




     The term “investment” for purposes of the above restriction shall mean any loan or advance to
a Person, any purchase or other acquisition of any Stock or Indebtedness of such Person, any
capital contribution to such Person or any other investment in such Person.




     (e) Limitation on Dividends and Other Payments.



          The Issuer will not create or otherwise suffer to exist any consensual limitation or
restriction of any kind on the ability of the Issuer to declare or pay dividends or make any other
distributions permitted by Applicable Law, other than pursuant to the Operative Agreements.




     (f) Business Activities.




     The Issuer will not engage in any business or activity other than:




          (i) purchasing or otherwise acquiring (subject to the limitations on acquisitions of
Portfolio Railcars described below), owning, holding, converting, maintaining, modifying,
managing, operating, leasing, re-leasing and (subject to the limitations on sales of
Portfolio Railcars described below) selling or otherwise disposing of its Portfolio Railcars
and entering into all contracts and engaging in all related activities incidental thereto,
including from time to time accepting, exchanging, holding promissory notes, contingent
payment obligations or equity interests of Lessees or their Affiliates issued in connection
with the bankruptcy, reorganization or other similar process, or in settlement of delinquent
obligations or obligations anticipated to be delinquent of such Lessees or their respective
Affiliates in the ordinary course of business;




          (ii) financing or refinancing the business activities described in clause (i) of this
Section 5.02(f) through the offer, sale and issuance of the Equipment Notes;




          (iii) purchasing, acquiring, surrendering and assigning policies of insurance and
assurances with any insurance company or companies which the Issuer or the Insurance Manager
determines to be necessary or appropriate to comply with this Indenture and to pay the
premiums or the Issuer’s allocable portion thereon; and




          (iv) taking any action that is incidental to, or necessary to effect, any of the
actions or activities set forth above.




     (g) Limitation on Consolidation, Merger and Transfer of Assets.



          The Issuer will not consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of its property and assets (as an entirety or substantially an entirety in



55









 




one
transaction or in a series of related transactions) to, any other Person, or permit any other
Person to merge with or into the Issuer (any such consolidation, merger, sale or disposition, a
“Merger Transaction”), unless:





          (i) the resulting entity is a special purpose entity, the charter of which is
substantially similar to the LLC Agreement, and, after such Merger Transaction, payments
from such resulting entity to the Noteholders do not give rise to any withholding tax
payments less favorable to the Noteholders than the amount of any withholding tax payments
which would have been required had such Merger Transaction not occurred and such entity is
not subject to taxation as a corporation or an association or a publicly traded partnership
taxable as a corporation;




          (ii) (A) such Merger Transaction has been unanimously approved by the board of managers
of the Issuer and (B) the surviving successor or transferee entity shall expressly assume
all of the obligations of the Issuer under this Indenture, the Equipment Notes and each
other Operative Agreement to which the Issuer is then a party (with the result that, in the
case of a transfer only, the Issuer thereupon will be released);




          (iii) both before, and immediately after giving effect to such Merger Transaction, no
violation of a Concentration Limit, Event of Default or Early Amortization Event shall have
occurred and be continuing;




          (iv) each of (A) a Rating Agency Confirmation and (B) the consent of the Indenture
Trustee (acting at the Direction of a Requisite Majority) has been obtained with respect to
such Merger Transaction;




          (v) for U.S. Federal income tax purposes, such Merger Transaction does not result in
the recognition of gain or loss by any Noteholder; and




          (vi) the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an
Opinion of Counsel, in each case stating that such Merger Transaction complies with the
above criteria and, if applicable, Section 5.03(a) hereof and that all conditions precedent
provided for herein relating to such transaction have been complied with;




     (h) Limitation on Transactions with Affiliates.



          The Issuer will not, directly or indirectly, enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of property or assets, or the
rendering of any service) with any Affiliate of the Issuer, except upon fair and reasonable terms
no less favorable to the Issuer than could be obtained, at the time of such transaction or at the
time of the execution of the agreement providing therefor, in a comparable arm’s-length transaction
with a Person that is not such an Affiliate, provided, that the foregoing restriction does not
limit or apply to the following:




          (i) any transaction in connection with the establishment of the Issuer, its initial
capitalization and the acquisition of its initial Portfolio or pursuant to the terms of the
Operative Agreements;



56









 






          (ii) the payment of reasonable and customary regular fees to, and the provision of
reasonable and customary liability insurance in respect of, the managers/members of the
Issuer’s;




          (iii) any payments on or with respect to the Equipment Notes or otherwise in accordance
with the Flow of Funds;




          (iv) any acquisition of Additional Railcars or any Permitted Railcar Acquisition
complying with Section 5.03(b) hereof;




          (v) any payments of the types referred to in clause (i) or (ii) of Section 5.02(d)
hereof and not prohibited thereunder; or




          (vi) the sale of Portfolio Railcars as part of a single transaction providing for the
redemption or defeasance of the Equipment Notes in whole in accordance with the terms of
this Indenture.




     (i) Limitation on the Issuance, Delivery and Sale of Equity Interests.



          Except as expressly permitted by its LLC Agreement, the Issuer will not (1) issue, deliver or
sell any Stock or (2) sell, directly or indirectly, or issue, deliver or sell, any Stock, except
for the following:




          (A) issuances or sales of any additional membership interests to the Member
(the “Permitted Holder”); or




          (B) contributions by the Permitted Holder of funds to the Issuer with which to
effect a redemption or discharge of the Equipment Notes upon any acceleration of
the Equipment Notes.


Notwithstanding the foregoing, no issuance, delivery, sale, transfer or other disposition of any
equity interest in the Issuer will be effective, and any such issuance, delivery, sale transfer or
other disposition will be void ab initio, if it would result in the Issuer being classified as an
association (or a publicly traded partnership) taxable as a corporation for U.S. federal income tax
purposes.





     (j) Bankruptcy and Insolvency.




          (i) The Issuer will promptly provide the Indenture Trustee and the Rating Agencies with
written notice of the institution of any proceeding by or against the Issuer seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other similar
official for either or for any substantial part of its property. The Issuer will not take
any action to waive, repeal, amend, vary, supplement or otherwise modify its charter
documents and including its LLC Agreement (except in accordance with the next sentence)
unless receiving the prior written consent of the Indenture Trustee (acting at the



57









 






Direction
of the Requisite Majority) as well as a Rating Agency Confirmation in respect thereof. The
Issuer will not, without a Special Rating Agency Confirmation, take any action to waive,
repeal, amend, vary, supplement or otherwise modify the provision of its LLC Agreement which
requires action or consent of its special member or limits actions of the Issuer with
respect to voluntary insolvency proceedings or involuntary insolvency proceedings of the
Issuer.




          (ii) The Issuer shall cause each party to any Operative Agreement, and each party to
any other agreement incidental or related to any Operative Agreement, that in either such
case renders the Issuer a debtor to such party, to covenant and agree that it shall not,
prior to the date which is one year and one day (or if longer, the applicable preference
period then in effect) after the payment in full of the Equipment Notes, acquiesce, petition
or otherwise, directly or indirectly, invoke or cause the Issuer to invoke the process of
any governmental authority for the purpose of commencing or sustaining a case against the
Issuer under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of its property or ordering the winding up or
liquidation of the affairs of the Issuer. This provision shall survive the termination of
this Indenture.



          (k) Payment of Principal, Premium, if any, and Interest.



          The Issuer will duly and punctually pay the principal, premium, if any, and interest on the
Equipment Notes in accordance with the terms of this Indenture and the Equipment Notes.



          (l) Limitation on Employees.



          The Issuer will not employ or maintain any employees other than as required by any provisions
of local law. Managers, officers and directors shall not be deemed to be employees for purposes of
this Section 5.02(l).



          (m) Delivery of Rule 144A Information. To permit compliance with Rule 144A in
connection with offers and sales of Equipment Notes, the Issuer will promptly furnish upon request
of a Holder of an Equipment Note to such Holder and a prospective purchaser designated by such
Holder, the information required to be delivered under Rule 144A(d)(4) if at the time of such
request the Issuer is not a reporting company under Section 13 or Section 15(d) of the Exchange
Act.



          (n) Administrator. If at any time, there is not a Person acting as Administrator, the
Issuer shall promptly appoint a qualified Person to perform any duties under this Indenture that
the Administrator is obligated to perform until a replacement Administrator assumes the duties of
the Administrator.



          (o) Ratings of Equipment Notes. For so long as any Equipment Notes are Outstanding,
the Issuer shall pay all fees of S&P and Moody’s and take all such other actions as may be
necessary from time to time in order to cause S&P and Moody’s to maintain a rating with respect to
the Equipment Notes.



58









 





          (p) Separate Entity Characteristics. The Issuer shall at all times:




          (i) not commingle its assets with those of any Person, including any Affiliate, except
with respect to the Customer Payments Account and as may occur from time to time due to
misdirected payments;




          (ii) conduct its business separate from any direct or ultimate parent of the Issuer;




          (iii) maintain financial statements susceptible to audit, separate from those of any
other Person showing its assets and liabilities separate and apart from those of any other
Person;




          (iv) pay its own expenses and liabilities and pay the salaries of its own employees, if
any, only from its own funds;




          (v) maintain an “arm’s-length relationship” with its Affiliates;




          (vi) not guarantee or become obligated for the debts of any other Person and not hold
out its credit as being available to satisfy the debts or any other obligations of any other
Person;




          (vii) use separate stationery, invoices and checks and hold itself out as a separate
and distinct entity from any other Person;




          (viii) observe all limited liability company and other organizational formalities
required by the law of its jurisdiction of formation;




          (ix) not acquire obligations or securities of any Person, except Permitted Investments
and as otherwise contemplated in the Operative Agreements;




          (x) allocate fairly and reasonably any overhead expenses shared with any other Person,
if any;




          (xi) except for the Security Interests and Permitted Encumbrances, not pledge its
assets for the benefit of any other Person or make any loans or advances to any Person (but
the Issuer may extend or forbear obligations of any Lessees under the related Leases in the
ordinary course of business and in accordance with the provisions of the Management
Agreement);




          (xii) correct any known misunderstanding regarding its separate identity from other
Persons;




          (xiii) maintain adequate capital in light of its contemplated business operations;




          (xiv) maintain books and records (in accordance with generally accepted accounting
principles in the United States) separate from any other Person at its principal



59









 






office
which show a true and accurate record in United States dollars of all business transactions
arising out of and in connection with the conduct of the Issuer and the operation of its
business in sufficient detail to allow preparation of tax returns required to be prepared
and the maintenance of the Indenture Accounts;




          (xv) maintain bank and other accounts (other than the Indenture Accounts), if any,
separate from any other Person or entity;




          (xvi) conduct its business in its own name; and




          (xvii) not take any actions that would be inconsistent with maintaining the separate
legal identity of the Issuer.



     Section 5.03 Portfolio Covenants.



     The Issuer covenants with the Indenture Trustee as follows:



          (a) Railcar Dispositions. The Issuer will not sell, transfer or otherwise dispose of
any Railcar or any interest therein, except that the Issuer may sell, transfer or otherwise dispose
of or part with possession of (i) any Parts, or (ii) one or more Portfolio Railcars, as follows
(any such sale, transfer or disposition described in clause (i), (ii) or (iii) of this Section
5.03(a), a “Permitted Railcar Disposition”):




          (i) A Railcar Disposition pursuant to a Permitted Purchase Option (a “Purchase Option
Disposition”);




          (ii) A Railcar Disposition pursuant to receipt of insurance or other third party
proceeds in connection with the Total Loss of a Portfolio Railcar (and any consequent later
sale of such affected Railcar for scrap or salvage value) (an “Involuntary Railcar
Disposition”); or




          (iii) A Railcar Disposition in the ordinary course of business (other than a Railcar
Disposition as a result of a Total Loss or a Purchase Option Disposition) so long as the
following conditions are complied with (a “Permitted Discretionary Sale”):




          (A) At the time of such Railcar Disposition, no Event of Default or Early
Amortization Event shall have occurred and then be continuing.




          (B) The Issuer (or the Manager on its behalf) prior to such Railcar
Disposition, as evidenced by an Officer’s Certificate to be delivered to the
Indenture Trustee, shall have identified replacement Railcars for the Issuer to
purchase meeting the criteria set forth in clauses “1” through “4” of clause (C)
below (Railcars meeting such criteria, “Qualifying Replacement Railcars”), with
such purchase expected to be made within 30 days of the date of the discretionary
sale.



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          (C) Such Railcars


(1) must be of comparable remaining economic useful life to the Portfolio Railcars being sold,



(2) must have an Appraisal showing an Initial Appraised Value,



(3) must be under Lease to the same extent as the Portfolio Railcars being sold, and



(4) must have been manufactured by Trinity or an Affiliate thereof, and must be purchased pursuant
to the Asset Transfer Agreement.





          (D) With respect to the Portfolio Railcars to be sold pursuant to a Permitted
Discretionary Sale (such Portfolio Railcars being referred to below as the “Sold
Railcars”), each of the following conditions shall have been satisfied and the
Indenture Trustee shall have received an Officer’s Certificate of the Issuer (or
the Manager on its behalf) certifying as to the satisfaction of such conditions:


(1) The Sold Railcars must be purchased from the Issuer by a third party that is not an Issuer
Group Member.



(2) The Net Disposition Proceeds realized in such sale must be at least 105% of the product of the
Railcar Advance Rate and the Adjusted Value of such Sold Railcars.



(3) Sold Railcars that were under Lease at the time of sale, if being replaced, must be replaced by
Qualifying Replacement Railcars under Lease that generate at least the same amount of current
monthly lease revenue and have a remaining Lease term at least equal to two-thirds of the Lease
term of such Sold Railcars.



(4) Sold Railcars that were not under Lease at the time of sale, if being replaced, must be
replaced by Qualifying Replacement Railcars as to which, if not then under Lease, the Manager has a
reasonable, good faith expectation that such Qualifying Replacement Railcars will generate at least
the same amount of monthly lease revenue (once placed under Lease) as the Manager would have
expected for the Sold Railcars.





          (E) The Net Disposition Proceeds must be deposited into the Mandatory
Replacement Account.




          (F) Such Railcar Disposition, after giving effect to the expected
reinvestment, will not directly cause noncompliance with any Concentration Limit.




          (G) The Initial Appraised Value of the reinvestment Railcars acquired in
connection with a Permitted Discretionary Sale must at least equal the Adjusted
Value of the Sold Railcars at their time of sale (except to a de minimus extent).



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          (H) The sum of (x) the Adjusted Value of the Portfolio Railcars to be sold in
such Railcar Disposition, (y) the aggregate sum of the Adjusted Values of all
Portfolio Railcars that the Issuer has sold in all Permitted Discretionary Sales
and Purchase Option Dispositions and (z) the aggregate Adjusted Value of all
Portfolio Railcars then subject to a Lease containing a purchase option, does not
exceed 35% of the highest aggregate Adjusted Value of all Portfolio Railcars held
by the Issuer at any particular time up to the related date of sale.




          (I) The Adjusted Value of the Portfolio Railcars to be sold in such Railcar
Disposition, in the aggregate with the aggregate sum of the Adjusted Values of all
Portfolio Railcars that the Issuer has sold in any Permitted Discretionary Sales or
Purchase Option Dispositions, does not exceed 15% of the average, for each of the
previous twelve Payment Dates, of the aggregate sum of the Adjusted Values of all
Portfolio Railcars for such Payment Dates (or, if fewer than twelve Payment Dates
have passed, such average for all such Payment Dates).




          (iv) With respect to a Permitted Railcar Disposition constituting a Purchase Option
Disposition or Involuntary Disposition, the Issuer will, if not electing to deposit such
proceeds directly into the Collections Account, deposit the related Net Disposition Proceeds
into the Optional Reinvestment Account for application, within the Replacement Period, to a
purchase of Qualifying Replacement Railcars in a Replacement Exchange (as contemplated and
provided in Section 3.05).



          (b) Railcar Acquisitions. The Issuer will not purchase or otherwise acquire a Railcar
(or an interest therein) other than the Initial Railcars or any interest therein, except that, the
Issuer will be permitted to: (i) purchase or otherwise acquire, directly or indirectly, Railcars
constituting Qualifying Replacement Railcars in connection with any Replacement Exchange, or (ii)
acquire one or more additional Railcars pursuant to a capital contribution, so long as, in each
case of clause (i) and (ii), each of the following requirements are satisfied on or prior to such
purchase or other acquisition:




          (A) no Event of Default or Early Amortization Event shall have occurred and be
continuing or would directly result therefrom;




          (B) after giving effect to the acquisition, the Portfolio will comply with the
Concentration Limits;




          (C) the Railcars being acquired have an Appraisal showing an Initial Appraised
Value;




          (D) the Purchase Price for each such Railcar does not exceed its Initial
Appraised Value;




          (E) the Railcars being acquired were manufactured by Trinity or an Affiliate,
and are acquired pursuant to the Asset Transfer Agreement;



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          (F) except in connection with Railcars being acquired in a Replacement
Exchange for Portfolio Railcars that were not subject to a Lease at the time of the
disposition thereof by the Issuer, the Railcars being acquired are each subject to
a Permitted Lease; that all actions (including the applicable UCC, STB or Registrar
General of Canada filings) shall have been taken to cause the Railcars being
assigned to be subject to a first priority security interest in favor of the
Indenture Trustee for the benefit of the Secured Parties; and




          (G) that the Railcars will be free and clear of Encumbrances other than
Permitted Encumbrances.



          (c) Permitted Railcar Acquisition. A Railcar acquisition by the Issuer complying with
the provisions in subsection (b) immediately above constitutes a “Permitted Railcar Acquisition”.



          (d) Modification Payments and Capital Expenditures. The Issuer will not make any
capital expenditures for the purpose of effecting any optional improvement or modification of any
Portfolio Railcar or Parts outside of the ordinary course of business, except
that the Issuer may make Optional Modifications and Required Modifications in its discretion
and subject to the following limitations on the manner in which such Required Modifications and
Optional Modifications may be funded:




          (i) Required Modifications may be funded out of the Expense Account in
accordance with Section 3.06; and




          (ii) Optional Modifications may be funded from distributions to the Issuer
pursuant to the Flow of Funds, or from capital contributions to the Issuer.


In the case of any Optional Modification, the Issuer prior to undertaking such Optional
Modification shall have determined, based upon consultation with the Manager, that the optional
modification is not expected to decrease the value or marketability of the Portfolio Railcar as a
result of the expenditure on such Optional Modification.




          (e) Leases.




          (i) The Issuer will not surrender possession of any Portfolio Railcar to any Person
other than for purposes of maintenance or overhaul or pursuant to a Permitted Lease or for
storage purposes pending the Manager’s procurement of a Permitted Lease thereon.




          (ii) The Issuer will, and will cause the Manager in general to use its pro forma lease
agreement or agreements, as such pro forma lease agreement or agreements may be revised for
purposes of the Issuer specifically or generally from time to time by the Manager
(collectively, the “Pro Forma Lease”), for use by the Manager on behalf of the Issuer as a
starting point in the negotiation of Future Leases. However, with respect to any Future
Lease entered into in connection with (x) the renewal or extension of a related Lease, (y)
the leasing of a Portfolio Railcar to a Person that is or was a Lessee under a pre-existing
Lease, or (z) the leasing of a Portfolio Railcar to a Person that is or



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was a Lessee under
an operating lease of a Railcar that is being managed or serviced by the Manager (such
Future Lease, a “Renewal Lease”), a form of lease substantially similar to such pre-existing
Lease or operating lease (a “Precedent Lease”), as the case may be, may be used by the
Manager, in lieu of the Pro Forma Lease on behalf of the Issuer as a starting point in the
negotiation of such Future Lease. The terms of the Pro Forma Lease may be revised from time
to time by the Manager, provided that any such revisions shall be consistent with a Lease
originated thereunder being a Permitted Lease.



          (f) Concentration Limits. The Issuer will not sell, purchase, otherwise take any
action with respect to any Portfolio Railcar if entering into such proposed sale, or other action
would cause the Portfolio to no longer comply with the Concentration Limits; provided, that the
foregoing restriction shall not apply to the renewal by the Issuer of an Existing Lease. Also, the
Issuer will not consummate a Permitted Discretionary Sale if the effect of such action is or would
be to cause noncompliance with any Concentration Limit.



     Section 5.04 Operating Covenants.



     The Issuer covenants with the Indenture Trustee as follows, provided that any of the following
covenants with respect to the Portfolio Railcars shall not be deemed to have been breached by
virtue of any act or omission of a Lessee or sub-lessee, or of any Person which has possession of a
Portfolio Railcar for the purpose of repairs, maintenance, modification or storage, or by virtue of
any requisition, seizure, or confiscation of a Portfolio Railcar (other than seizure or
confiscation arising from a breach by the Issuer of such covenant) (each, a “Third Party Event”),
so long as (i) neither the Issuer nor the Manager has consented to such Third Party Event; and (ii)
the Issuer (or the Manager on its behalf) as the Lessor of such Portfolio Railcar promptly and
diligently takes such commercially reasonable actions as a leading railcar operating lessor would
reasonably take in respect of such Third Party Event, including, as deemed appropriate (taking into
account, among other things, the laws of the jurisdiction in which such Portfolio Railcar is
located), seeking to compel such Lessee or other relevant Person to remedy such Third Party Event
or seeking to repossess the relevant Portfolio Railcar:



          (a) Ownership. The Issuer will (i) on all occasions on which the ownership of each
Portfolio Railcar is relevant, make it clear to third parties that title to the same is held by the
Issuer, and (ii) not do, or knowingly permit to be done, or omit, or knowingly permit to be
omitted, any act or thing which might reasonably be expected to jeopardize the rights of the Issuer
as owner of each Portfolio Railcar, except as contemplated by the Operative Agreements.



          (b) Compliance with Law; Maintenance of Permits. The Issuer will (i) comply in all
material respects with all Applicable Laws, (ii) obtain all material governmental (including
regulatory) registrations, certificates, licenses, permits and authorizations required for the use
and operation of the Portfolio Railcars owned by it, (iii) not cause or knowingly permit, directly
or indirectly, any Lessee to operate any Portfolio Railcar under any related Lease in any material
respect contrary to any Applicable Law, and (iv) not knowingly permit, directly or indirectly, any
Lessee not to obtain all material governmental (including regulatory) registrations, certificates,
licenses, permits and authorizations required for such Lessee’s use and operation of any Portfolio
Railcar under any related operating Lease.




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          (c) Forfeiture. The Issuer will not do anything, and will not knowingly
permit, directly or indirectly, any Lessee to do anything, which may reasonably be expected to
expose any Portfolio Railcar to forfeiture, impoundment, detention, appropriation, damage or
destruction (other than any forfeiture, impoundment, detention or appropriation which is being
contested in good faith by appropriate proceedings if (i) adequate resources have been made
available by the Issuer or the applicable Lessee for any payment which may arise or be required in
connection with such forfeiture, impounding, detention or appropriation or proceedings taken in
respect thereof, and (ii) such forfeiture, impounding, detention or appropriation or the continued
existence thereof does not give rise to any material likelihood of the assets to which such
forfeiture, impounding, detention or appropriation relates or any interest in such assets being
sold, permanently forfeited or otherwise lost). In the event of a forfeiture, impoundment,
detention or appropriation of such Portfolio Railcar not constituting a Total Loss, the Issuer will
use all commercially reasonable efforts to obtain the prompt release of such Portfolio Railcar.



          (d) Maintenance of Assets. The Issuer will, with respect to each Portfolio
Railcar under Lease, cause, directly or indirectly, such Portfolio Railcar to be maintained in a
state of repair and condition consistent with the reasonable commercial practice of leading railcar
operating lessors with respect to similar railcars under lease, taking into consideration, among
other things, the identity of the relevant Lessee (including the
credit standing and operating experience thereof), the age and condition of the Portfolio
Railcar and the jurisdiction in which the Portfolio Railcar is or will be operated or in which the
Lessee is based. In addition, the Issuer will, with respect to each Portfolio Railcar that is not
subject to a Lease, maintain such Portfolio Railcar in a state of repair and condition consistent
with the reasonable commercial practice of leading railcar operating lessors with respect to
railcars not under lease.



          (e) Notification of Loss, Theft, Damage or Destruction. The Issuer will
notify the Indenture Trustee, the Administrator, and the Manager, in writing, as soon as the Issuer
becomes aware of any loss, theft, damage or destruction to any Portfolio Railcar if the potential
cost of repair or replacement of such asset (without regard to any insurance claim related thereto)
may exceed $1,000,000.



          (f) Insurance. The Issuer covenants with the Indenture Trustee as follows:




          (i) Insurance. The Issuer will at all times after the Closing Date,
at its own expense, keep or cause the Insurance Manager under the Insurance Agreement to
keep each Portfolio Railcar insured with insurers of recognized responsibility with a rating
of at least A- by A.M. Best Company (or a comparable rating by a nationally or
internationally recognized rating group of comparable stature) or by other insurers approved
in writing by the Requisite Majority, which approval shall not be unreasonably withheld, in
amounts and against risks and with deductibles and terms and conditions not less beneficial
to the insured thereunder than the insurance, if any, maintained by the Manager with respect
to similar equipment which it owns or leases, but in no event shall such coverage be for
amounts or against risks less than the Prudent Industry Practice.




          (ii) Additional Insurance. In the event that the Issuer shall fail
to maintain insurance as herein provided, the Indenture Trustee may at its option, upon
prior written notice to the Issuer, provide such insurance and, in such event, the Issuer
shall,



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upon demand from time to time reimburse the Indenture Trustee for the cost thereof
together with interest from the date of payment thereof at the Stated Rate on the Equipment
Notes, on the amount of the cost to the Indenture Trustee of such insurance which the Issuer
shall have failed to maintain. If after the Indenture Trustee has provided such insurance,
the Issuer then obtains the coverage provided for in Section 5.04(f) which was replaced by
the insurance provided by the Indenture Trustee, and the Issuer provides the Indenture
Trustee with evidence of such coverage reasonably satisfactory to the Indenture Trustee, the
Indenture Trustee shall cancel the insurance it has provided pursuant to the first sentence
of this Section 5.04(f)(ii). In such event, the Issuer shall reimburse the Indenture
Trustee for all costs to the Indenture Trustee of cancellation, including without limitation
any short rate penalty, together with interest from the date of the Indenture Trustee’s
payment thereof at the Stated Rate on the Equipment Notes. In addition, at any time the
Indenture Trustee may at its own expense carry insurance with respect to its interest in the
Portfolio Railcars, provided that such insurance does not interfere with the Issuer’s
ability to insure the Portfolio Railcars as required by this Section 5.04(f) or adversely
affect the Issuer’s insurance or the cost thereof, it being understood that all salvage
rights to each Portfolio Railcar shall remain with the Issuer’s insurers at all times. Any
insurance payments received from policies maintained by the Indenture Trustee pursuant to
the previous sentence shall be retained by the applicable Person obtaining such insurance
without reducing or otherwise affecting the Issuer’s obligations hereunder, other than with
respect to Portfolio Railcars) with respect to which such payments have been made.



          (g) No Accounts. Except as contemplated herein, the Issuer will not have an
interest in any deposit account or securities account (other than the Indenture Accounts and other
than any account which may be required to be established as a necessary consequence of or in order
to invest in or otherwise acquire a Permitted Investment) unless (i) any such further account and
the Issuer’s interest therein shall be further charged or otherwise secured in favor of the
Indenture Trustee for the benefit of the Secured Parties and (ii) any such further account is held
in the custody of and under the “control” (as such term is defined in the UCC) of the Indenture
Trustee.



          (h) Notices. If at any time any creditor of the Issuer seeks to enforce any
judgment or order of any competent court or other competent tribunal against any of the Collateral,
the Issuer shall (i) promptly give written notice to such creditor and to such court or tribunal of
the Indenture Trustee’s interests in the Collateral, (ii)
if at any time an examiner, administrator, administrative receiver, receiver, trustee,
custodian, sequestrator, conservator or other similar appointee (an “Insolvency Appointee”)
is appointed in respect of any secured creditor or any of their assets, promptly give notice to
such appointee of the Indenture Trustee’s interests in the Collateral and (iii) notify the
Indenture Trustee thereof in either case of clauses (i) and (ii) above. The Issuer will not
voluntarily appoint or cause to be appointed or commence any proceeding to appoint any Insolvency
Appointee over all or any of its property.



          (i) Compliance with Agreements. The Issuer will comply with and perform all
its obligations under the Indenture, the Issuer Documents and the other Operative Agreements to
which the Issuer is a party.



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          (j) Information. The Issuer will at all times give to the Indenture Trustee
such information as the Indenture Trustee may reasonably require for the purpose of the discharge
of the powers, rights, duties, authorities and discretions vested in it hereunder, under any other
Issuer Document or by operation of Applicable Law.



          (k) Further Assurances.




          (i) The Issuer will comply with all reasonable directions given to it by the
Indenture Trustee to perfect the Security Interests in the Collateral (except to the extent
provided in the Granting Clauses herein). The Issuer will execute such further documents
and do all acts and things as the Indenture Trustee may reasonably require at any time or
times to give effect to this Indenture, the Issuer Documents and the relevant Operative
Agreements.




          (ii) Without limiting the foregoing, from time to time, the Issuer shall
authorize and file such financing statements and cause to be authorized and filed such
continuation statements, and shall make or cause to be made such filings with the STB and
with the Registrar General of Canada and take or cause to be taken such similar actions as
are described in the Granting Clauses under “Priority”, all in such manner and in such
places as may be required by law (or deemed desirable by the Indenture Trustee) to fully
perfect, preserve, maintain and protect the security interest of the Indenture Trustee for
the benefit of the Secured Parties in the Portfolio Railcars, related Leases and other
Collateral granted hereby (including without limitation any such Portfolio Railcars acquired
by the Issuer from time to time after the Closing Date), including in the proceeds thereof.
The Issuer shall deliver (or cause to be delivered) to the Indenture Trustee file-stamped
copies of, or filing receipts for, any document filed as provided above, following such
filing in accordance herewith. In the event that the Issuer fails to perform its
obligations under this subsection, the Indenture Trustee may perform such obligations, at
the expense of the Issuer, and the Issuer hereby authorizes the Indenture Trustee and grants
to such persons an irrevocable power of attorney to take any and all steps in order to
perform such obligations in the Issuer’s own name and on behalf of the Issuer, as are
necessary or desirable, in the determination of the Indenture Trustee, as applicable.



          (l) Stamping of the Leases. Within thirty (30) days of the applicable
Delivery Date (or, in the case of a Future Lease, the date of origination of such Future Lease),
the Issuer will cause the Manager to stamp on or otherwise affix to each Rider evidencing the same,
the following legend:




     “This Lease is subject to a security interest in favor of Wilmington Trust
Company, as Indenture Trustee, pursuant to the Indenture dated as of November 5,
2009 between Trinity Rail Leasing VII LLC, and Wilmington Trust Company, as
Indenture Trustee.”



     Without limiting the generality of the foregoing, the Issuer will (i) execute and deliver to
the Indenture Trustee, on behalf of the Secured Parties, such financing or continuation statements
or continuation statements in lieu, or amendments thereto, and such other instruments or notices,



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as may be necessary or desirable, or as the Indenture Trustee may reasonably request, in order to
perfect and preserve the pledge, transfer, assignment, Security Interests granted or purported to
be granted hereby, (ii) if any Collateral shall be evidenced by a promissory note or other
instrument, deliver and pledge to the Indenture Trustee, on behalf of the Secured Parties, such
note or instrument, duly indorsed or accompanied by duly executed instruments of transfer or
assignment in blank and
undated, all in form and substance reasonably satisfactory to the Indenture Trustee, and (iii)
deliver to the Indenture Trustee, on behalf of the Secured Parties, promptly upon receipt thereof
all instruments representing or evidencing any of the Collateral, duly endorsed or accompanied by
duly executed instruments of transfer or assignment in blank and undated, all in form and substance
reasonably satisfactory to the Indenture Trustee.




          (m) No Effect on Security Interest. Except as otherwise provided in this
Indenture or other Operative Agreements, the Issuer will not agree to the amendment of any Issuer
Document unless the Indenture Trustee has confirmed to the Issuer that it has received from legal
counsel reasonably acceptable to it an opinion to the effect that such amendment will not result in
the Security Interests being prejudiced (the reasonable expenses of such opinion to be paid by the
Issuer).



          (n) Restrictions on Amendments to Assigned Agreements and Certain Other
Actions. (i) The Issuer will not take, or knowingly permit to be taken, any action which would
amend, terminate or discharge or prejudice the validity or effectiveness or priority of the
Security Interests or permit any party to any of the Issuer Documents whose obligations form part
of the security created by this Indenture to be released from such obligations except, in each case
as permitted or contemplated by this Indenture, or the other Issuer Documents or the Operative
Agreements, (ii) without the prior written consent of the Indenture Trustee (acting at the
Direction of the Requisite Majority), the Issuer shall not, directly or indirectly, (A) cancel or
terminate, or consent to or accept any cancellation or termination of, or amend, modify or change
in any manner, any Assigned Agreement or any term or condition thereof or (B) waive any default
under, or any breach of or noncompliance with any term or condition of, any Assigned Agreement or
authorize or approve, or consent to, any of the foregoing and (iii) the Issuer will not knowingly
take, or knowingly permit to be taken, any action which, other than the performance of its
obligations under the Issuer Documents and the Operative Agreements, would reasonably be expected
to result in the lowering or withdrawal of the then current rating of any Equipment Note.



          (o) Subsidiaries. Except with the consent of the Indenture Trustee (acting
at the Direction of the Requisite Majority), the Issuer will not have or establish any
Subsidiaries.



          (p) Restriction on Asset Dealings. The Issuer shall not sell, transfer,
release or otherwise dispose of any of, or grant options, warrants or other rights with respect to,
any of its assets to any Person other than as expressly permitted in the Operative Agreements.



          (q) Organizational Documents. Subject to Section 5.02(j), the Issuer shall
not amend, modify or supplement its organizational documents or change its jurisdiction of
organization without the consent of Indenture Trustee (acting at the Direction of the Requisite
Majority), and such consent shall not be unreasonably withheld.



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          (r) Management Agreement and Administrative Services Agreement. The Issuer
shall at all times be a party to the Management Agreement and shall, if necessary, take any steps
required of it in connection with the appointment of any Successor Manager thereunder. The Issuer
shall at all times be a party to the Administrative Services Agreement or a substitute agreement
substantially similar thereto.



          (s) Insurance Agreement. The Issuer shall at all times be a party to the
Insurance Agreement and shall, if necessary, take any steps required of it in connection with the
appointment of any Successor Insurance Manager thereunder.



          (t) Condition. The Issuer, at its own cost and expense, shall maintain,
repair and keep each Portfolio Railcar, and cause the Manager under the Management Agreement to
maintain, repair and keep each Portfolio Railcar, (i) according to Prudent Industry Practice and in
all material respects, in good working order, and in good physical condition for railcars of a
similar age and usage, normal wear and tear excepted, (ii) in a manner in all material respects
consistent with maintenance practices used by the Manager, in respect of railcars owned, leased or
managed by the Manager similar in type to such Portfolio Railcar or with respect to any Portfolio
Railcar that is a Net Lease, maintenance practices used by the applicable Lessee, in respect of
railcars similar in type to such Portfolio Railcar used by such Lessee on its domestic routes in
the United States; (provided, however that after the
return to the Manager of any Portfolio Railcar which was subject to a Net Lease immediately
prior to such return, such Portfolio Railcar shall be maintained and repaired in all material
respects in a manner consistent with maintenance practices used by the Manager in respect of
railcars owned, leased or managed by the Manager similar in type to such Portfolio Railcar), (iii)
in accordance with all manufacturer’s warranties in effect but only to the extent that the lack of
compliance therewith would reasonably be expected to adversely affect the coverage thereunder and
in accordance with all applicable provisions, if any, of insurance policies required to be
maintained pursuant to Section 5.04 and (iv) in compliance in all material respects with any
applicable laws and regulations from time to time in effect, including, without limitation, the
Field Manual of the AAR, FRA rules and regulations and Interchange Rules as they apply to the
maintenance and operation of the Portfolio Railcars in interchange regardless of upon whom such
applicable laws and regulations are nominally imposed; provided, however, that, so long as the
Manager or, with respect to any Portfolio Railcar subject to a Lease which is a Net Lease, the
applicable Lessee, is similarly contesting such law or regulation with respect to all other similar
equipment owned or operated by Manager or, with respect to any Portfolio Railcar subject to a Net
Lease, the applicable Lessee, the Issuer (or such Lessee) may, in good faith and by appropriate
proceedings diligently conducted, contest the validity or application of any such standard, rule or
regulation in any manner that does not (w) materially interfere with the use, possession, operation
or return of any of the Portfolio Railcars, (x) materially adversely affect the rights or interests
of the Indenture Trustee in the Portfolio Railcars, (y) expose any Secured Party or the Indenture
Trustee to criminal sanctions or (z) violate any maintenance requirements contained in any
insurance policy required to be maintained by the Issuer under this Indenture if such violation
would reasonably be expected to adversely affect the coverage thereunder; provided further, that
the Issuer shall promptly notify the Indenture Trustee in reasonable detail of any such contest
upon its or the Manager’s becoming aware thereof. In no event shall the Issuer discriminate in any
material respect as to the use or maintenance of any Portfolio Railcar (including the periodicity
of maintenance or recordkeeping in respect of such Portfolio Railcar) as compared to



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equipment of a similar nature which the Manager owns or manages. The Issuer will maintain in all material
respects all records, logs and other materials required by relevant industry standards or any
governmental authority having jurisdiction over the Portfolio Railcars required to be maintained in
respect of any Portfolio Railcar.




          (u) [Reserved].



          (v) Use. The Issuer shall be entitled to the possession of the Portfolio
Railcars and to the use of the Portfolio Railcars by it or any Affiliate in the United States and
subject to the remaining provisions of this subsection, Canada and Mexico, only in the manner for
which it was designed and intended and so as to subject it only to ordinary wear and tear. In no
event shall the Issuer use, store or permit the use or storage of any Portfolio Railcar in any
jurisdiction not included in the insurance coverage required by Section 5.04(f). The Portfolio
Railcars shall be used primarily on domestic routes in the United States and on routes in Canada,
and in no event shall the mileage usage of the Portfolio Railcars in interchange within Mexico
exceed twenty (20)% of the total mileage usage of the Portfolio Railcars in interchange in the
aggregate (as determined by mileage records and measured at the end of each calendar year).



          (w) Custody of Portfolio Leases. Promptly after entering into a Future
Lease, the Issuer shall deliver a Rider constituting a Chattel Paper Original to the Indenture
Trustee in accordance with the provisions hereof.



          (x) Portfolio Railcar Total Loss. In the event that any Portfolio Railcar
shall suffer a Total Loss, the Issuer shall (or shall cause the Manager to) promptly and fully
inform the Indenture Trustee of such Total Loss.



          (y) Certain Reports. No later than ten Business Days following April 30,
2010 (or December 31, 2009 with respect to clause (iii) below), and no later than ten Business Days
following each April 30 (or each March 31, June 30, September 30 and December 31, with respect to
clause (iii) below) thereafter, the Issuer will furnish (or cause the Manager under the Management
Agreement to furnish) to the Indenture Trustee and each Rating Agency an accurate statement, as of
the preceding December 31 (or as of the preceding calendar quarter with respect to clause (iii)
below) (i) showing the amount, description and reporting marks of the Portfolio Railcars, the
amount, description and reporting marks of all Portfolio Railcars that may have suffered a Total
Loss during the twelve months ending on such December 31 (or since the Closing Date, in the case of
the first such statement), and
such other information regarding the condition or repair of the Portfolio Railcars as the
Indenture Trustee may reasonably request, (ii) stating that in the case of all Portfolio Railcars
repainted during the period covered by such statement, the markings required by Section 2.2(ii) of
the Management Agreement shall have been preserved or replaced, (iii) showing the percentage of use
in Canada and Mexico based on the total mileage traveled by the Portfolio Railcars for the prior
calendar quarter as reported to the Manager by railroads (or Lessees in the case of Net Leases, as
applicable) and (iv) stating that the Issuer is not aware of any condition of any Portfolio Railcar
which would cause such Portfolio Railcar not to comply in any material respect with the rules and
regulations of the FRA and the interchange rules of the Field Manual of the AAR as they apply to
the maintenance and operation of the Portfolio Railcars in interchange and any other requirements
hereunder.



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          (z) Inspection.




          (i) Upon the occurrence of an Event of Default or a Manager Termination
Event, the Indenture Trustee, at the Direction of the Requisite Majority, together with the
agents, representatives, accountants and legal and other advisors of each of the foregoing
(collectively, the “Inspection Representatives”), shall have the right to (A)
conduct a field examination of a reasonable representative sample of the Portfolio Railcars,
which may not in any event in the first instance exceed 100 Portfolio Railcars (each such
inspection, a “Unit Inspection”), (B) (I) inspect all documents (the “Related
Documents”), including, without limitation, all related Leases, insurance policies,
warranties or other agreements, relating to the Portfolio Railcars and the other Collateral
(each such inspection, a “Related Document Inspection”) and (II) inspect each of the
Issuer’s and the Manager’s books, records and databases (which shall include reasonable
access to the Issuer’s and the Manager’s computers and computer records to the extent
necessary to determine compliance with the Operative Agreements) (collectively, the
“Books and Records”) with respect to the Portfolio Railcars and the other Collateral
and the Related Documents (including without limitation data supporting all reporting
requirements under the Operative Agreements) (each such inspection, a “Book and Records
Inspection”) and (C) discuss (I) the affairs, finances and accounts of the Issuer (with
respect to itself) and the Manager (with respect to itself and the Issuer) and (II) the
Portfolio Railcars and the other Collateral, the Related Documents and the Books and
Records, in each case with the principal executive officer and the principal financial
officer of each of the Issuer and the Manager, as applicable (the foregoing clauses (I) and
(II) a “Company Inspection”) the Unit Inspections, the Related Documents
Inspections, the Books and Records Inspections and the Company Inspections described in
clauses (A), (B) and (C), collectively, the “Inspections”).




          (ii) All Inspections shall be at the sole cost and expense of the Issuer
(including the reasonable legal and accounting fees, costs and expenses incurred by the
Indenture Trustee, and its Inspection Representatives). All Inspections shall be conducted
upon reasonable request and notice to the Issuer (with respect to itself) and the Manager
(with respect to itself and the Issuer) and shall (A) be conducted during normal business
hours, (B) be subject to the Issuer’s and the Manager’s customary security procedures, if
any, and (C) not unreasonably disrupt the Issuer’s or the Manager’s business.




          (iii) If in connection with or as a result of the initial Railcar Inspection,
the Indenture Trustee determines, in its sole discretion, that an Inspection Issue (as
defined below) has occurred, then the Indenture Trustee shall have the right to conduct
additional Inspections from time to time consisting of additional samplings of Railcars in
numbers that the Trustee or its Inspection Representative determines to be a reasonable
sampling (each, an “Additional Inspection” and collectively, “Additional Inspections”)
sufficient to confirm the scope of any such Inspection Issues. “Inspection Issue” means the
discovery that a material portion of the Portfolio Railcars inspected are not being used or
maintained in a manner that complies with the requirements of the Indenture.



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     Without prejudice to the right to conduct Inspections, all parties granted inspection rights
hereunder shall confer with a view toward coordinating their conduct with respect to the
Inspections in order to minimize the costs thereof and business disruption attendant thereto.



          (aa) Modifications.




          (i) Required Modifications. In the event a Required Modification to
a Portfolio Railcar is required, the Issuer agrees to make or cause to be made such Required
Modification at its own expense; provided, that the Issuer (or applicable Lessee) may, in
good faith and by appropriate proceedings diligently conducted, contest the validity or
application of the law, rule or regulation requiring such Required Modification in any
manner that does not (w) materially interfere with the use, possession, operation,
maintenance or return of any Portfolio Railcar, (x) materially adversely affect the rights
or interests of the Issuer or the Indenture Trustee in the Portfolio Railcars, (y) expose
the Issuer or the Indenture Trustee to criminal sanctions, or (z) violate any maintenance
requirements contained in any insurance policy required to be maintained by the Issuer under
this Indenture if such violation would reasonably be expected to adversely affect the
coverage thereunder; provided further, that the Issuer shall notify (or cause to be
notified) the Indenture Trustee thereof, which notice shall also set forth the time period
for the making of such Required Modification and the Issuer’s or Manager’s reasonable
estimate of the cost thereof.




          (ii) Optional Modifications. The Issuer at any time may or may
permit a Lessee to, in its discretion and at its own or such Lessee’s cost and expense,
modify, alter or improve any Portfolio Railcar in a manner which is not a Required
Modification; provided that (A) no such optional modification shall diminish the fair market
value, utility or remaining economic useful life of such Portfolio Railcar below the fair
market value, utility or remaining economic useful life thereof immediately prior to such
optional modification, in more than a de minimis respect, assuming such Portfolio Railcar
was then at least in the condition required to be maintained by the terms of this Indenture
and (B) the Issuer, or the Manager on its behalf, shall conclude in good faith that the
proposed optional modification is likely to enhance the marketability of the Portfolio
Railcar (or such optional modification is requested by a Lessee).



ARTICLE VI




THE INDENTURE TRUSTEE



     Section 6.01
Acceptance of Trusts and Duties. The duties and responsibilities of the Indenture Trustee shall be as expressly set forth herein, and no implied
covenants or obligations shall be read into this Indenture against the Indenture Trustee. The
Indenture Trustee accepts the trusts hereby created and applicable to it and agrees to perform the
same but only upon the terms of this Indenture and agrees to receive and disburse all moneys
received by it in accordance with the terms hereof. The Indenture Trustee in its individual
capacity shall not be answerable or accountable under any circumstances, except for its own willful
misconduct or negligence or bad faith or breach of its representations, warranties and/or covenants
and the Indenture Trustee shall



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not be liable for any action or inaction of the Issuer or any other
parties to any of the Operative Agreements.




     Section 6.02
Absence of Duties. The Indenture Trustee shall have no duty to
ascertain or inquire as to the performance or observance of any covenants, conditions or agreements
on the part of any Lessee. Notwithstanding the foregoing, the Indenture Trustee, upon written
request, shall furnish to any Noteholder, promptly upon receipt thereof, duplicates or copies of
all reports, Notices, requests, demands, certificates, financial statements and other instruments
furnished to the Indenture Trustee under this Indenture.



     Section 6.03
Representations or Warranties. The Indenture Trustee does not
make and shall not be deemed to have made any representation or warranty as to the validity,
legality or enforceability of this Indenture, the Equipment Notes, any other securities or any
other document or instrument or as to the correctness of any statement contained in any thereof,
except that the Indenture Trustee in its individual capacity hereby represents and warrants (i)
that each such specified document to which it is a party has been or will be duly executed and
delivered by one of its officers who is and will be duly authorized to execute and deliver such
document on its behalf, and (ii) this Indenture is the legal, valid and binding obligation of WTC,
enforceable against WTC in accordance with its terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights
generally.



     Section 6.04
Reliance; Agents; Advice of Counsel. The Indenture Trustee
shall incur no liability to anyone acting upon any signature, instrument, notice, resolution,
request, consent, order, certificate, report, opinion, bond or other document or paper believed by
it to be genuine and believed by it to be signed by the proper party or parties. The Indenture
Trustee may accept a copy of a resolution of, in the case of the Issuer, and in the case of any
other party to any Operative Agreement, the governing body of such Person, certified in an
accompanying Officer’s Certificate as duly adopted and in full force and effect, as conclusive
evidence that such resolution has been duly adopted and that the same is in full force and effect.
As to any fact or matter the manner of ascertainment of which is not specifically described herein,
the Indenture Trustee shall be entitled to receive and may for all purposes hereof conclusively
rely on a certificate, signed by an officer of any duly authorized Person, as to such fact or
matter, and such certificate shall constitute full protection to the Indenture Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon. The Indenture Trustee
shall furnish to the Manager or the Administrator upon written request such information and copies
of such documents as the Indenture Trustee may have and as are necessary for the Manager or the
Administrator to perform its duties under Articles II and III hereof. The Indenture Trustee shall
assume, and shall be fully protected in assuming, that the Issuer is authorized by its
constitutional documents to enter into this Indenture and to take all action permitted to be taken
by it pursuant to the provisions hereof, and shall not inquire into the authorization of the Issuer
with respect thereto.



     The Indenture Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within its rights or powers or for any action it takes
or omits to take in accordance with the Direction of the Holders in accordance herewith relating to
the time, method and place of conducting any proceeding for any remedy available to the



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Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.




     The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the
Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for
the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it
hereunder.



     The Indenture Trustee may consult with counsel as to any matter relating to this Indenture and
any Opinion of Counsel or any advice of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder in good faith and
in accordance with such advice or Opinion of Counsel.



     The Indenture Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in
relation hereto, at the request, order or Direction of any of the Holders, pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the Indenture Trustee
security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby.



     The Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if there is reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Indenture shall in any event require the Indenture Trustee
to perform, or be responsible or liable for the manner of performance of, any obligations of the
Issuer or the Administrator under this Indenture or any of the Operative Agreements.



     The Indenture Trustee shall not be liable for any losses or Taxes (except for Taxes relating
to any compensation, fees or commissions of any entity acting in its capacity as Indenture Trustee
hereunder) or in connection with the selection of Permitted Investments or for any investment
losses resulting from Permitted Investments.



     When the Indenture Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 4.01(f) or 4.01(g) hereof, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are intended to constitute expenses
of administration under any bankruptcy law or law relating to creditors’ rights generally.



     The Indenture Trustee shall not be charged with knowledge of an Event of Default unless a
Responsible Officer of the Indenture Trustee obtains actual knowledge of such event or the
Indenture Trustee receives written notice of such event from the Issuer, the Administrator or
Noteholders owning Equipment Notes aggregating not less than 10% of the Outstanding Principal
Balance of the Equipment Notes.



     The Indenture Trustee shall have no duty to monitor the performance of the Issuer, the
Manager, the Administrator or any other party to the Operative Agreements, nor shall it have any




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liability in connection with the malfeasance or nonfeasance by such parties. The Indenture Trustee
shall have no liability in connection with compliance by the Issuer, the Manager, the Administrator
or any Lessee under a Lease with statutory or regulatory requirements related to any Railcar or any
Lease. The Indenture Trustee shall not make or be deemed to have made any representations or
warranties with respect to any Railcar or any Lease or the validity or sufficiency of any
assignment or other disposition of any Railcar or any Lease.




     The Indenture Trustee shall not be liable for any error of judgment reasonably made in good
faith by an officer or officers of the Indenture Trustee, unless it shall be determined by a court
of competent jurisdiction in a non-appealable judgment that the Indenture Trustee was negligent in
making such judgment.



     Except as expressly set forth in the Operative Agreements, the Indenture Trustee shall not be
bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or
other paper document, unless any such Operative Agreement directs the Indenture Trustee to make
such investigation.



     The Indenture Trustee shall have no obligation to invest and reinvest any cash held in the
Indenture Accounts in the absence of timely and specific written investment direction from the
Administrator or as expressly provided herein. In no event shall the Indenture Trustee be liable
for the selection of investments or for investment losses incurred thereon in accordance with the
Operative Agreements. The Indenture Trustee shall have no liability in respect of losses incurred
as a result of the liquidation of any investment prior to its stated maturity in accordance with
the Operative Agreements or by any other Person or the failure of the Administrator to provide
timely written investment direction.



     Section 6.05 Not Acting in Individual Capacity. The Indenture Trustee acts hereunder
solely as trustee unless otherwise expressly provided; and all Persons, other than the Noteholders
to the extent expressly provided in this Indenture, having any claim against the Indenture Trustee
by reason of the transactions contemplated hereby shall look, subject to the lien and priorities of
payment as herein provided, only to the property of the Issuer for payment or satisfaction thereof.



     Section 6.06 No Compensation from Noteholders. The Indenture Trustee agrees
that it shall have no right against the Noteholders for any fee as compensation for its services hereunder.



     Section 6.07 Notice of Defaults. As promptly and soon as practicable after, and in
any event within thirty (30) days after, the occurrence of any Default hereunder, the Indenture
Trustee shall transmit by mail to the Issuer and the Noteholders holding Equipment Notes, notice of
such Default hereunder actually known to a Responsible Officer of the Indenture Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in the case of a
Default on the payment of the interest, principal, or premium, if any, on any Equipment Note, the
Indenture Trustee shall be fully protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Indenture Trustee in good faith determines that the
withholding of such notice is in the interests of the Noteholders .



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     Section 6.08 Indenture Trustee May Hold Securities.
The Indenture Trustee, any Paying Agent, the Note Registrar or any of their Affiliates or any
other agent in their respective individual or any other capacity, may become the owner or pledgee
of securities and, may otherwise deal with the Issuer with the same rights it would have if it were
not the Indenture Trustee, Paying Agent, Note Registrar or such other agent.




     Section 6.09 Corporate Trustee Required; Eligibility. There shall at all times be an
Indenture Trustee which shall meet the Eligibility Requirements. If such corporation publishes
reports of conditions at least annually, pursuant to law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then for the purposes of
this Section 6.09, the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of conditions so published. In
case at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions
of this Section 6.09 to act as Indenture Trustee, the Indenture Trustee shall resign immediately as
Indenture Trustee in the manner and with the effect specified in Section 7.01 hereof.



     Section 6.10 Reports by the Issuer. The Issuer shall furnish to the Indenture
Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal
executive officer, principal accounting officer or principal financial officer of the
Administrator, as applicable, as to his or her knowledge of the Issuer’s compliance with all
conditions and covenants under this Indenture (it being understood that for purposes of this
Section 6.10, such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture).



     Section 6.11 Compensation. The Issuer covenants and agrees to pay to the Indenture
Trustee from time to time, and the Indenture Trustee shall be entitled to, the fees and expenses
separately agreed in writing between the Issuer and the Indenture Trustee, and will further pay or
reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Indenture Trustee in accordance with any of the provisions hereof
or any other documents executed in connection herewith (including the reasonable compensation and
the reasonable expenses and disbursements of its counsel and of all persons not regularly in its
employ).



     Section 6.11 Certain Rights of the Requisite Majority.



          Each of the Indenture Trustee and by its acceptance of the Equipment Notes, the Noteholders,
hereby agrees that, if the Indenture Trustee shall fail to act in accordance with Direction by the
Requisite Majority (with respect to the Equipment Notes as a whole) at any time at which it is so
required to act hereunder or under any other Operative Agreement, then the Requisite Majority shall
be entitled to take such action directly in its own capacity or on behalf of the Indenture Trustee.
If the Indenture Trustee fails to act in accordance with Direction by the Requisite Majority when
so required to act under any Operative Agreement, then the Indenture Trustee shall, upon the
further Direction of the Requisite Majority, irrevocably appoint the Requisite Majority, or an
authorized agent thereof, with full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the name of the Indenture
Trustee or its own name, to take any and all actions that the Indenture Trustee is authorized
to





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take under any Operative Agreement, to the extent the Indenture Trustee has failed to take such
action when and as required under such Operative Agreement.




ARTICLE VII




SUCCESSOR TRUSTEES



     Section 7.01 Resignation and Removal of Indenture Trustee. The Indenture Trustee may
resign as Indenture Trustee with respect to the Equipment Notes at any time without cause by giving
at least sixty (60) days’ prior written notice to the Issuer, the Manager, the Administrator and
the Holders, provided that the Indenture Trustee shall continue to serve as Indenture Trustee until
a successor has been appointed pursuant to Section 7.02 hereof. The Requisite Majority may at any
time remove the Indenture Trustee without cause by an instrument in writing delivered to the
Issuer, the Manager, the Administrator and the Indenture Trustee being removed. In addition, the
Issuer may remove the Indenture Trustee if: (i) such Indenture Trustee fails to comply with Section
7.02(d) hereof, (ii) such Indenture Trustee is adjudged a bankrupt or an insolvent, (iii) a
receiver or public officer takes charge of such Indenture Trustee or its property or (iv) such
Indenture Trustee becomes incapable of acting. References to the Indenture Trustee in this
Indenture include any successor Indenture Trustee appointed in accordance with this Article VII.



     Section 7.02 Appointment of Successor. (a) In the case of the resignation or removal
of the Indenture Trustee under Section 7.01 hereof, the Issuer shall promptly appoint a successor
Indenture Trustee; provided that the Requisite Majority may appoint, within one (1) year after such
resignation or removal, a successor Indenture Trustee which may be other than the successor
Indenture Trustee appointed by the Issuer, and such successor Indenture Trustee appointed by the
Issuer shall be superseded by the successor Indenture Trustee so appointed by the Requisite
Majority. If a successor Indenture Trustee shall not have been appointed and accepted its
appointment hereunder within sixty (60) days after the Indenture Trustee gives notice of
resignation or is removed, the retiring or removed Indenture Trustee, the Issuer, the
Administrator, the Manager or the Requisite Majority may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee. Any successor Indenture Trustee
so appointed by such court shall immediately and without further act be superseded by any successor
Indenture Trustee appointed as provided in the first sentence of this paragraph within one (1) year
from the date of the appointment by such court.



          (b) Any successor Indenture Trustee, however appointed, shall promptly execute and deliver to
the Issuer, the Manager, the Administrator and the predecessor Indenture Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the predecessor Indenture
Trustee shall become effective and such successor Indenture Trustee, without further act, shall
become vested with all the estates, properties, rights, powers, duties and trusts of such
predecessor Indenture Trustee hereunder in the trusts hereunder applicable to it
with like effect as if originally named the Indenture Trustee herein; provided that, upon the
written request of such successor Indenture Trustee, such predecessor Indenture Trustee shall, upon
payment of all amounts due and owing to it, execute and deliver an instrument transferring to such
successor Indenture Trustee, upon the trusts herein expressed applicable to it, all the



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estates,
properties, rights, powers and trusts of such predecessor Indenture Trustee, and such predecessor
Indenture Trustee shall duly assign, transfer, deliver and pay over to such successor Indenture
Trustee all moneys or other property then held by such predecessor Indenture Trustee hereunder
solely for the benefit of the Equipment Notes.




          (c) If a successor Indenture Trustee is to be appointed with respect to only a part of the
predecessor Indenture Trustee duties hereunder, the Issuer, the predecessor Indenture Trustee and
the successor Indenture Trustees shall execute and deliver an indenture supplemental hereto which
shall contain such provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Indenture Trustee as to which the predecessor
Indenture Trustee is not retiring shall continue to be vested in the predecessor Indenture Trustee,
and shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the Equipment Notes hereunder by more than one Indenture
Trustee.




          (d) Each Indenture Trustee shall be an Eligible Institution and shall meet the Eligibility
Requirements, if there be such an institution willing, able and legally qualified to perform the
duties of an Indenture Trustee hereunder; provided that the Rating Agencies shall receive notice of
any replacement Indenture Trustee.




          (e) Any corporation into which the Indenture Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Indenture Trustee shall be a party, or any corporation to which substantially all the
business of the Indenture Trustee may be transferred, shall, subject to the terms of paragraph (d)
of this Section, be the Indenture Trustee under this Indenture without further act.




ARTICLE VIII




INDEMNITY



     Section 8.01
Indemnity. The Issuer shall indemnify the Indenture Trustee (and its
officers, directors, employees and agents) for, and hold it harmless from and against, any loss,
liability, claim, obligation, damage, injury, penalties, actions, suits, judgments or expense
(including attorney’s fees and expenses) incurred by it without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of this Indenture and
its duties under this Indenture and the Equipment Notes, including the costs and expenses of
defending itself against any claim or liability and of complying with any process served upon it or
any of its officers in connection with the exercise or performance of any of its powers or duties
and hold it harmless against, any loss, liability or reasonable expense incurred without negligence
or bad faith on its
part, arising out of or in connection with actions taken or omitted to be taken in reliance on
any Officer’s Certificate furnished hereunder, or the failure to furnish any such Officers’
Certificate required to be furnished hereunder. The Indenture Trustee shall notify the Holders,
the Issuer and the Manager and, in the case of any such claim in excess of 5% of the Adjusted Value
of the Portfolio Railcars, the Rating Agencies, promptly of any claim asserted against the
Indenture Trustee for which it may seek indemnity; provided, however, that failure to



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provide such
notice shall not invalidate any right to indemnity hereunder except to the extent the Issuer is
prejudiced by such delay. The Issuer shall defend the claim and the Indenture Trustee shall
cooperate in the defense (unless the Indenture Trustee determines that an actual or potential
conflict of interest exists, in which case the Indenture Trustee shall be entitled to retain
separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel). The
Issuer need not pay for any settlements made without its consent; provided that such consent shall
not be unreasonably withheld. The Issuer need not reimburse any expense or indemnity against any
loss or liability incurred by the Indenture Trustee through negligence or bad faith.



     Section 8.02 Noteholders’ Indemnity. The Indenture Trustee shall be entitled, subject
to such Indenture Trustee’s duty during a default to act with the required standard of care, to be
indemnified by the Holders of the Equipment Notes before proceeding to exercise any right or power
under this Indenture or the Management Agreement at the request or Direction of such Holders.




	 	 	Section 8.03 Survival. The provisions of Sections 8.01 and 8.02 hereof shall
survive the termination of this Indenture or the earlier resignation or removal of the Indenture
Trustee.





ARTICLE IX




SUPPLEMENTAL INDENTURES



     Section 9.01 Supplemental Indentures Without the Consent of the Noteholders.



          (a) Without the consent of any Holder and based on an Opinion of Counsel in form and substance
reasonably acceptable to the Indenture Trustee to the effect that such Supplement is for one of the
purposes set forth in clauses (i) through (vi) below, the Issuer and the Indenture Trustee, at any
time and from time to time, may enter into one or more Supplements for any of the following
purposes:





          (i) to add to the covenants of the Issuer in this Indenture for the benefit of the
Holders of the Equipment Notes then Outstanding, or to surrender any right or power
conferred upon the Issuer in this Indenture;




          (ii) to cure any ambiguity, to correct or supplement any provision in this Indenture
which may be inconsistent with any other provision in this Indenture;




          (iii) to correct or amplify the description of any property at any time subject to the
Encumbrance of this Indenture, or to better assure, convey and confirm unto the Indenture
Trustee any property subject or required to be subject to the Encumbrance of this Indenture,
or to subject additional property to the Encumbrance of this Indenture;




          (iv) to add additional conditions, limitations and restrictions thereafter to be
observed by the Issuer;



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          (v) if required, to convey, transfer, assign, mortgage or pledge any additional
property to or with the Indenture Trustee; or




          (vi) to evidence the succession of the Indenture Trustee.



          (b) No Supplement shall be entered into under this Section 9.01 unless each Rating Agency
shall have received prior written notice thereof and, except as set forth in the proviso at the end
of this sentence, the Issuer shall have obtained a Rating Agency Confirmation in respect thereof;
provided, that no such Rating Agency Confirmation shall be required if such Supplement shall have
been entered into by the Indenture Trustee at the Direction of a Requisite Majority.




     Section 9.02 Supplemental Indentures with the Consent of Noteholders.



          (a) With the consent evidenced by a Direction of a Requisite Majority, the Issuer and the
Indenture Trustee may enter into a Supplement hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of modifying in
any manner the rights of the Noteholders under this Indenture; provided, however, that no such
Supplement shall, without the prior written Direction of the Holders (or beneficial owners)
affected thereby and the Direction of a Requisite Majority for the Equipment Notes then
Outstanding:





          (i) reduce the principal amount of any Equipment Note or the rate of interest thereon,
change the priority of any payments required pursuant to this Indenture or amend or
otherwise modify the Flow of Funds except as permitted pursuant to Section 9.02(b),
or the date on which, or the amount of which, or the place of payment where, or the coin or
currency in which, any Equipment Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the Final
Maturity Date thereof;




          (ii) reduce the percentage of Holders of Outstanding Equipment Notes required for (x)
the consent required for delivery of any Supplement to this Indenture, (y) the consent
required for any waiver of compliance with certain provisions of this Indenture or certain
Events of Default hereunder and their consequences as provided for in this Indenture or (z)
the consent required to waive any payment default on the Equipment Notes;




          (iii) modify any provision relating to any Supplement or this Indenture which specifies
that such provision cannot be modified or waived without the Direction of the Holder of each
Outstanding Equipment Note affected thereby;




          (iv) modify or alter the definition of the term “Requisite Majority” (including,
without limitation, the percentages therein);




          (v) modify or alter the provisions of this Indenture relating to mandatory prepayments;



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          (vi) permit the creation of any Encumbrance ranking prior to or on a parity with the
Encumbrance of this Indenture with respect to any part of the Collateral or terminate the
Encumbrance of this Indenture on any property at any time subject hereto or deprive the
Holder of any Equipment Note of the security afforded by the Encumbrance of this Indenture;
or




          (vii) modify any of the provisions of this Indenture in such a manner as to affect the
amount or timing of any payments of interest or principal due on any Equipment Note.


Prior to the execution of any Supplement issued pursuant to this Section 9.02, the Issuer
shall provide a written notice to each Rating Agency setting forth in general terms the substance
of any such Supplement.




          (b) Notwithstanding the foregoing provisions of this Section 9.02, the Issuer, the
Indenture Trustee and, by its acceptance of an Equipment Note, each Noteholder, hereby irrevocably
agrees that, in connection with the appointment and engagement of a Successor Manager and as
contemplated in the last paragraph of the Granting Clauses hereof, the Indenture Trustee acting at
the Direction of the Requisite Majority acting in their sole discretion shall have the right,
without the consent of the Issuer, any Noteholder or any other Person, to increase the Management
Fee and/or pay to the Manager an incentive fee, add the payment of such amounts to and/or change
the priority of distribution of such amounts in, the Flow of Funds and amend this Indenture to the
extent necessary to effectuate the foregoing.




          (c) Promptly after the execution by the Issuer and the Indenture Trustee of any Supplement
pursuant to this Section, the Issuer shall mail to the Administrator, the Indenture Trustee and
each Rating Agency, a notice setting forth in general terms the substance of such Supplement,
together with a copy of the text of such Supplement. Any failure of the Issuer to mail such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any
such Supplement.




ARTICLE X




MODIFICATION AND WAIVER



     Section 10.01 Modification and Waiver with Consent of Holders.



     In the event that the Indenture Trustee receives a request for its consent to an amendment,
modification or waiver under this Indenture, the Equipment Notes or any Operative Agreement
relating to the Equipment Notes, the Indenture Trustee shall mail a notice of such proposed
amendment, modification or waiver to each Noteholder asking whether or not to consent to such
amendment, modification or waiver if such Noteholder’s consent is required pursuant to this
Indenture; provided that any amendment, modification or waiver of the provisions described in
Section 9.02 hereof is not permitted without the consent of each Noteholder of any
Equipment Notes affected thereby; provided further, however, that any Event of Default may be
waived in accordance with Section 4.04 hereof. The foregoing, however, shall not prevent the
Issuer from



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amending any Lease of a Railcar, provided that such amendment is otherwise permitted by
this Indenture and the Management Agreement.



     It shall not be necessary for the consent of the Holders under this Section 10.01 to
approve the particular form of any proposed amendment, modification or waiver, but it shall be
sufficient if such consent approves the substance thereof. Any such modification approved by the
Direction of a Requisite Majority and as to which Rating Agency Confirmation is given will be
binding on all Noteholders.



     The Issuer shall give each Rating Agency prior notice of any amendment under this Section
10.01 and any amendments of its constitutive documents by the Issuer, and, after an amendment under
this Section 10.01 becomes effective, the Issuer shall mail to the Holders and the Rating
Agencies a notice briefly describing such amendment. Any failure of the Issuer to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such
amendment.



     After an amendment under this Section 10.01 becomes effective, it shall bind every
Holder, whether or not notation thereof is made on any Equipment Note held by such Holder.



     Section 10.02 Modification Without Consent of Holders.



     Subject to Section 9.01 hereof, the Indenture Trustee may agree, without the consent
of any Noteholder, to any modification (other than those referred to in Section 10.01) of
any provision of any Operative Agreement or of the relevant Equipment Notes to correct a manifest
error or an error which is of a formal, minor or technical nature. Any such modification shall be
notified to the Holders as soon as practicable thereafter and shall be binding on all the Holders.



     Section 10.03 Subordination and Priority of Payments.



     The subordination provisions contained in the Flow of Funds and Article XI hereof may not be
amended or modified without the consent of each Noteholder of the Equipment Notes. In no event
shall the provisions set forth in the Flow of Funds relating to the priority of the Service
Provider Fees and Operating Expenses be amended or modified. The foregoing sentences in each
case are subject to the provisions of Section 9.02(b).



     Section 10.04 Execution of Amendments by Indenture Trustee.



     In executing, or accepting the additional trusts created by, any amendment or modification to
this Indenture permitted by this Article X or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Indenture. The Indenture Trustee
may, but shall not be obligated to, enter into any such amendment which affects the Indenture
Trustee’s own rights, duties or immunities under this Indenture or otherwise.



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ARTICLE XI




SUBORDINATION



     Section 11.01 Subordination.



          (a) Each Noteholder and Service Provider agrees that its claims against the Issuer for payment
of amounts are subordinate to any claims ranking in priority thereto as set forth in the Flow of
Funds hereof, including any post-petition interest (each such prior claim, a “Senior Claim”), which
subordination shall continue until the holder of such Senior Claim (a “Senior Claimant”), or the
Indenture Trustee on its behalf, has received the full cash amount of such Senior Claim. Each such
Person is also obligated to hold for the benefit of the Senior Claimant any amounts received by
such Person which, under the terms of this Indenture, should have been paid to or on behalf of the
Senior Claimant and to pay over such amounts to the Indenture Trustee for application as provided
in the Flow of Funds.




          (b) If any Senior Claimant receives any payment in respect of any Senior Claim which is
subsequently invalidated, declared preferential, set aside and/or required to be repaid to a
trustee, receiver or other party, then, to the extent such payment is so invalidated, declared
preferential, set aside and/or required to be repaid, such Senior Claim shall be revived and
continue in full force and effect, and shall be entitled to the benefits of this Article XI, all as
if such payment had not been received.




          (c) Each Noteholder, by its acceptance of an Equipment Note, and each other payee pursuant to
the Flow of Funds, by entering into the Operative Agreement to which it is a party, authorizes and
expressly directs the Indenture Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XI, and appoints the Indenture
Trustee its attorney-in-fact for such purposes, including, in the event of any dissolution, winding
up, liquidation or reorganization of the Issuer (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of creditors or
otherwise) any actions tending towards liquidation of the property and assets of the Issuer or the
filing of a claim for the unpaid balance of its Equipment Notes in the form required in those
proceedings.




          (d) No right of any holder of any Senior Claim to enforce the subordination of any
subordinated claim shall be impaired by an act or failure to act by the Issuer or the Indenture
Trustee or by any failure by either the Issuer or the Indenture Trustee to comply with this
Indenture, unless such failure shall materially prejudice the rights of the subordinated claimant.




          (e) Each Noteholder, by accepting an Equipment Note, and each other payee pursuant to the Flow
of Funds, by entering into the Operative Agreement to which it is a party, acknowledges and agrees
that the foregoing subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Claim, whether such Senior Claim was created or acquired
before or after the issuance of such holder’s claim, to acquire and continue to hold such Senior
Claim and such holder of any Senior Claim shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold such Senior Claim.




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          (f) The Noteholders of the Equipment Notes shall have the right to receive, to the extent
necessary to make the required payments with respect to the Equipment Notes at the times set forth
herein, (i) the portion of Collections allocable to Noteholders of the Equipment Notes pursuant to
this Indenture and (ii) funds on deposit in the Liquidity Reserve Account allocated in accordance
with the terms of this Indenture. Each Noteholder, by acceptance of its Equipment Notes, (x)
acknowledges and agrees that except as expressly provided herein, the Noteholders shall not have
any interest in the Equipment Note Account (to the extent amounts were deposited therein in
accordance herewith), and (y) ratifies and confirms the terms of this Indenture and the Operative
Agreements executed in connection with such Noteholder’s Equipment Notes. With respect to each
Collection Period, Collections on deposit in the Collections Account will be allocated to the
Equipment Notes then Outstanding in accordance with the Flow of Funds.




ARTICLE XII




DISCHARGE OF INDENTURE; DEFEASANCE



     Section 12.01 Discharge of Liability on the Equipment Notes; Defeasance.



          (a) When (i) the Issuer delivers to the Indenture Trustee all Outstanding Equipment Notes
(other than Equipment Notes replaced pursuant to Section 2.08 hereof) for cancellation or (ii) all
Outstanding Equipment Notes have become due and payable, whether at maturity or as a result of the
mailing of a Redemption Notice pursuant to Section 3.13(a) hereof and the Issuer irrevocably
deposits in the Redemption/Defeasance Account funds sufficient to pay at maturity, or upon
Redemption of, all Outstanding Equipment Notes, including interest thereon to maturity or the
Redemption Date (other than Equipment Notes replaced pursuant to Section 2.08), and if in either
case the Issuer pays all other sums payable hereunder by the Issuer including any premium, then
this Indenture shall, subject to Section 12.01(c), cease to be of further effect. The Indenture
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand of the Issuer
accompanied by an Officers’ Certificate and an opinion of counsel, at the cost and expense of the
Issuer, to the effect that any conditions precedent to a discharge of this Indenture have been met.




          (b) Subject to Sections 12.01(c) and 12.02, the Issuer at any time may terminate (i) all its
obligations under the Equipment Notes and this Indenture (the “legal defeasance” option) or (ii)
its obligations under Sections 5.02, 5.03, 5.04 and 4.01 (other than with respect to a failure to
comply with Sections 4.01(a), 4.01(b), 4.01(e) (only with respect to the Issuer) and 4.01(f) (only
with respect to the Issuer)) (the “covenant defeasance” option). The Issuer may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance option.




     If the Issuer exercises its legal defeasance option, payment of any Equipment Notes subject to
such legal defeasance may not be accelerated because of an Event of Default. If the Issuer
exercises its covenant defeasance option, payment of the Equipment Notes may not be accelerated
because of an Event of Default (other than with respect to a failure to comply with Section
5.02(j), 4.01(a), 4.01(b), 4.01(e) and 4.01(f).




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     Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the
Indenture Trustee shall acknowledge in writing the discharge of those obligations that the Issuer
terminates.



          (c) Notwithstanding clauses (a) and (b) above, the Issuer’s obligations in Sections 2.01,
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 5.02(j), Article VI, Sections 8.01, 12.04, 12.05
and 12.06 shall survive until all the Equipment Notes have been paid in full. Thereafter, the
Issuer’s obligations in Sections 8.01, 12.04, 12.05 and 13.07 shall survive.




     Section 12.02 Conditions to Defeasance.



     The Issuer may exercise its legal defeasance option or its covenant defeasance option only if:



          (a) The Issuer irrevocably deposits in trust in the Redemption/Defeasance Account any one or
any combination of (A) money, (B) obligations of, and supported by the full faith and credit of,
the U.S. Government (“U.S. Government Obligations”) or (C) obligations of corporate issuers
(“Corporate Obligations”) (provided that any such Corporate Obligations are rated AA+, or the
equivalent, or higher, by the Rating Agencies at such time and shall not have a maturity of longer
than three (3) years from the date of defeasance) for the payment of all principal, premium, if
any, and interest (i) on the Equipment Notes being defeased, in the case of legal defeasance, or
(ii) on all of the Equipment Notes in the case of covenant defeasance, in either case, to maturity
or redemption, as the case may be;




          (b) the Issuer delivers to the Indenture Trustee a certificate from a nationally recognized
firm of independent accountants expressing their opinion that the payments of principal and
interest when due and without reinvestment on the deposited U.S. Government Obligations or the
Corporate Obligations plus any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest when due (i) on the
Equipment Notes being defeased, in the case of legal defeasance, or (ii) on all of the Equipment
Notes in the case of covenant defeasance, in either case, to maturity or redemption, as the case
may be;




          (c) 91 days pass after the deposit described in clause (1) above is made and during the 91-day
period no Event of Default specified in Section 4.01(f) or (g) with respect to the Issuer occurs
which is continuing at the end of the period;




          (d) the deposit described in clause (a) above does not constitute a default under any other
agreement binding on the Issuer;




          (e) the Issuer delivers to the Indenture Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit described in clause (a) does not constitute, or is qualified as, a
regulated investment company under the Investment Company Act of 1940, as amended;




          (f) the Issuer shall have delivered to the Indenture Trustee an Opinion of Counsel to the
effect that the Noteholders will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such defeasance and will be subject to U.S. federal income tax




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on the same amounts, in the same manner and at the same times as would have been the case if such defeasance
had not occurred;




          (g) if the related Equipment Notes are then listed on any securities exchange, the Issuer
delivers to the Indenture Trustee an Opinion of Counsel to the effect that such deposit, defeasance
and discharge will not cause such Equipment Notes to be delisted;




          (h) the Issuer has obtained a Rating Agency Confirmation relating to the defeasance
contemplated by this Section 12.02;




          (i) the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and discharge of the
Equipment Notes as contemplated by this Article XII have been complied with; and




          (j) the Issuer shall only defease the Equipment Notes in their entirety, not partially.




     Section 12.03 Application of Trust Money.



     The Indenture Trustee shall hold in trust in the Redemption/Defeasance Account money, U.S.
Government Obligations or Corporate Obligations deposited with it pursuant to this Article XII. It
shall apply the deposited money and the money from U.S. Government Obligations or Corporate
Obligations in accordance with this Indenture to the payment of principal, premium, if any, and
interest on the Equipment Notes. Money and securities so held in trust are not subject to Article X
hereof.



     Section 12.04 Repayment to the Issuer.



     The Indenture Trustee shall promptly turn over to the Issuer upon request any excess money or
securities held by it at any time.



     Subject to any applicable abandoned property law, the Indenture Trustee shall pay to the
Issuer upon written request any money held by it for the payment of principal or interest that
remains unclaimed for two (2) years and, thereafter, Noteholders entitled to the money must
look to the Issuer for payment as general creditors. Such unclaimed funds shall remain uninvested
and in no event shall the Indenture Trustee be liable for interest on such unclaimed funds.



     Section 12.05 Indemnity for Government Obligations and Corporate Obligations.



     The Issuer shall pay and shall indemnify the Indenture Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or Corporate
Obligations, or the principal and interest received on such U.S. Government Obligations or
Corporate Obligations.



     Section 12.06 Reinstatement.



     If the Indenture Trustee is unable to apply any money or U.S. Government Obligations or
Corporate Obligations in accordance with this Article XII by reason of any legal proceeding or



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by reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the
Equipment Notes shall be revived and reinstated as though no deposit had occurred pursuant to this
Article XII until such time as the Indenture Trustee is permitted to apply all such money, U.S.
Government Obligations or Corporate Obligations in accordance with this Article XII; provided,
however, that, if the Issuer has made any payment of interest on or principal of any Equipment
Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Equipment Notes to receive such payment from the money, U.S. Government
Obligations or Corporate Obligations held by the Indenture Trustee.




ARTICLE XIII




MISCELLANEOUS



     Section 13.01 Right of Indenture Trustee to Perform.



     If the Issuer for any reason fails to observe or punctually to perform any of its obligations
to the Indenture Trustee, whether under this Indenture or any of the other Operative Agreements or
otherwise, the Indenture Trustee shall have power (but shall have no obligation), on behalf of or
in the name of the Issuer or otherwise, to perform such obligations and to take any steps which the
Indenture Trustee may, in its absolute discretion, consider appropriate with a view to remedying,
or mitigating the consequences of, such failure by the Issuer; provided that no exercise or failure
to exercise this power by the Indenture Trustee shall in any way prejudice the Indenture Trustee’s
other rights under this Indenture or any of the other Operative Agreements.



     Section 13.02 Waiver.



     Any waiver by any party of any provision of this Indenture or any right, remedy or option
hereunder shall only prevent and estop such party from thereafter enforcing such provision, right,
remedy or option if such waiver is given in writing and only as to the specific instance and for
the specific purpose for which such waiver was given. The failure or refusal of any party hereto
to insist in any one or more instances, or in a course of dealing, upon the strict performance
of any of the terms or provisions of this Indenture by any party hereto or the partial exercise of
any right, remedy or option hereunder shall not be construed as a waiver or relinquishment of any
such term or provision, but the same shall continue in full force and effect. No failure on the
part of the Indenture Trustee to exercise, and no delay on its part in exercising, any right or
remedy under this Indenture will operate as a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or further exercise thereof or the exercise of
any other right or remedy. The rights and remedies provided in this Indenture are cumulative and
not exclusive of any rights or remedies provided by law.



     Section 13.03 Severability.



     In the event that any provision of this Indenture or the application thereof to any party
hereto or to any circumstance or in any jurisdiction governing this Indenture shall, to any extent,
be invalid or unenforceable under any applicable statute, regulation or rule of law, then such



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provision shall be deemed inoperative to the extent that it is invalid or unenforceable and the
remainder of this Indenture, and the application of any such invalid or unenforceable provision to
the parties, jurisdictions or circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the validity or
enforceability of this Indenture. The parties hereto further agree that the holding by any court
of competent jurisdiction that any remedy pursued by the Indenture Trustee hereunder is unavailable
or unenforceable shall not affect in any way the ability of the Indenture Trustee to pursue any
other remedy available to it.




     Section 13.04 Notices.



     All notices, demands, certificates, requests, directions, instructions and communications
hereunder (“Notices”) shall be in writing and shall be effective (a) upon receipt when sent through
the mails, registered or certified mail, return receipt requested, postage prepaid, with such
receipt to be effective the date of delivery indicated on the return receipt, or (b) one Business
Day after delivery to an overnight courier, or (c) on the date personally delivered to an
authorized officer of the party to which sent, or (d) on the date transmitted by legible telecopier
transmission with a confirmation of receipt, in all cases addressed to the recipient as follows:



     if to the Issuer, to:


Trinity Rail Leasing VII LLC

2525 Stemmons Freeway

Dallas, TX 75207




     with copies to:


Kaye Scholer LLC

3 First National Plaza, Suite 4100

70 West Madison Street

Chicago, IL 60602

Attention: William Fellerhoff, Esq.

Facsimile: (312) 583-2360




     if to the Administrator, to:


Trinity Industries Leasing Company

2525 Stemmons Freeway

Dallas, TX 75207

Attention: Vice President, Leasing Operations




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     if to the Indenture Trustee, the Note Registrar or the Paying Agent, to:


Wilmington Trust Company

1100 North Market Street

Wilmington, Delaware 19890-1605

Facsimile: (302) 636-4140

Telephone: (302) 636-6000

Attention: Corporate Trust Administration Re: Trinity Rail Leasing VII




     if to the Manager, to:


Trinity Industries Leasing Company

2525 Stemmons Freeway

Dallas, TX 75207

Attention: Vice President, Leasing Operations




     if to the Rating Agencies, to:


Standard & Poor’s

55 Water Street

New York, NY 10041

Attn:                     



Moody’s Investors Service, Inc.

ABS Monitoring Department

99 Church Street, 4th Floor

New York, NY 10007

Facsimile: (212) 298-7139




     Section 13.05 Assignments.




     This Indenture shall be a continuing obligation of the Issuer and shall (i) be binding upon
the Issuer and its successors and assigns and (ii) inure to the benefit of and be enforceable by
the Indenture Trustee, and by its successors, transferees and assigns. The Issuer may not assign
any of its obligations under this Indenture, or delegate any of its duties hereunder.



     Section 13.06 Currency Conversion.



     (a) If any amount is received or recovered by the Administrator, the Manager or the Indenture
Trustee in respect of this Indenture or any part thereof (whether as a result of the enforcement of
the security created under this Indenture or pursuant to this Indenture or any judgment or order of
any court or in the liquidation or dissolution of the Issuer or by way of damages for any breach of
any obligation to make any payment under or in respect of the Issuer’s obligations hereunder or any
part thereof or otherwise) in a currency (the “Received Currency”) other than the currency in which
such amount was expressed to be payable (the “Agreed Currency”), then the amount in the Received
Currency actually received or recovered by the Indenture Trustee shall, to the fullest extent
permitted by Applicable Law, only constitute



89









 




a discharge to the Issuer to the extent of the amount
of the Agreed Currency which the Administrator, the Manager or the Indenture Trustee was or would
have been able in accordance with its normal procedures to purchase on the date of actual receipt
or recovery (or, if that is not practicable, on the next date on which it is so practicable), and,
if the amount of the Agreed Currency which the Administrator, the Manager or the Indenture Trustee
is or would have been so able to purchase is less than the amount of the Agreed Currency which was
originally payable by the Issuer, the Issuer shall pay to the Administrator, the Manager or the
Indenture Trustee such amount as the Administrator, Manager or the Indenture Trustee shall
determine to be necessary to indemnify such Person against any Loss sustained by it as a result
(including the cost of making any such purchase and any premiums, commissions or other charges paid
or incurred in connection therewith) and so that such indemnity, to the fullest extent permitted by
Applicable Law, (i) shall constitute a separate and independent obligation of the Issuer distinct
from its obligation to discharge the amount which was originally payable by the Issuer and (ii)
shall give rise to a separate and independent cause of action and apply irrespective of any
indulgence granted by the Administrator, the Manager or the Indenture Trustee and continue in full
force and effect notwithstanding any judgment, order, claim or proof for a liquidated amount in
respect of the amount originally payable by the Issuer or any judgment or order and no proof or
evidence of any actual loss shall be required.




          (b) For the purpose of or pending the discharge of any of the moneys and liabilities hereby
secured the Administrator and the Manager may convert any moneys received, recovered or realized by
the Administrator or the Manager, as the case may be, under this Indenture (including the proceeds
of any previous conversion under this Section 13.06) from
their existing currency of denomination into the currency of denomination (if different) of
such moneys and liabilities and any conversion from one currency to another for the purposes of any
of the foregoing shall be made at the Indenture Trustee’s then prevailing spot selling rate at its
office by which such conversion is made. If not otherwise required to be applied in the Received
Currency, the Administrator or the Manager, as the case may be, acting on behalf of the Security
Trustee, shall promptly convert any moneys in such Received Currency other than Dollars into
Dollars. Each previous reference in this section to a currency extends to funds of that currency
and funds of one currency may be converted into different funds of the same currency.




     Section 13.07 Application to Court.



     The Indenture Trustee may at any time after the service of a Default Notice apply to any court
of competent jurisdiction for an order that the terms of this Indenture be carried into execution
under the direction of such court and for the appointment of a receiver of the Collateral or any
part thereof and for any other order in relation to the administration of this Indenture as the
Requisite Majority shall deem fit and it may assent to or approve any application to any court of
competent jurisdiction made at the instigation of any of the Noteholders and shall be indemnified
by the Issuer against all costs, charges and expenses incurred by it in relation to any such
application or proceedings.



     Section 13.08 Governing Law.



     THIS INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK,



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INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.




     Section 13.09 Jurisdiction.



          (a) Each of the parties hereto agrees that the United States federal and New York State
courts located in The City of New York shall have jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise out of or in connection with this
Indenture and, for such purposes, submits to the jurisdiction of such courts. Each of the parties
hereto waives any objection which it might now or hereafter have to the United States federal or
New York State courts located in The City of New York being nominated as the forum to hear and
determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in
connection with this Indenture and agrees not to claim that any such court is not a convenient or
appropriate forum. Each of the parties hereto agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in connection with any suit, action or
proceeding in The City of New York to the Person named as the process agent of such party in
Schedule 5 at the address set out therein or at the principal New York City office of such process
agent, if not the same.




          (b) The submission to the jurisdiction of the courts referred to in Section 13.09(a) shall not
(and shall not be construed so as to) limit the right of the Indenture Trustee to take proceedings
against the Issuer in any other court of competent jurisdiction nor shall the
taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in
any other jurisdiction, whether concurrently or not.




          (c) Each of the parties hereto hereby consents generally in respect of any legal action or
proceeding arising out of or in connection with this Indenture to the giving of any relief or the
issue of any process in connection with such action or proceeding, including the making,
enforcement or execution against any property whatsoever (irrespective of its use or intended use)
of any order or judgment which may be made or given in such action or proceeding.




     Section 13.10 Counterparts.



     This Indenture may be executed in two or more counterparts by the parties hereto, and each
such counterpart shall be considered an original and all such counterparts shall constitute one and
the same instrument.



     Section 13.11 Table of Contents, Headings, Etc.



     The Table of Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part hereof and shall in no
way modify or restrict any of the terms and provisions hereof.



[SIGNATURE PAGE FOLLOWS]






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     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the date first written above.



	 	 	 	 	 
	 	 	TRINITY RAIL LEASING VII LLC,
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	TRINITY INDUSTRIES LEASING
	 

	 	 	 	COMPANY, as sole member and manager






	 	 	 	 	 
	 	 	 
	 	By:  	/s/ James E. Perry
 	 
	 	 	Name:  	James E. Perry 	 
	 	 	Title:  	Vice President, Treasurer and Assistant Secretary 	 
	 
	 	WILMINGTON TRUST COMPANY, not in its individual

capacity but solely as Indenture Trustee (and as

securities intermediary as described herein)


 	 
	 	By:  	/s/ Jose L. Paredes
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Indenture