exv10w2






Exhibit 10.2




EXECUTION COPY



Certain confidential information contained in this Exhibit was omitted by means of redacting a
portion of the text and replacing it with brackets and asterisks ([***]). This Exhibit has been
filed separately with the SEC without the redaction pursuant to a Confidential Treatment Request
under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




ADVISORY SERVICES AGREEMENT




          This ADVISORY SERVICES AGREEMENT (this “Agreement”) is entered into as of April 29,
2010, by and among WLR-Greenbrier Rail Inc., a Delaware corporation (the “Company”) and
Greenbrier Leasing Company LLC, an Oregon limited liability company (“GLC”).




Background




          WHEREAS, GLC has staff skilled in strategy development, strategic planning, corporate
development, marketing, remarketing, financial modeling, financing capabilities, structuring
experience and knowledge, engineering, back office capabilities and other advisory skills, services
and knowledge of and in the railcar industry, including, but not limited to, the railcar leasing
industry (the “Advisory Services”);




          WHEREAS, GLC has provided the Company with the Advisory Services in connection with the
closing of a railcar leasing opportunity for WL Ross-Greenbrier Rail Holdings I LLC
(“Holdings”) and WL Ross-Greenbrier Rail I LLC (“WLRGR”), both affiliates of the
Company;




          WHEREAS, the Company desires to, pursuant to this Agreement, compensate GLC for the Advisory
Services it and its affiliates have provided to the Company to date;




          WHEREAS, the Company desires to exclusively hire GLC to provide the Advisory Services in the
future in connection with future business opportunities and the Company’s general business
operations; and




          WHEREAS, GLC has provided Advisory Services, and is willing to provide Advisory Services to
the Company, all upon the terms and conditions set forth in this Agreement.




Agreement




          NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto,
intending to be legally bound, do hereby agree as follows:




     1. Engagement. Upon the terms and conditions herein set forth, the Company hereby
engages GLC on an exclusive basis for the Term (as defined below) to provide Advisory Services to
the Company as requested from time to time by the Company in consideration for the compensation
provided for in Section 3 below (provided nothing herein shall prevent any investor or
owner of the Company from pursuing other rail opportunities). The Advisory
Services shall be performed under the direction of the Company’s Board of Directors. In
consideration of the remuneration herein specified, GLC accepts such engagement and agrees to



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perform the Advisory Services specified herein. Upon written agreement of the parties, the
provision of Advisory Services may also include GLC assisting the Company with refinancing
indebtedness of the Company and/or its subsidiaries, in which case, GLC shall be appointed as the
exclusive advisor in connection with such refinancing and Exhibit A (referenced below) shall be
updated to reflect mutually agreed upon fees customary in the industry payable for the provision of
such services.




     2. Term. This Agreement shall commence on the date hereof and shall terminate upon the
sale, liquidation or dissolution of Holdings and WLRGR (the “Term”).



     3. Advisory Fee; Success Fee; Deferred Fee.



          (a) In consideration of GLC’s providing Advisory Services hereunder, the Company shall pay GLC
an advisory fee, success fee and deferred fee for any refinancing, each as described in Exhibit A
attached hereto (collectively, the “Fees”).




          (b) In addition to the Fees, the Company shall reimburse GLC promptly upon request for all
reasonable out-of-pocket fees and expenses incurred by GLC in connection with GLC’s obligations
hereunder, provided that such out-of-pocket fees and expenses have been approved by the Company,
with such approval not to be unreasonably withheld.




          (c) On or before the expiration of the Term of this Agreement (the “Expiration Date”), the
Company will pay GLC any unpaid fees due through the Expiration Date.




          (d) With the prior written consent of the Company not to be unreasonably withheld, GLC may
assign to an affiliate of GLC any fees or reimbursable costs and expenses due to GLC from the
Company.




     4. Additional Rights and Obligations of the Parties.



          (a) During the Term, GLC shall maintain in its employ, or otherwise have available to it
through affiliates or otherwise, personnel in its judgment sufficient in number and adequate in
ability to perform all Advisory Services that GLC is required to perform under this Agreement.




          (b) The Company shall at all times cooperate with GLC.




          (c) GLC shall diligently and faithfully perform its obligations under this Agreement.




          (d) The Company covenants and agrees that at all times during the Term Holdings shall have no
operations and shall not engage in any business other than as a holding company owning 100% of
WLRGR.




          (e) A “New Owner Event” shall mean the issuance, sale or other transfer of any interests,
including any membership interests, securities, participations or otherwise, in Holdings or WLRGR,
to a third-party. The Company covenants and agrees that at all times




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during the Term that the Company, Holdings and WLRGR shall not engage in a New Owner Event
without the written consent of GLC which consent shall not be unreasonably withheld; provided,
however, such prior written consent shall not be required if and to the extent that following
consummation of such New Owner Event, the percentage of distributions to the Company payable to GLC
hereunder is adjusted in a manner that is not unfavorable to GLC so that, following the occurrence
of such New Owner Event, the aggregate Advisory Fees expected to be earned by GLC during the
remaining Term would be not less than the aggregate Advisory Fees expected to be earned by GLC
during the remaining Term had such New Owner Event not occurred (i.e. such New Owner Event is
economically neutral to GLC).




     5. Indemnification.



          (a) Indemnification. Each party agrees to indemnify and hold harmless the other party
(the “Indemnified Party”) (including its affiliates and its and their respective principals,
officers, directors, shareholders, partners, members, managers and employees) from and against, and
pay or reimburse the Indemnified Party and such other indemnified persons for, any and all actions,
claims, demands, proceedings, investigations, inquiries, liabilities, obligations, fines,
deficiencies, costs, expenses, royalties, losses and damages (whether or not resulting from third
party claims) related to or arising out such party’s breach of this Agreement, gross negligence,
willful misconduct, bad faith or knowing violation of applicable law, and to reimburse the
Indemnified Party and any other indemnified person for out-of-pocket expenses and reasonable legal
and accounting expenses incurred by it in connection with or relating to investigating, preparing
to defend or defending any actions, claims or other proceedings (including any investigation or
inquiry) arising in any manner out of or in connection with such party’s breach of this Agreement,
gross negligence, willful misconduct, bad faith or knowing violation of applicable law (whether or
not such indemnified person is a named party in such proceeding); provided,
however, that no party shall not be responsible under this Section 5(a) for any
claims, liabilities, losses, damages or expenses to the extent that they are agreed by the parties
or finally determined in arbitration or judicially (without right of further appeal) to result from
actions taken by the Indemnified Person (or by any other indemnified person) due to the Indemnified
Party’s (or by any other indemnified person’s) gross negligence, willful misconduct, bad faith or
knowing violation of applicable law.




          (b) Limitation on Liability. Except as expressly set forth herein, neither party makes
any representations or warranties, express or implied, in respect of the Advisory Services, itself
or its business. The Company further acknowledges that GLC’s role under this Agreement is as an
advisor only, that GLC does not and will not have or exercise control over the Company’s affairs
and/or governance, that GLC will have no liability for the actions of its affiliates in the absence
of gross negligence or willful misconduct, and that the Company waives any claims based on
assertions that GLC exercises control or influence over the Company’s affairs. In no event will
any party to this Agreement be liable under this Agreement for any punitive, exemplary, indirect,
special, incidental or consequential damages, including lost profits or savings, whether or not
such damages are foreseeable, or in respect of any liabilities relating to any third party claims
(whether based in contract, tort or otherwise), unless such damages are owed and paid by such party
to a third party.




          (c) Contribution. If and to the extent that the indemnification provided for in



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Section 5(a) is not enforceable for any reason, the applicable indemnifying party
agrees to make the maximum contribution possible pursuant to applicable law to the payment and
satisfaction of any actions, claims, liabilities, losses and damages incurred by the other party or
the other indemnified persons for which they would have otherwise been entitled to be indemnified
hereunder.




     6. Miscellaneous.



          (a) Confidentiality. The terms and conditions of this Agreement are confidential, and
except as otherwise required by law, neither party shall disclose this Agreement or any portion
hereof to any person other than its legal counsel and accountants without prior written consent of
the other party.




          (b) Marketing Authorization. With the prior consent of the Company not to be
unreasonably withheld, the Company agrees that GLC may use the Company’s name and logo, and general
information concerning the Company’s relationship with GLC, on GLC’s website and firm brochures, in
press releases, advertisements, and in other related marketing materials. This authorization will
extend to reissues of the advertisements and other marketing tools which GLC may utilize in its
marketing activities.




          (c) Notices. All notices, demands and other communications given or delivered under
this Agreement shall be in writing and shall be deemed to have been given (i) when personally
delivered, (ii) 3 business days after being mailed by first class mail, certified with return
receipt requested, or (iii) 1 business day after delivery to a reputable overnight courier for next
business day delivery, to the following addresses (or such other address as is specified in
writing):



Greenbrier Leasing Company LLC

One Centerpointe Drive, Suite 200

Lake Oswego, Oregon 97035

Attn: General Counsel



WLR-Greenbrier Rail Inc.

1166 Avenue of the Americas

New York, New York 10036

Attn: Wendy L. Teramoto




          (d) Entire Agreement; Amendment and Modification. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof, superseding all
prior understandings and agreements whether written or oral. This Agreement may not be amended or
revised except by a writing signed by GLC and the Company.




          (e) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns but may not be assigned (and no
duties may be delegated) by any party without the prior written consent of the other parties
hereto. GLC may assign this Agreement, or the right to receive any amounts due from the Company to
GLC hereunder, to any of its affiliates, in each case, with the prior consent of the




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Company not to be unreasonably withheld.




          (f) Governing Law; Venue. THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS
OF LAW (OTHER THAN TITLE 14 OF ARTICLE 5 OF THE GENERAL OBLIGATIONS LAW).




          (g) Waiver of Jury Trial. Each party hereby irrevocably waives any right it may have,
and agrees not to request, a jury trial for the adjudication of any dispute hereunder or in
connection herewith or arising out of this Agreement or any transaction contemplated hereby.




          (h) Survival. Upon expiration or termination of this Agreement, all liabilities and
obligations hereunder automatically shall terminate except (i) liability for breaches by any party
prior thereto, (ii) the Company’s obligations under Section 3 and Exhibit A (with respect
to any fees payable or incurred either prior to or at the termination of this Agreement or
following termination), and (iii) the obligations under Section 5, each of which shall
survive the termination of this Agreement.




          (i) Independent Contractor. The parties acknowledge and agree that GLC is and shall
act as an independent contractor of the Company in the performance of its duties hereunder. GLC is
not, and in the performance of its duties will not hold itself out as, an employee, agent or
partner of the Company or any of its subsidiaries and no party to this Agreement shall take any
position inconsistent with the foregoing.




          (j) Counterparts. This Agreement may be signed and delivered in multiple counterparts
(including delivery by means of facsimile), each of which shall be deemed an original but which
together shall constitute one and the same instrument.




[signature page follows]




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          IN WITNESS WHEREOF, the parties have duly executed this Advisory Services Agreement as of the
date first above written.




	 	 	 	 	 
	 	WLR-GREENBRIER RAIL INC.

 	 
	 	By:  	/s/ Wendy Teramoto
 	 
	 	 	Name:  	Wendy Teramoto 	 
	 	 	Title:  	Vice President 	 
	 
	 	GREENBRIER LEASING COMPANY LLC

 	 
	 	By:  	/s/ Larry Stanley
 	 
	 	 	Name:  	Larry Stanley 	 
	 	 	Title:  	Vice President 	 
	 



SIGNATURE
PAGE — ADVISORY SERVICES AGREEMENT




 









 








EXHIBIT A

Fees



1. The Company shall pay GLC advisory fees (the “Advisory Fee”) for services under the Agreement as
follows:



(i) Subject to Section 1(ii) below, the Company agrees to pay to GLC, within two business days
following its receipt of any distribution from Holdings (including any distribution received by the
Company in connection with any refinancing of the indebtedness of WLRGR or from any New Owner
Event, a fee equal to [***]% of such distribution until the total of such distributions from
Holdings to the Company to date, together with any monies the Company received in a New Owner Event
pursuant to Section 2, equals $[***], plus the amount of any subsequent capital contributions from
the Company to Holdings made prior to the date of such distribution (collectively, the “Company’s
Capital Contributions”), plus an internal annual rate of return of [***]% on the Company’s Notional
Capital Contribution. Thereafter, the Company agrees to pay to GLC, within two business days
following its receipt of any distribution from Holdings, a fee equal to [***]% of such
distribution.



(ii) The fee payable to GLC under Section 1(i) above or Section 2(i) below, as the case may be,
may be adjusted in good faith by the Company so that the Company receives an internal rate of
return of [***]% on its Notional Capital Contribution at the same time as GLC receives its
proportionate share of fees hereunder (as adjusted for any participation interests in the Line of
Credit (as defined below) held by GLC or its affiliates).



The Company’s “Notional Capital Contribution” shall equal the Company’s Capital Contributions plus
all amounts advanced from time to time by the Company (excluding amounts funded through
participations) under the Line of Credit Agreement, dated as of April 29, 2010 (the “Line of Credit
”), among WLRGR, the Company and the other parties thereto.



2. The Company shall pay, or cause to be paid, to GLC a success fee (“Success Fee”) upon a New
Owner Event. Such Success Fee shall be paid as follows:



After payment of any commission or fee owed under that certain Syndication Agreement dated as of
April 29, 2010 plus reimbursement to the Company (and, on a pro-rata basis, to GLC or its affiliate
in respect of any participation interests) for any outstanding amounts under the Line of Credit
(the “Expenses”), the Company agrees to pay to GLC, within two business days following its receipt
of consideration received in connection with the New Owner Event (the “Payment”), (i) a fee equal
to [***]% of an amount equal to (x) the Payment minus (y) the Expenses (with (x) minus (y) referred
to herein as the “Net Payment”), until the total of the Net Payment received by Company to date,
together with any monies the Company received as a distribution from Holdings under Section 1
above, equals the Company’s Capital Contributions to Holdings plus an internal annual rate of
return of [***]% on the Company’s Notional Capital Contribution; and thereafter, (ii) a fee equal
to [***]% of the Net Payment and the payments under subsection (i) of this paragraph.



3. Limitations on Distributions. The parties agree that, except as expressly provided
herein, nothing in this Exhibit A shall be interpreted to require Holdings to make any
distributions and in no event shall GLC be entitled to any fee pursuant to this Exhibit A unless
and until distributions are made by Holdings to the Company in accordance with and pursuant to the
terms of the







 









 







limited liability company agreement of Holdings. For the avoidance of doubt, prior to making any
distribution to the Company using the Payment or the proceeds of a New Owner Event or refinancing
of WLRGR debt, Holdings shall pay directly to GLC or other applicable person entitled thereto any
agreed arrangement fees.



3. Example calculations of selected provisions under this Exhibit A are attached hereto as Exhibit
A-1.