exv10w6






Exhibit 10.6




Guaranty




     This Guaranty (this “Guaranty”) dated as of April 29, 2010, by Greenbrier Leasing Company LLC,
an Oregon limited liability company (the “Guarantor”) is for the benefit of the Beneficiary (as
defined below).



     Whereas, Guarantor is the sole member of Greenbrier Management Services LLC, an
Oregon limited liability company (the “Manager”); and



     Whereas, Manager and WL Ross-Greenbrier Rail I LLC, a Delaware limited liability
company (the “Beneficiary”), have entered into the Railcar Remarketing and Management Agreement
dated as of April 29, 2010 (the “Agreement”), pursuant to which Manager will provide certain
services to Beneficiary;



     Now, Therefore, for good and valuable consideration, receipt of which is hereby
acknowledged, the Guarantor agrees with the Beneficiary as follows:



Article I




Defined Terms



     Section 1.01. Definitions. Capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Agreement.



Article II




Representations of the Guarantor



     Section 2.01. Representations and Warranties. The Guarantor represents and warrants that the
Guarantor is a limited liability company duly organized and validly existing in good standing under
the laws of the State of Oregon. The execution, delivery and performance of this Guaranty are
within the Guarantor’s powers and this Guaranty constitutes a legal, valid and binding obligation
of the Guarantor, enforceable against the Guarantor in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, liquidation
or similar laws and equitable principles affecting the rights of creditors generally. The
execution, delivery and performance of this Guaranty do not and will not conflict with or result in
any violation of or default under any provision of the charter documents or the by-laws of the
Guarantor or any instrument, law, rule or regulation applicable to the Guarantor, do not and will
not result in violation of any judgment or order applicable to the Guarantor or require the
creation or imposition of any lien on any of the properties or revenues of the Guarantor pursuant
to any requirement of law or contractual obligation of the Guarantor and do not and will not
require any consent, approval or authorization of, or registration or filing with, any governmental
authority. As of the date hereof, there are no pending or, to the knowledge of



 









 




the Guarantor, threatened actions or proceedings before any court or administrative agency or
arbitrator that would adversely affect the ability of the Guarantor to perform its obligations
hereunder, with the exception of those threatened by Babcock & Brown Rail Management LLC and
related entities relating to an existing railcar service agreement and reporting mark ownership
which we believe are without merit.




Article III




Guaranty



     Section 3.01. Guaranty of the Manager’s Obligations. The Guarantor hereby unconditionally and
irrevocably guarantees to the Beneficiary, as primary obligor and not merely as surety, the due and
punctual performance of all of the obligations of the Manager arising under or pursuant to the
Agreement (the “Obligations”). Without limiting the generality of the foregoing, the Guarantor’s
liability shall extend to performance of all obligations which constitute part of the Obligations
and would be owed by the Manager under the Agreement but for the fact that they are unenforceable
or not allowable due to the existence of a bankruptcy, insolvency, reorganization or similar
proceeding involving the Manager.



     Section 3.02. Guaranty Absolute. The Guarantor guarantees that the Obligations will be
performed in accordance with the terms of the Agreement, regardless of any law, regulation or order
now or hereafter in effect affecting any of such terms or the rights of the Beneficiary, the
Guarantor, or the Manager with respect thereto. The obligations of the Guarantor under this
Guaranty are independent of the Obligations, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is
brought against the Manager or whether the Manager is joined in any such action or actions. The
liability of the Guarantor under this Guaranty shall be absolute and unconditional irrespective of:




     (i) any change in the time, manner or place of performance of all or any of the
Obligations;




     (ii) any taking, exchange, release or non-perfection of any collateral, or any taking,
release or amendment or waiver of or consent to departure from any other guaranty, for all
or any of the Obligations;




     (iii) any change, restructuring or termination of the limited liability company
structure or existence of the Manager or the Guarantor, or any bankruptcy, insolvency,
reorganization or other similar proceedings affecting the Manager, or the assets of the
Manager;




     (iv) any other circumstance which might otherwise constitute a defense available to, or
a discharge of, the Manager or a guarantor thereof;





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     (v) any extension, indulgence or renewal with respect to any obligation of the Manager
under the Agreement;



     (vi) any modification of, or amendment or supplement to, the Agreement;




     (vii) any furnishing or acceptance of additional security or any release of any
security; or




     (viii) any waiver, compromise, consent or other action or inaction, or any exercise or
non-exercise of any right, remedy or power with respect to the Manager.



     Section 3.03. Waiver. The Guarantor hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to any of the Obligations and this Guaranty and any requirement
that the Beneficiary protect, secure, perfect or insure any security interest or lien or any
property subject thereto or exhaust any right or take any action against the Manager or any other
person or entity or any collateral. This is a guaranty of performance, not collection. The
obligations of the Guarantor hereunder are absolute, present and continuing obligations which are
not conditional upon the institution of suit against or the exercise of any remedies against the
Manager, or any attempt to foreclose or realize upon any security for obligations of the Manager or
the taking of any other action with respect to the Manager.



     Section 3.04. No Waiver; Remedies. No failure on the part of the Beneficiary to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.



Article IV




Jurisdiction



     Section 4.01. Consent to Jurisdiction. The Guarantor hereby irrevocably submits to the
jurisdiction of and venue in, federal and/or state courts located in the County of New York, State
of New York for any action or proceeding arising out of or relating to this Guaranty, and the
Guarantor hereby irrevocably agrees that all claims in respect of such action or proceeding may be
heard and determined in such New York State court or in such Federal court.



Article v




Amendments



     Section 5.01. Amendments, Etc. No amendment or waiver of any provision of this Guaranty, and
no consent to any departure by the Guarantor herefrom, shall in any event be effective unless the
same shall be in writing and signed by the Beneficiary, and then such waiver



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or consent shall be
effective only in the specific instance and for the specific purpose for which given.



Article VI




Notices



     Section 6.01. Addresses for Notices. All notices required or permitted by the terms hereof
shall be in writing. Any written notice shall become effective when actually received or, if
earlier and regardless of whether actually received or not, three days after deposit in the United
States mail, registered or certified mail, postage prepaid, return receipt requested, or by
facsimile, addressed to the party to whom notice is sent. Any written notice to the Beneficiary
shall be directed to the Beneficiary at the address set forth in the Agreement, or to such other
address or telex or telecopy number as the Beneficiary may designate by written notice given to the
Guarantor. Any written notice to the Guarantor shall be directed to the Guarantor at its address
at One Centerpointe Drive, Suite 200, Lake Oswego, Oregon 97035, Attn: General Counsel, or to
such other address or telex or telecopy number as the Guarantor may designate by written notice
given to the Beneficiary.



Article VII




Miscellaneous



     Section 7.01. Miscellaneous. This Guaranty is a continuing guaranty and shall (i) remain in
full force and effect until satisfaction in full of the Obligations or the date of the transfer of
all of the Manager’s interests in the Agreement to a successor assignee pursuant to an assignment
and assumption agreement in accordance with the Agreement, (ii) be binding upon the Guarantor, its
successors and assigns, and (iii) inure to the benefit of, and be enforceable by, the Beneficiary
and its successors, assignees and assigns. Without limiting the generality of the foregoing clause
(iii), upon the Beneficiary’s assignment or other transfer of all or any portion of its rights and
obligations under the Agreement in accordance therewith to any other person or entity, such other
person or entity shall thereupon become vested with all the benefits in respect thereof granted to
the Beneficiary herein or otherwise. The Guarantor agrees to pay all costs and expenses (including
reasonable legal fees and expenses) incurred by or on behalf of the Beneficiary in connection with
the enforcement of the Guarantor’s obligations under this Guaranty. To the fullest extent
permitted by law, any provision of this Guaranty that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition
or unenforceability without invalidating the remaining provisions and without affecting the
validity or enforceability of such provision in any other jurisdiction. This Guaranty shall be
governed by, and construed in accordance with, the laws of the State of New York.


The Senior Lenders and the Security Trustee are express third party beneficiaries of this guaranty;
provided, however, that they shall not have rights of enforcement in connection with a


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Termination
Event until such time as any cure period pertaining to the Termination Event has passed without
cure having been effected.




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     The undersigned has caused this Guaranty to be executed as of the date first set forth above.



	 	 	 	 	 
	 	Greenbrier leasing company llc

 	 
	 	By:  	/s/ James T. Sharp
 	 
	 	 	Name:  	James T. Sharp 	 
	 	 	Title:  	President 	 
	 




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