Exhibit 10.37
Certain confidential information contained in this exhibit, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
MASTER INDENTURE
dated as of February 9, 2022
by and between
GBX LEASING 2022-1 LLC,
a Delaware limited liability company,
as the Issuer,
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
a national banking association,
as Indenture Trustee,
and
U.S. BANK NATIONAL ASSOCIATION,
a national banking association,
as securities intermediary,
Table of Contents
Page
GRANTING CLAUSES 1
article I DEFINITIONS 8
Section 1.01 Definitions 8
Section 1.02 Rules of Construction 8
Section 1.03 Compliance Certificates and Opinions 9
Section 1.04 Acts of Noteholders 10
article II THE NOTEs 11
Section 2.01 Authorization, Issuance and Authentication of the Notes; Amount of Outstanding Principal Balance; Terms; Form; Execution and Delivery 11
Section 2.02 Restrictive Legends 14
Section 2.03 Note Registrar and Paying Agent 20
Section 2.04 Paying Agent to Hold Money in Trust 21
Section 2.05 Method of Payment 21
Section 2.06 Minimum Denomination 22
Section 2.07 Exchange Option 22
Section 2.08 Mutilated, Destroyed, Lost or Stolen Notes 24
Section 2.09 Payments of Transfer Taxes 24
Section 2.10 Book-Entry Registration 24
Section 2.11 Special Transfer Provisions 26
Section 2.12 Temporary Definitive Notes 29
Section 2.13 Statements to Noteholders 30
Section 2.14 CUSIP, CINS and ISIN Numbers 31
Section 2.15 Debt Treatment of the Notes 31
Section 2.16 Compliance with Withholding Requirements 31
Section 2.17 Limitation on Transfers 32
Section 2.18 Noteholder Tax Identification Information 34
Section 2.19 Later Sold Notes 34
article III INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS 35
Section 3.01 Establishment of Indenture Accounts; Investments 35
Section 3.02 Collections Account 38
Section 3.03 Withdrawal upon an Event of Default 39
Section 3.04 Liquidity Reserve Account; Liquidity Facilities 39
Section 3.05 Optional Reinvestment Account 41
Section 3.06 Expense Account 42
Section 3.07 Series Accounts 42
Section 3.08 Redemption/Defeasance Account 43
Section 3.09 [Reserved.] 43
Section 3.10 Calculations 43
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Table of Contents
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Section 3.11 Payment Date Distributions from the Collections Account 46
Section 3.12 Optional Redemptions 58
Section 3.13 Procedure for Redemptions 59
Section 3.14 Adjustments in Targeted Principal Balances 60
Section 3.15 Liquidity Reserve Account and Liquidity Facilities 61
Section 3.16 Hedge Agreements 63
Section 3.17 Capital Contributions to Indenture Accounts and/or Portfolio 65
article IV DEFAULT AND REMEDIES 65
Section 4.01 Events of Default 65
Section 4.02 Remedies Upon Event of Default 68
Section 4.03 Limitation on Suits 71
Section 4.04 Waiver of Existing Defaults 71
Section 4.05 Restoration of Rights and Remedies 72
Section 4.06 Remedies Cumulative 72
Section 4.07 Authority of Courts Not Required 72
Section 4.08 Rights of Noteholders to Receive Payment 72
Section 4.09 Indenture Trustee May File Proofs of Claim 73
Section 4.10 Undertaking for Costs 73
Section 4.11 Purchase Right of Class B Noteholders 73
Section 4.12 Purchase Right of Class C Noteholders 74
article V REPRESENTATIONS, WARRANTIES AND COVENANTS 75
Section 5.01 Representations and Warranties 75
Section 5.02 General Covenants 80
Section 5.03 Portfolio Covenants 87
Section 5.04 Operating Covenants 91
article VI THE INDENTURE TRUSTEE 100
Section 6.01 Acceptance of Trusts and Duties 100
Section 6.02 Absence of Duties 101
Section 6.03 Representations or Warranties 101
Section 6.04 Reliance; Agents; Advice of Counsel 101
Section 6.05 Not Acting in Individual Capacity 104
Section 6.06 No Compensation from Noteholders 105
Section 6.07 Notice of Defaults; Communications During Continuance of Event of Default 105
Section 6.08 Indenture Trustee May Hold Securities 105
Section 6.09 Corporate Trustee Required; Eligibility 105
Section 6.10 Reports by the Issuer 105
Section 6.11 Compensation 106
Section 6.12 Certain Rights of the Requisite Majority 106
Section 6.13 Lessee Contact 106
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Table of Contents
(continued)
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article VII SUCCESSOR TRUSTEES 106
Section 7.01 Resignation and Removal of Indenture Trustee 106
Section 7.02 Appointment of Successor 107
article VIII INDEMNITY 108
Section 8.01 Indemnity 108
Section 8.02 Noteholders’ Indemnity 108
Section 8.03 Survival 109
article IX SUPPLEMENTAL INDENTURES 109
Section 9.01 Supplemental Indentures Without the Consent of the Noteholders 109
Section 9.02 Supplemental Indentures with the Consent of Noteholders 110
Section 9.03 Execution of Indenture Supplements and Series Supplements 111
Section 9.04 Effect of Indenture Supplements 112
Section 9.05 Reference in Notes to Supplements 112
Section 9.06 Issuance of Additional Series of Notes 112
article X MODIFICATION AND WAIVER 114
Section 10.01 Modification and Waiver with Consent of Noteholders 114
Section 10.02 Modification Without Consent of Noteholders 114
Section 10.03 Consent of Servicer, Hedge Providers and Liquidity Facility Providers 115
Section 10.04 Subordination and Priority of Payments 115
Section 10.05 Execution of Amendments by Indenture Trustee 115
article XI SUBORDINATION 116
Section 11.01 Subordination 116
article XII DISCHARGE OF INDENTURE; DEFEASANCE 117
Section 12.01 Discharge of Liability on the Notes; Defeasance 117
Section 12.02 Conditions to Defeasance 118
Section 12.03 Application of Trust Money 119
Section 12.04 Repayment to the Issuer 119
Section 12.05 Indemnity for Government Obligations and Corporate
Obligations 120
Section 12.06 Reinstatement 120
article XIII MISCELLANEOUS 120
Section 13.01 Right of Indenture Trustee to Perform 120
Section 13.02 Waiver 120
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Table of Contents
(continued)
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Section 13.03 Severability 121
Section 13.04 Notices 121
Section 13.05 Assignments 122
Section 13.06 Currency Conversion 122
Section 13.07 Application to Court 123
Section 13.08 Governing Law 123
Section 13.09 Jurisdiction 123
Section 13.10 Jury Trial 124
Section 13.11 Counterparts; Electronic Signatures 124
Section 13.12 No Petition in Bankruptcy 124
Section 13.13 Table of Contents, Headings, Etc 125
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Annex | Description |
Annex A | Defined Terms |
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Schedule | Description |
Schedule 1 | Account Information |
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Exhibit | Description |
Exhibit A-1 | Form of Certificate to be Given by Noteholders |
Exhibit A-2 | Form of Certificate to be Given by Euroclear or Clearstream |
Exhibit A-3 | Form of Certificate to Depository Regarding Interest |
Exhibit A-4 | Form of Depositary Certificate Regarding Interest |
Exhibit A-5 | Form of Transfer Certificate for Exchange or Transfer from 144A Book-Entry Note to Regulation S Book-Entry Note |
Exhibit A-6 | Form of Initial Purchaser Exchange Instructions |
Exhibit A-7 | Form of Certificate to be Given by Transferee of Beneficial Interest in a Regulation S Book-Entry Note |
Exhibit A-8 | Form of Transfer Certificate for Exchange or Transfer from Unrestricted Book-Entry Note to 144A Book-Entry Note |
Exhibit B | Form of Investment Letter to be Delivered in Connection with Transfers to Non-QIB Accredited Investors |
Exhibit C | Form of Monthly Report |
Exhibit D | Form of Railcar Lease |
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This MASTER INDENTURE, dated as of February 9, 2022 (as modified, amended or supplemented from time to time by Indenture Supplements, this “Master Indenture”) between GBX LEASING 2022-1 LLC, a Delaware limited liability company, as the issuer of the Notes hereunder (the “Issuer”), U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as indenture trustee for the Notes hereunder (the “Indenture Trustee”) and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as securities intermediary.
W I T N E S S E T H:
WHEREAS, the Issuer and the Indenture Trustee are executing and delivering this Master Indenture in order to provide for the issuance from time to time by the Issuer of Notes in one or more Series, the Principal Terms of which shall be specified in one or more Series Supplements to this Master Indenture; and
WHEREAS, except as otherwise provided herein, the obligations of the Issuer under the Notes issued pursuant to this Master Indenture and the other Secured Obligations shall be secured on a pari passu basis by the Collateral further granted and described below;
NOW THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
GRANTING CLAUSES TC \l "1"
The Issuer hereby pledges, transfers, assigns, and otherwise conveys to the Indenture Trustee for the benefit and security of the Noteholders and other Secured Parties, and grants to the Indenture Trustee for the benefit and security of the Noteholders and other Secured Parties a security interest in and Encumbrance on, all of the Issuer’s right, title and interest, whether now existing or hereafter created or acquired and wherever located, in, to and under the assets and property described below (collectively, the “Collateral”):
(a) each Issuer Document, in each case, as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”);
(b) (i) all Railcars described on a schedule to a Series Supplement, together with all other Railcars conveyed to the Issuer from time to time, whether pursuant to an Asset Transfer Agreement or otherwise, and any and all substitutions and replacements therefor, (ii) all licenses, manufacturer’s warranties and other warranties, Supporting Obligations (including in respect of any related Lease), Payment Intangibles, Accounts, Instruments, Chattel Paper (including the Leases described on a schedule to a Series Supplement and any other related Leases of the Railcars and all related Lease Payments), General Intangibles and all other rights and obligations related to any such aforementioned Assigned Agreement, Railcars or Leases, including, without limitation, all rights, powers, privileges, options and other benefits of the Issuer to receive moneys and other property due and to become due under or pursuant to such Assigned Agreements, such Railcars or Leases, including, without limitation, all rights, powers, privileges, options and other benefits to receive and collect rental payments, income, revenues, profits and
other amounts, payments, tenders or security (including any cash collateral) from any other party thereto (including, in the case of related Leases, from the Lessees thereunder), (iii) all rights, powers, privileges, options and other benefits of the Issuer to receive proceeds of any casualty insurance, condemnation award, indemnity, warranty or guaranty with respect to such Assigned Agreements, Railcars or Leases, (iv) all claims of the Issuer for damages arising out of or for breach of or default under any Assigned Agreement or in respect of any related Lease, and (v) the rights, powers, privileges, options and other benefits of the Issuer to perform under each Assigned Agreement and related Lease, to compel performance and otherwise exercise all remedies thereunder and to terminate each Assigned Agreement and related Lease;
(c) all (i) Railroad Mileage Credits allocable to such Railcars and any payments in respect of such credits, (ii) tort claims or any other claims of any kind or nature related to such Railcars and any payments in respect of such claims, (iii) the Issuer’s rights in the Greenbrier Marks and (iv) other payments owing by any Person (including any railroads or similar entities) in respect of or attributable to such Railcars or the use, loss, damage, casualty, condemnation of such Railcars or the Marks associated therewith, in each case whether arising by contract, operation of law, course of dealing, industry practice or otherwise;
(d) all Indenture Accounts (other than Series Accounts) and any other deposit accounts and securities accounts established in connection with any Liquidity Facility Documents, and all the funds standing to the credit thereof, all Investment Property credited thereto (including, without limitation, all (i) securities, whether certificated or uncertificated, (ii) Security Entitlements, (iii) Securities Accounts, (iv) commodity contracts and (v) commodity accounts) in which the Issuer has now, or acquires from time to time hereafter, any right, title or interest in any manner, and the certificates or instruments, if any, representing or evidencing such Investment Property, and all dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Investment Property with respect thereto, including, without limitation, any Permitted Investments purchased with funds on deposit in any Indenture Accounts or in any other deposit accounts and securities accounts established in connection with any Liquidity Facility Documents, and all income from the investment of funds therein;
(e) all insurance policies (to the extent assignable and without prejudice to the Indenture Trustee’s rights as loss payee and additional insured with respect to such insurances) maintained by the Issuer or for its benefit (including, without limitation, all insurance policies maintained by the Servicer or the Insurance Manager for the benefit of the Issuer) covering all or any portion of the Collateral, and all payments thereon or with respect thereto;
(f) all other Accounts, Chattel Paper, commercial tort claims (as defined in the UCC), documents of title (as defined in the PPSA), documents (as defined in the UCC or the PPSA, as applicable), equipment (as defined in the UCC), General Intangibles, Instruments, inventory (as defined in the UCC or the PPSA, as applicable), letter-of-credit rights (as defined in the UCC), and Supporting Obligations and any comparable personal property under the PPSA; and
(g) all Proceeds, accessions, profits, products, income benefits, substitutions and replacements, whether voluntary or involuntary, of and to any of the property of the Issuer
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described in the preceding clauses (including, without limitation, the Issuer’s claims for indemnity thereunder and payments with respect thereto).
Such Security Interests are granted and subject to the terms and conditions of this Master Indenture as collateral security for the payment and performance in full by the Issuer of all Outstanding Obligations and for the prompt payment in full by the Issuer of the respective amounts due and the prompt performance in full by the Issuer of all of its other obligations, in each case, under this Master Indenture, the other Issuer Documents and the other Operative Agreements to which the Issuer is a party (collectively, the “Secured Obligations”), all as provided in this Master Indenture.
For the avoidance of doubt it is expressly understood and agreed that, to the extent the UCC is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties hereto desire that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision.
The Indenture Trustee acknowledges such Security Interests, accepts the duties created hereby in accordance with the provisions hereof and agrees to hold and administer all Collateral for the use and benefit of all present and future Secured Parties.
The Issuer hereby irrevocably authorizes the Indenture Trustee at any time, and from time to time, to file, without the signature of the Issuer, in any filing office in any UCC jurisdiction necessary or desirable to perfect the Security Interests granted herein, any initial financing statements, continuation statements and amendments thereto that (i) indicate or describe the Collateral regardless of whether any particular asset constituting Collateral falls within the scope of Article 9 of the UCC in the same manner as described herein or in any other manner as is necessary or desirable to ensure the perfection of the Security Interests granted herein, or (ii) provide any other information required by Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement, continuation statement or amendment, including whether the Issuer is an organization, the type of organization and any organization identification number issued to the Issuer. The Issuer agrees to furnish the information described in clause (ii) of the preceding sentence to the Indenture Trustee promptly upon the Indenture Trustee’s request. Nothing in the foregoing shall be deemed to create an obligation of the Indenture Trustee to file any financing statement, continuation statements or amendment thereto.
1. Priority. The Issuer intends the Security Interests in favor of the Indenture Trustee to be prior to all other Encumbrances (other than Permitted Encumbrances) in respect of the Collateral, and the Issuer has taken and shall take or cause to be taken all actions necessary to obtain and maintain, in favor of the Indenture Trustee, for the benefit of the Noteholders and other Secured Parties, a first priority, perfected security interest in the Collateral, to the extent that perfection can be achieved by the filing of a UCC-1 financing statement in any UCC jurisdiction and/or other similar filings with the STB, subject to Permitted Encumbrances. With respect to Head Leases related to Portfolio Railcars where the lessee thereunder is the Canadian Subsidiary, 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
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security interest in the related Railcars including, without limitation, making all such filings, registrations and recordings with the Registrar General of Canada as are necessary or advisable to obtain and maintain a first priority, perfected security interest in such Railcars (subject to Permitted Encumbrances). Notwithstanding the foregoing, the Issuer shall not be required to make any filings, registrations or recordation in Mexico or under any Provincial Personal Property Security Act or other non-federal legislation in Canada. The Indenture Trustee shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party under all applicable law in addition to, and not in limitation of, the other rights, remedies and recourses granted to the Indenture Trustee by this Master Indenture or any law relating to the creation and perfection of security interests in the Collateral.
2. Continuance of Security.
(a) Except as otherwise provided under “Releases” in subsection 4(e) below, the Security Interests created under this Master Indenture shall remain in force as continuing security to the Indenture Trustee, for the benefit of the Noteholders and other Secured Parties, until the repayment and performance in full of all Secured Obligations, notwithstanding any intermediate payment or satisfaction of any part of the Secured Obligations or any settlement of account or any other act, event or matter whatsoever, and shall secure Secured Obligations, including, without limitation, the ultimate balance of the moneys and liabilities hereby secured.
(b) No assurance, security or payment which may be avoided or adjusted under the law, including under any enactment relating to bankruptcy or insolvency, and no release, settlement or discharge given or made by the Indenture Trustee on the faith of any such assurance, security or payment, shall prejudice or affect the right of the Indenture Trustee to recover the Secured Obligations from the Issuer (including any moneys which it may be compelled to pay or refund under the provisions of any applicable insolvency legislation of any applicable jurisdiction and any costs payable by it pursuant to or otherwise incurred in connection therewith) or to enforce the Security Interests granted under this Master Indenture to the full extent of the Secured Obligations and accordingly, if any release, settlement or discharge is or has been given hereunder and there is subsequently any such avoidance or adjustment under the law, it is expressly acknowledged and agreed that such release, settlement or discharge shall be void and of no effect whatsoever.
(c) If a Responsible Officer of the Indenture Trustee shall have received written notice from a Secured Party or the Issuer or Administrator that the Issuer may be insolvent pursuant to the provisions of any applicable insolvency legislation in any relevant jurisdiction as at the date of any payment made by the Issuer to the Indenture Trustee (provided that the Indenture Trustee shall have no duty to inquire or investigate and shall not be deemed to have knowledge of same absent written notice received by a Responsible Officer of the Indenture Trustee), the Indenture Trustee shall retain the Security Interests contained in or created pursuant to this Master Indenture until the expiration of a period of one month plus such statutory period within which any assurance, security, guarantee or payment can be avoided or invalidated after the payment and discharge in full of all Secured Obligations notwithstanding any release, settlement, discharge or arrangement which may be given or made by the Indenture Trustee on, or as a consequence of, such payment or discharge of liability.
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3. No Transfer of Duties. The Security Interests granted hereby are granted as security only and shall not (i) transfer or in any way affect or modify, or relieve the Issuer from, any obligation to perform or satisfy any term, covenant, condition or agreement to be performed or satisfied by the Issuer under or in connection with this Master Indenture or any Issuer Document or any Collateral or (ii) impose any obligation on any of the Secured Parties or the Indenture Trustee to perform or observe any such term, covenant, condition or agreement or impose any liability on any of the Secured Parties or the Indenture Trustee for any act or omission on the part of the Issuer relative thereto or for any breach of any representation or warranty on the part of the Issuer contained therein or made in connection therewith unless otherwise expressly provided therein.
4. Collateral.
(a) Generally. On each Closing Date, all Instruments, Chattel Paper, Securities or other documents, representing or evidencing Collateral (to the extent not held by the Servicer pursuant to the terms of the Servicing Agreement) shall be delivered to and held by or on behalf of the Indenture Trustee on behalf of the Secured Parties pursuant hereto all in form and substance reasonably necessary to perfect the pledge of such Collateral. Subject to subsection (e) under this heading, until the termination of the Security Interest granted hereby, if the Issuer shall acquire (by purchase, contribution, substitution, replacement or otherwise) any additional Collateral evidenced by Instruments or Chattel Paper at any time or from time to time after the date hereof, the Issuer shall promptly pledge the Collateral so evidenced as security for the Secured Obligations with the Indenture Trustee and deliver same to the custodial possession of the Servicer in accordance with Section 5.04(v), and the Servicer shall accept under this Master Indenture such delivery.
(b) Limitation on Non-Severable Mixed Riders. The percentage of Portfolio Railcars in the aggregate (measured by Adjusted Value) contained on Non-Severable Mixed Riders shall not exceed [______]% of the Portfolio Railcars in the aggregate (measured by Adjusted Value).
(c) Safekeeping. The Indenture Trustee agrees to maintain the Collateral received by it and all records and documents relating thereto at such address or addresses as may from time to time be specified by the Indenture Trustee in writing to each Secured Party and the Issuer. The Indenture Trustee shall keep all Collateral and related documentation in its possession separate and apart from all other property that it is holding in its possession and from its own general assets and shall maintain accurate records pertaining to the Permitted Investments and Indenture Accounts included in the Collateral in such a manner as shall enable the Indenture Trustee, the Secured Parties and the Issuer to verify the accuracy of such record keeping. The Indenture Trustee’s books and records shall at all times show that to the extent that any Collateral is held by the Indenture Trustee such Collateral shall be held as agent of and custodian for the Secured Parties and is not the property of the Indenture Trustee. The Indenture Trustee will promptly report to each Secured Party and the Issuer any failure on its part to hold the Collateral as provided in this subsection and will promptly take appropriate action to remedy any such failure.
(d) Notifications. The Indenture Trustee at the expense of the Issuer shall promptly forward to the Issuer and the Servicer a copy of each notice, request, report, or other document
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relating to any Issuer Document included in the Collateral that is received by a Responsible Officer of the Indenture Trustee from any Person other than the Issuer or the Servicer on and after the Closing Date.
(e) Releases. If at any time all or any part of the Collateral is to be sold, transferred, assigned or otherwise disposed of by the Issuer or the Indenture Trustee or any Person on its or their behalf (but in any such case only as required or permitted by the Operative Agreements), the Indenture Trustee agrees, upon receipt of written notice from the Issuer or the Administrator, which notice shall be delivered at least five (5) Business Days prior to such sale, transfer, assignment or disposal, on or prior to the date of such sale, transfer, assignment or disposal (but not to be effective until the date of such sale, transfer, assignment or disposal) [______] at the expense of the Issuer, to execute such instruments of release prepared by the Issuer or the Administrator, in recordable form, if necessary, in favor of the Issuer or any other Person as the Issuer or the Administrator may reasonably request, deliver the relevant part of the Collateral in its possession to the Issuer, otherwise release the Security Interest evidenced by this Master Indenture on such Collateral and release and deliver such Collateral to the Issuer and issue confirmation, to the relevant purchaser, transferee, assignee, insurer, and such other Persons as the Issuer may direct in writing, upon being requested to do so by the Issuer, that the relevant Collateral is no longer subject to the Security Interests. Any such release to the Issuer shall be deemed to release or reassign as appropriate in respect of the Collateral such grants and assignments arising hereunder.
At the written request of the Issuer, upon the payment in full of all Secured Obligations, including, without limitation, the payment in full in cash of all unpaid principal of and accrued interest on the Notes and all actual and contingent amounts (other than inchoate indemnification amounts) payable under the Hedge Agreements, the Indenture Trustee shall release the Security Interests in the Portfolio and the other Collateral hereunder. In connection therewith, the Indenture Trustee agrees, at the expense of the Issuer and without the necessity of any consent from any Secured Party, to execute such instruments of release, in recordable form if necessary, in favor of the Issuer as the Issuer may reasonably request in respect of the release of the Portfolio and the other Collateral from the Security Interests, and to otherwise release the security interests evidenced by this Master Indenture in and with respect to such Collateral to the Issuer and to issue confirmation to such Persons as the Issuer may direct, upon being requested to do so by the Issuer, that such Collateral is no longer subject to the Security Interests.
In connection with an Optional Redemption, concurrently with the deposit of the Redemption Price into the Redemption/Defeasance Account, if such Optional Redemption shall effect a redemption in whole of a Class or Series of Notes then Outstanding, the Indenture Trustee shall be deemed to have been authorized to permit a release of Collateral in accordance with this paragraph. In order to effect any such Collateral release, the Servicer on behalf of the Issuer will identify in a Release Identification Letter a pool of individual Railcars and Leases (i) that were originally acquired by the Issuer on or prior to the issuance date of the Class or Series being redeemed or substituted therefor, and (ii) that if such pool were released from the lien of this Master Indenture, would not result in (A) the Issuer being in violation of the Concentration Limits immediately after such proposed release of Collateral, (B) the Issuer’s remaining Portfolio Railcars immediately after such proposed release of Collateral having an average age which is more than [______]% greater than the average age of the Issuer’s remaining Portfolio
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Railcars immediately prior to such proposed release of Collateral, (C) the Issuer’s remaining Portfolio Leases immediately after such proposed release of Collateral having an average remaining term which is less than [______]% of the average remaining term of the Issuer’s Portfolio Leases immediately prior to such proposed release of Collateral, (D) the Book LTV Ratio immediately after such proposed release of Collateral being greater than the Book LTV Ratio immediately prior to such proposed release of Collateral and (E) the Current LTV Ratio immediately after such proposed release of Collateral being greater than the Current LTV Ratio immediately prior to such proposed release of Collateral. For this purpose:
“Release Identification Letter” means a letter from the Servicer (on behalf of the Issuer) addressed to the Indenture Trustee that identifies a pool of Railcars and Leases referred to in the preceding paragraph and certifies as to the satisfaction of the conditions in clause (ii) of the preceding paragraph. The Indenture Trustee shall be entitled to rely conclusively and exclusively on a Release Identification Letter without further investigation in connection with any release contemplated by the preceding paragraph.
“Book LTV Ratio” means, as of any date of determination, a ratio equivalent to a fraction, the numerator of which is the Outstanding Principal Balance of the Equipment Notes as of such date of determination, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such date of determination.
“Current LTV Ratio” means, as of any date of determination, a ratio equivalent to a fraction, the numerator of which is the Outstanding Principal Balance of the Equipment Notes as of such date of determination, and the denominator of which is the aggregate Special Appraised Value of the Portfolio Railcars as of such date of determination.
“Special Appraised Value” means the value assigned to the Railcars by Rail Solutions, Inc., Railroad Appraisal Associates or another independent railcar appraiser that is of comparable standing and reputation in the good faith judgment of the Servicer, as performed no earlier than ninety (90) days prior to the release date and obtained by the Servicer at the cost of the Issuer.
5. Exercise of the Issuer’s Rights Concerning the Servicing Agreement. The Issuer hereby agrees that, whether or not an Event of Default has occurred and is continuing, so long as this Master Indenture has not been terminated and the Security Interests on the Collateral released, the Indenture Trustee (acting at the Direction of the Requisite Majority) shall have the exclusive right to exercise and enforce all of the rights of the Issuer set forth in Sections 8.2, 8.3, 8.5 (other than the right to propose the list of replacement servicers pursuant to Section 8.5(b)) and 8.6 of the Servicing Agreement (including, without limitation, the rights to deliver all notices, declare a Servicer Termination Event, terminate the Servicing Agreement, elect to replace the Servicer and/or elect to appoint a Successor Servicer and select any replacement Servicer, and the right to increase the Servicing Fee and/or add an incentive fee payable to any such Successor Servicer); provided that so long as no Event of Default has occurred and is continuing, the Issuer shall retain the non-exclusive right to approve the list of proposed replacement Servicers (such approval not to be unreasonably withheld or delayed) and to deliver notices under Section 8.2 of the Servicing Agreement and declare a Servicer Termination Event thereunder. In furtherance of the foregoing, the Issuer hereby irrevocably appoints the Indenture
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Trustee as its attorney-in-fact to exercise all rights described in this Granting Clause provision in its place and stead.
DEFINITIONS
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Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Master Indenture, any Series Supplement or any Indenture Supplement shall include:
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THE NOTEs
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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 GBX LEASING 2022-1 LLC (THE “ISSUER”) THAT THIS NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE), (2) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE UNITED STATES TO A PERSON WHO IS NOT A U.S. PERSON (AS SUCH TERM IS DEFINED IN REGULATION S OF THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH REGULATION S OF THE SECURITIES ACT OR (4) IN A TRANSACTION COMPLYING WITH OR EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (SUBJECT IN THE CASE OF THIS CLAUSE (4) TO RECEIPT OF AN OPINION OF COUNSEL AND SUCH CERTIFICATES AND OTHER DOCUMENTS AS ARE REQUIRED UNDER THE INDENTURE REFERRED TO BELOW), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
In the case of Class A Equipment Notes or Class B Equipment Notes:
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BY ITS ACQUISITION OF THIS NOTE, EACH PURCHASER AND TRANSFEREE (AND ITS FIDUCIARY, IF APPLICABLE) WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED EITHER THAT (A) IT IS NOT AND IS NOT USING THE ASSETS OF AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, A “PLAN” AS DEFINED BY AND SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR OTHER PLAN’S INVESTMENT IN SUCH ENTITY (EACH, A “BENEFIT PLAN”), OR A GOVERNMENTAL PLAN, NON-U.S. PLAN OR CHURCH PLAN SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”), OR (B) THE PURCHASE AND HOLDING OF SUCH NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW.
Additionally, if a purchaser or transferee is a BENEFIT Plan, it will be deemed to represent by its purchase or acquisition of thIS Note (or an interest therein) that (i) NONE OF THE TRANSACTION PARTIES HAVE provided any investment advice within the meaning OF SECTION 3(21) OF ERISA to the benefit Plan, or TO ANY fiduciary or other person investing on behalf of the BENEFIT Plan or who otherwise has discretion or authority over the investment and management of “plan assets” OF THE BENEFIT PLAN, IN CONNECTION WITH ITS ACQUISITION OF THIS NOTE and (ii) NO TRANSACTION PARTY is acting as a fiduciary to the BENEFIT Plan in connection with the BENEFIT Plan’s purchase or acquisition of thIS Note.
In the case of Class C Equipment Notes or Class R Notes:
BY ITS ACQUISITION OF THIS NOTE, EACH PURCHASER AND TRANSFEREE (AND ITS FIDUCIARY, IF APPLICABLE) WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (A) IT IS NOT AND IS NOT USING THE ASSETS OF AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, A “PLAN” AS DEFINED BY AND SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR OTHER PLAN’S INVESTMENT IN SUCH ENTITY AND (B) IT IS NOT AND IS NOT USING THE ASSETS OF A GOVERNMENTAL PLAN, NON-U.S. PLAN OR CHURCH PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.
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In the case of Book-Entry Notes:
THIS NOTE IS A GLOBAL BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE REFERRED TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO BELOW.
In the case of a Note issued with original issue discount, as defined in Section 1271 et seq. of the Code:
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED. FOR INFORMATION REGARDING THE ISSUE DATE, ISSUE PRICE, YIELD TO MATURITY AND THE AMOUNT OF OID, PLEASE CONTACT [ ], ATTN: [ ]
In the case of Subordinated Notes:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM
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SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.
In the case of Subject Notes:
EACH NOTEHOLDER OF THIS NOTE AGREES (AND EACH APPLICABLE PERSON BY VIRTUE OF ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE (OR BY VIRTUE OF AGREEING TO ACT AS AN AGENT, REPRESENTATIVE OR INTERMEDIARY OF OR WITH RESPECT TO THE HOLDER OF SUCH A BENEFICIAL INTEREST) IS DEEMED TO AGREE) THAT THIS NOTE MAY NOT BE TRANSFERRED, AND NO TRANSFER (OR PURPORTED TRANSFER) OF ALL OR ANY PART OF THIS NOTE (OR ANY DIRECT OR INDIRECT ECONOMIC OR BENEFICIAL INTEREST THEREIN) WHETHER TO THE INITIAL NOTEHOLDER, ANOTHER NOTEHOLDER OR TO A PERSON THAT IS NOT A NOTEHOLDER (ANY OF THESE, A “TRANSFEREE”) SHALL BE EFFECTIVE, AND TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW ANY SUCH TRANSFER (OR PURPORTED TRANSFER) SHALL BE VOID AB INITIO, AND NO PERSON SHALL OTHERWISE BECOME A NOTEHOLDER OF THIS NOTE (OR A HOLDER OF ANY DIRECT OR INDIRECT BENEFICIAL INTEREST HEREIN), UNLESS: (I) (A) EITHER (I) THE TRANSFEREE (OR, IF THE TRANSFEREE IS A DISREGARDED ENTITY FOR U.S. FEDERAL INCOME TAX PURPOSES, THE SOLE OWNER OF THE TRANSFEREE) IS NOT AND WILL NOT BECOME FOR U.S. FEDERAL INCOME TAX PURPOSES A PARTNERSHIP, SUBCHAPTER S CORPORATION OR GRANTOR TRUST (EACH SUCH ENTITY, A “FLOW-THROUGH ENTITY”) OR (II) IF THE TRANSFEREE (OR, IF THE TRANSFEREE IS A DISREGARDED ENTITY FOR U.S. FEDERAL INCOME TAX PURPOSES, THE SOLE OWNER OF THE TRANSFEREE) IS OR BECOMES A FLOW-THROUGH ENTITY, THEN EITHER (X) NONE OF THE DIRECT OR INDIRECT BENEFICIAL OWNERS OF ANY OF THE INTERESTS IN THE TRANSFEREE HAVE OR EVER WILL HAVE ALL OR SUBSTANTIALLY ALL THE VALUE OF ITS INTEREST IN THE TRANSFEREE ATTRIBUTABLE TO THE INTEREST OF THE TRANSFEREE IN THIS NOTE, ANY OTHER SUBJECT NOTES, OTHER INTEREST (DIRECT OR INDIRECT) IN THE ISSUER, OR ANY INTEREST CREATED UNDER THE MASTER INDENTURE OR (Y) IT IS NOT AND WILL NOT BE A PRINCIPAL PURPOSE OF THE ARRANGEMENT INVOLVING THE INVESTMENT OF THE TRANSFEREE IN THIS NOTE TO PERMIT ANY PARTNERSHIP TO SATISFY THE ONE HUNDRED (100) PARTNER LIMITATION OF SECTION 1.7704-1(H)(1)(II) OF THE TREASURY REGULATIONS NECESSARY FOR SUCH PARTNERSHIP NOT TO BE CLASSIFIED AS A PUBLICLY TRADED PARTNERSHIP UNDER THE CODE, (B) THE TRANSFEREE WILL NOT SELL, ASSIGN, TRANSFER OR OTHERWISE CONVEY ANY PARTICIPATING INTEREST IN THIS NOTE OR ANY FINANCIAL INSTRUMENT OR CONTRACT THE VALUE OF WHICH IS DETERMINED BY REFERENCE IN WHOLE OR IN PART TO THIS NOTE, AND (C) IT IS NOT ACQUIRING, AND WILL NOT SELL, TRANSFER, ASSIGN, PARTICIPATE, PLEDGE OR OTHERWISE DISPOSE OF, THIS NOTE (OR INTEREST THEREIN) OR CAUSE THIS NOTE (OR INTEREST THEREIN) TO BE MARKETED, ON OR THROUGH AN “ESTABLISHED SECURITIES MARKET” WITHIN THE MEANING
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OF SECTION 7704(B) OF THE CODE, INCLUDING, WITHOUT LIMITATION, AN INTERDEALER QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS, AND (II) AFTER SUCH TRANSFER THERE WOULD BE NO MORE THAN NINETY (90) MEMBERS OF THE LIMITED LIABILITY COMPANY THAT IS THE ISSUER (INCLUDING AS MEMBERS, SOLELY FOR PURPOSES OF THIS CLAUSE (II), NOTEHOLDERS OF ANY SUBJECT NOTES (AND HOLDERS OF ANY BENEFICIAL INTEREST THEREIN) AND HOLDERS OF ANY OTHER INSTRUMENTS SUBJECT TO THE TRANSFER RESTRICTIONS OF SECTION 2.17(a) OF THE MASTER INDENTURE). ANY SUBSEQUENT TRANSFER OF THIS NOTE BY A TRANSFEREE SHALL BE SUBJECT TO THE LIMITATIONS OF THIS PARAGRAPH AND SHALL BE VOID AB INITIO, AND NO PERSON SHALL OTHERWISE BECOME A NOTEHOLDER OF THIS NOTE, UNLESS THIS PARAGRAPH AND THE PROVISIONS OF SECTION 2.17(a) OF THE MASTER INDENTURE ARE SATISFIED. {FOR DEFINITIVE NOTES ONLY: THE AUTHORIZED AGENT SHALL NOT REGISTER ANY TRANSFER OF THIS NOTE UNLESS THE AUTHORIZED AGENT (IN CONSULTATION WITH THE ISSUER) HAS CONFIRMED THAT AFTER SUCH TRANSFER, THE REQUIREMENTS OF SECTION 2.17(a) OF THE MASTER INDENTURE SHALL HAVE BEEN SATISFIED}. THE ISSUER SHALL NOT RECOGNIZE ANY PROHIBITED TRANSFER DESCRIBED IN THIS PARAGRAPH, INCLUDING WITHOUT LIMITATION BY (I) REDEEMING THE TRANSFEROR’S INTEREST, OR (II) RECOGNIZING THE TRANSFEREE AS A NOTEHOLDER OR OTHERWISE RECOGNIZING ANY RIGHT OF THE TRANSFEREE (INCLUDING, WITHOUT LIMITATION, ANY RIGHT OF THE TRANSFEREE TO RECEIVE PAYMENTS OR OTHER DISTRIBUTIONS FROM THE ISSUER, DIRECTLY OR INDIRECTLY).
EACH NOTEHOLDER OF THIS NOTE AND EACH OWNER OF A BENEFICIAL INTEREST IN THIS NOTE REPRESENTS AND AGREES THAT IF IT IS PART OF A SECTION 385 EXPANDED GROUP (OR IS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO A SECTION 385 EXPANDED GROUP), AND IF THE ISSUER IS TREATED AS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO SUCH SECTION 385 EXPANDED GROUP (ASSUMING SOLELY FOR THIS PURPOSE THAT THIS NOTE IS TREATED FOR U.S. FEDERAL INCOME TAX PURPOSES AS EQUITY), THEN NEITHER IT NOR ANY MEMBER OF (NOR ANY SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY WITH RESPECT TO) SUCH SECTION 385 EXPANDED GROUP WILL OWN OR WILL THEREAFTER (FOR SO LONG AS THIS NOTES IS SO OWNED) OWN ANY NOTES (THAT ARE OUTSTANDING FOR U.S. FEDERAL INCOME TAX PURPOSES) OF A CLASS OR SERIES SENIOR TO THIS NOTE (“SENIOR NOTES”), UNLESS SUCH NOTEHOLDER (OR OWNER) HAS EITHER (1) OBTAINED AND PROVIDED TO THE NOTE REGISTRAR AND THE ISSUER AN OPINION OF U.S. TAX COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT, UNDER THEN-EXISTING LAW, SUCH ACQUISITION AND OWNERSHIP OF SENIOR NOTES SHOULD NOT (ASSUMING SOLELY FOR THIS PURPOSE THAT THIS NOTE IS TREATED FOR U.S. FEDERAL INCOME TAX PURPOSES AS EQUITY) CAUSE SECTION 385 OF THE CODE, AND ANY PROPOSED,
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TEMPORARY, OR FINAL TREASURY REGULATIONS PROMULGATED THEREUNDER, TO APPLY TO SUCH SENIOR NOTES SO AS TO CAUSE ANY SUCH SENIOR NOTES TO BE RECLASSIFIED AS (OR GIVING RISE TO) EQUITY FOR U.S. FEDERAL INCOME TAX PURPOSES OR (2) AFTER HAVING PROVIDED THE NOTE REGISTRAR AND THE ISSUER SUCH INFORMATION, REPRESENTATIONS AND COVENANTS AS MAY BE REQUIRED BY THE ISSUER (IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER IN ITS SOLE DISCRETION) RELATING TO THE RISK OF RECHARACTERIZATION OF ANY SUCH SENIOR NOTES AS EQUITY UNDER TREASURY REGULATION SECTION 1.385-3, OBTAINS A WRITTEN CONFIRMATION FROM THE ISSUER THAT THE FOREGOING OPINION IS NOT REQUIRED. THE PRECEDING SENTENCE SHALL NOT APPLY IF EACH MEMBER OF THE SECTION 385 EXPANDED GROUP THAT INCLUDES SUCH NOTEHOLDER OR BENEFICIAL OWNER (OR WITH RESPECT TO WHICH SUCH NOTEHOLDER OR BENEFICIAL OWNER IS A SECTION 385 CONTROLLED PARTNERSHIP OR DISREGARDED ENTITY) IS A MEMBER OF THE SAME CONSOLIDATED GROUP (AS DESCRIBED IN TREASURY REGULATION SECTION 1.1502-1(H)) THAT FILES A CONSOLIDATED U.S. FEDERAL INCOME TAX RETURN.
In the case of any Note that is a U.S.-Restricted Note:
EACH NOTEHOLDER OF THIS NOTE AGREES (AND EACH APPLICABLE PERSON BY VIRTUE OF ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE (OR BY VIRTUE OF AGREEING TO ACT AS AN AGENT, REPRESENTATIVE OR INTERMEDIARY OF OR WITH RESPECT TO THE HOLDER OF SUCH A BENEFICIAL INTEREST) IS DEEMED TO AGREE) THAT THIS NOTE (AND ANY INTEREST THEREIN) MAY BE HELD ONLY BY UNITED STATES PERSONS AS DEFINED IN SECTION 7701(A)(30) OF THE CODE, AND THAT HE, SHE OR IT SHALL NOT MAKE ANY ISSUANCE, DELIVERY, SALE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE (OR ANY BENEFICIAL INTEREST IN THIS NOTE), AND ANY ISSUANCE, DELIVERY, SALE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE (OR ANY BENEFICIAL INTEREST IN THIS NOTE) WILL NOT BE EFFECTIVE AND WILL BE VOID AB INITIO, IF IT WOULD RESULT IN ANY PERSON THAT IS NOT A UNITED STATES PERSON HOLDING THIS NOTE OR ANY INTEREST THEREIN.
In the case of Notes, other than Subject Notes that, pursuant to Section 2.19(b), are to be reported as equity for U.S. federal income tax purposes:
EACH NOTEHOLDER OF THIS NOTE AGREES TO TREAT THIS NOTE AS DEBT FOR U.S. FEDERAL INCOME TAX PURPOSES.
In the case of Subject Notes that, pursuant to Section 2.19(b), are to be reported as equity for U.S. federal income tax purposes:
EACH NOTEHOLDER OF THIS NOTE AGREES TO TREAT THIS NOTE AS EQUITY FOR U.S. FEDERAL INCOME TAX PURPOSES.
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The Indenture Trustee may at any time, for the purpose of obtaining the satisfaction and discharge of this Master Indenture or for any other purpose, direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such moneys.
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If a holder (other than an Initial Purchaser) of a beneficial interest in the 144A Book-Entry Note wishes at any time to exchange its interest in the 144A Book-Entry Note for an interest in a Regulation S Book-Entry Note, or to transfer its interest in the 144A Book-Entry Note to a Person who wishes to take delivery thereof in the form of an interest in the Regulation S Book-Entry Note, the holder may, subject to the rules and procedures of DTC, give directions for the Indenture Trustee and Note Registrar to exchange or cause the exchange or transfer or cause the transfer of the interest for an equivalent beneficial interest in the Regulation S Book-Entry Note. Upon receipt by the Indenture Trustee and Note Registrar of (a) instructions given in accordance with DTC’s procedures from a DTC Participant directing the Indenture Trustee and Note Registrar to credit or cause to be credited a beneficial interest in the Regulation S Book-Entry Note in an amount equal to the beneficial interest in the 144A Book-Entry Note to be exchanged or transferred, (b) a written order given in accordance with DTC’s procedures containing information regarding the account of the depositaries for Euroclear or Clearstream or another Clearing Agency Participant, as the case may be, to be credited with the increase and the name of the account and (c) certificates in the forms of Exhibits A-5 and A-7, respectively, given by the Noteholder and the proposed transferee of the interest, the Indenture Trustee and Note Registrar shall instruct DTC to reduce the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred, and the Indenture Trustee and Note Registrar shall instruct DTC, concurrently with the reduction, to increase the principal amount of the Regulation S Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in the instructions a beneficial interest in the Regulation S Book-Entry Note equal to the reduction in the principal amount of the 144A Book-Entry Note.
Notwithstanding anything to the contrary herein, an Initial Purchaser may exchange beneficial interests in the Regulation S Temporary Book-Entry Note held by it for interests in the 144A Book-Entry Note only after delivery by the Initial Purchaser of instructions to DTC for the exchange, substantially in the form of Exhibit A-6 hereto. Upon receipt of the instructions provided in the preceding sentence, the Indenture Trustee and Note Registrar shall instruct DTC
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to reduce the principal amount of the Regulation S Temporary Book-Entry Note to be so transferred and shall instruct DTC to increase the principal amount of the 144A Book-Entry Note and credit or cause to be credited to the account of the placement agent a beneficial interest in the 144A Book-Entry Note having a principal amount equal to the amount by which the principal amount of the Regulation S Temporary Book-Entry Note was reduced upon the transfer pursuant to the instructions provided in the first sentence of this paragraph.
If a Book-Entry Note is exchanged for a Definitive Note, such Equipment Notes may be exchanged or transferred for one another only in accordance with such procedures as are substantially consistent with the provisions of the three immediately preceding paragraphs (including the certification requirements intended to ensure that the exchanges or transfers comply with Rule 144 or Regulation S, as the case may be) and as may be from time to time adopted by the Indenture Trustee.
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None of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such registration instructions. Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the Persons in whose name the Definitive Notes are registered in the Register as Noteholders hereunder. Neither the Issuer nor the Indenture Trustee shall be liable if the Indenture Trustee or the Issuer is unable to locate a qualified successor Noteholder.
Definitive Notes of a Series will be transferable and exchangeable for Definitive Notes of the same Series at the office of the Indenture Trustee or the office of a Note Registrar upon
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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.
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If temporary Definitive Notes of a Series are issued, the Issuer will cause Definitive Notes of such Series to be prepared without unreasonable delay. After the preparation of Definitive Notes of such Series, the temporary Definitive Notes shall be exchangeable for Definitive Notes upon surrender of such temporary Definitive Notes at the Corporate Trust Office of the Indenture Trustee, without charge to the Noteholder thereof. Upon surrender for cancellation of any one or more temporary Definitive Notes, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor Definitive Notes of the same Series, in authorized denominations and in the same aggregate principal amounts. Until so exchanged, such temporary Definitive Notes shall in all respects be entitled to the same benefits under this Master Indenture as Definitive Notes.
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INDENTURE ACCOUNTS; PRIORITY OF PAYMENTS
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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.
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For the avoidance of doubt, if an Event of Default has occurred and is continuing, the Net Disposition Proceeds will be included in the Available Collections Amount and paid pursuant to Section 3.11(b).
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Unless otherwise provided in a Series Supplement, each Liquidity Facility will be secured by the lien of this Master Indenture.
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DEFAULT AND REMEDIES
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No one or more Noteholders may use this Master Indenture to affect, disturb or prejudice the rights of another Noteholder or to obtain or seek to obtain any preference or priority not otherwise created by this Master Indenture and the terms of the Notes over any other Noteholder or to enforce any right under this Master Indenture and a related Series Supplement, except in the manner herein provided.
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REPRESENTATIONS, WARRANTIES AND COVENANTS
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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.
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In accordance with the LLC Agreement, no issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer (or other interest in the Issuer treated as equity for U.S. federal income tax purposes) will be effective, and any such issuance, delivery, sale transfer or other disposition will be void ab initio, if it would result in the Issuer being classified as an association (or a publicly traded partnership) taxable as a corporation for U.S. federal income tax purposes or if the Issuer would be required to withhold on any distributions or allocations to its
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equity holders under Sections 871, 881, 1441, 1442, 1445, 1446, 1471 or 1472 of the Code. In addition, any such issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer, other than to a Permitted Holder, will require Rating Agency Confirmation.
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In the case of any Optional Modification, the Issuer prior to undertaking such Optional Modification shall have determined, based upon consultation with the Servicer, that the Optional Modification is not expected to decrease the marketability of the Portfolio Railcar as a result of the expenditure on such Optional Modification.
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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.
THE INDENTURE TRUSTEE
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The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the Direction of the Noteholders in accordance herewith relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Master Indenture and any Series Supplement.
The Indenture Trustee may execute any of the obligations or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder.
The Indenture Trustee may consult with counsel, accountants and other experts as to any matter relating to this Master Indenture and any Opinion of Counsel or any advice of such counsel, accountants and other experts shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel.
The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Master Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or Direction of any of the Noteholders, pursuant to the provisions of this Master Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby.
The Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Master Indenture shall in any event require the Indenture Trustee to perform, or be responsible or liable for the manner of performance of, any obligations of the Issuer, the Servicer or the Administrator under this Master Indenture and any Series Supplement or any of the Operative Agreements.
The Indenture Trustee shall not be liable for any losses or Taxes (except for Taxes relating to any compensation, fees or commissions of any entity acting in its capacity as
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Indenture Trustee hereunder) or in connection with the selection of Permitted Investments or for any investment losses resulting from Permitted Investments unless the entity that is the Indenture Trustee is the issuer or the obligor of such a Permitted Investment.
When the Indenture Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.01(f) or 4.01(g), such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors’ rights generally.
The Indenture Trustee shall not be charged with knowledge of an Event of Default unless a Responsible Officer of the Indenture Trustee obtains actual knowledge of such event or receives written notice of such event from the Issuer, the Administrator or Noteholders owning Notes aggregating not less than 10% of the Outstanding Principal Balance of the Notes.
The Indenture Trustee shall have no duty to monitor the performance of the Issuer, the Servicer, the Administrator or any other party to the Operative Agreements, nor shall it have any liability in connection with the malfeasance or nonfeasance by such parties. The Indenture Trustee shall have no liability in connection with compliance by the Issuer, the Servicer, the Administrator or any Lessee under a Lease with statutory or regulatory requirements related to any Railcar or any Lease. The Indenture Trustee shall not make or be deemed to have made any representations or warranties with respect to any Railcar or any Lease or the validity or sufficiency of any assignment or other disposition of any Railcar or any Lease.
The Indenture Trustee shall not be liable for any error of judgment reasonably made in good faith by an officer or officers of the Indenture Trustee, unless it shall be determined by a court of competent jurisdiction in a non-appealable judgment that the Indenture Trustee was negligent in making such judgment.
The Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless so requested in writing by the Noteholders evidencing not less than 25% of the principal amount of the Equipment Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Servicing Agreement or any other Operative Agreement, the Indenture Trustee may require reasonable indemnity satisfactory to it against such cost, expense or liability as a condition to so proceeding; the reasonable expense of every such examination shall be paid by the Person making such request or, if paid by the Indenture Trustee, shall be reimbursed by the Person making such request upon demand.
The Indenture Trustee shall have no obligation to invest and reinvest any cash held in the Indenture Accounts in the absence of timely and specific written investment direction from the Administrator or as expressly provided herein. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon in accordance with the
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Operative Agreements. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity in accordance with the Operative Agreements or by any other Person or the failure of the Administrator to provide timely written investment direction.
In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out or caused by a Force Majeure Event; it being understood that the Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. “Force Majeure Event” means and includes any events, circumstances or causes whatsoever beyond a Person’s reasonable control, as the case may be, including, without limitation, governmental restrictions, regulations or controls, mechanical breakdowns, shortages of or inability to obtain labor, fuel, steam, water, electricity or materials, acts of God, inability to obtain governmental approvals or consents, adjustment of insurance claims, enemy action, national emergency, epidemics, pandemics, landslides, lightning, earthquake, civil commotion, fires, floods or any other casualties, events or circumstances; provided, however, that such Person shall have used reasonable efforts to perform its obligations notwithstanding such occurrences.
In the event that the Indenture Trustee is also acting as Paying Agent or Note Registrar hereunder or under any Operative Agreement, the rights and protections afforded to the Indenture Trustee pursuant to this Article VI shall also be afforded to such Paying Agent and Note Registrar.
In no event shall the Indenture Trustee be liable of failure to perform its duties hereunder if such failure is a direct or proximate result of another party’s failure to perform its obligations hereunder.
The Indenture Trustee shall not be accountable or responsible in any manner whatsoever for any action of the Issuer, the Administrator or the Servicer, or for the application of moneys by the Servicer until such time as funds are received by the Indenture Trustee.
If the Indenture Trustee receives different or conflicting instructions or directions from more than one group of Noteholders of a given Class, each of which is provided in accordance with this Master Indenture, the Indenture Trustee shall act in accordance with the instructions or directions provided by the group of Noteholders representing the larger aggregate principal amount of Equipment Notes then Outstanding.
The Indenture Trustee shall not be required to take any action it is directed to take under this Indenture if the Indenture Trustee reasonably determines in good faith that the action so directed would involve the Indenture Trustee in personal liability, be unjustly prejudicial to the non-directing Noteholders, is inconsistent with this Master Indenture or other Operative Agreement or is contrary to law.
The Indenture Trustee’s receipt of reports and information hereunder shall not constitute notice of any information contained therein or determinable therefrom, including but not limited to a party’s compliance with covenants under this Master Indenture.
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SUCCESSOR TRUSTEES
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INDEMNITY
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SUPPLEMENTAL INDENTURES
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Prior to the execution of any Indenture Supplement issued pursuant to this Section 9.02, the Issuer shall provide a written notice to each Rating Agency setting forth in general terms the substance of any such Indenture Supplement.
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The ability of the Issuer to issue such Additional Series and the obligation of the Indenture Trustee to authenticate and deliver the Notes of such Additional Series and to execute and deliver the related Series Supplement is subject to the satisfaction of the following conditions:
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Upon satisfaction of the above conditions, the Indenture Trustee shall execute the Series Supplement and authenticate and deliver the Notes of such Additional Series.
MODIFICATION AND WAIVER
It shall not be necessary for the consent of the Noteholders under this Section 10.01 to approve the particular form of any proposed amendment, modification or waiver, but it shall be sufficient if such consent approves the substance thereof. Any such amendment, modification or waiver approved by the Direction of a Requisite Majority (and, if applicable, as to which Rating Agency Confirmation is given) will be binding on all Noteholders.
The Issuer shall give each Rating Agency prior notice of any amendment under this Section 10.01 and any amendments of its constitutive documents by the Issuer, and, after an amendment under this Section 10.01 becomes effective, the Issuer shall send to the Noteholders and each Rating Agency a notice briefly describing such amendment. Any failure of the Issuer to send such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment.
After an amendment, modification or waiver under this Section 10.01 becomes effective, it shall bind every Noteholder, whether or not notation thereof is made on any Note held by such Noteholder.
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SUBORDINATION
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DISCHARGE OF INDENTURE; DEFEASANCE
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If the Issuer exercises its legal defeasance option, payment of any Notes subject to such legal defeasance may not be accelerated because of an Event of Default. If the Issuer exercises its covenant defeasance option, payment of the Notes may not be accelerated because of an Event of Default (other than with respect to a failure to comply with Section 5.02(j), 4.01(a), 4.01(b), 4.01(e) and 4.01(f)).
Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the Indenture Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.
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MISCELLANEOUS
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if to the Issuer, the Canadian Subsidiary or the Administrator:
c/o GBX Leasing, LLC
One Centerpointe Drive, Suite 200
Lake Oswego, Oregon 97035
Attention: General Counsel
Email: martin.baker@gbrx.com
If to the Servicer:
Greenbrier Management Services, LLC
One Centerpointe Drive, Suite 200
Lake Oswego, Oregon 97035
Attention: Equipment Accounting
if to the Indenture Trustee or the Paying Agent:
U.S. Bank Trust Company, National Association
425 Walnut Street, 6th Floor
CN-OH-W6CT
Cincinnati, OH 45202
Attention: GSF - GBXL 2022-1
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Facsimile: (513) 632-5511
E-mail: christopher.mckim@usbank.com
If to the Note Registrar:
U.S. Bank Trust Company, National Association
111 Fillmore Ave. East
St. Paul, MN 55107
Attention: Bondholder Services – GBXL 2022-1
if to a Hedge Provider:
the address specified in the applicable Series Supplement
if to a Liquidity Facility Provider:
the address specified in the applicable Series Supplement
if to a Rating Agency:
the address specified in the applicable Series Supplement
or addressed to any party at such other address as such party shall hereafter furnish to the other parties by written notice as provided above.
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[SIGNATURE PAGES FOLLOW]
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[Master Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Master Indenture to be duly executed, all as of the date first written above.
| GBX LEASING 2022-1 LLC By: GBX Leasing, LLC, its sole member By: ______________________________ |
| S-1 |
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[Master Indenture]
| U.S. Bank Trust Company, National Association, not in its individual capacity but solely as Indenture Trustee By: U.S. Bank National Association, not in its individual capacity but solely as securities intermediary as described herein By: |
| S-2 |
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[Master Indenture]
Annex A to Master Indenture: Defined Terms
“144A Book-Entry Note” means an Equipment Note sold in reliance on Rule 144A, represented by a single permanent global note in fully registered form, without coupons, the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for a 144A Book-Entry Note inscribed thereon and with such changes therein and such additional information as may be specified in the Series Supplement pursuant to which such Equipment Note is issued.
“AAR” means the Association of American Railroads or any successor thereto.
“Accounts” means all “accounts” as defined in Article 9 of the UCC, whether due or to become due, whether or not the right of payment has been earned by performance, and whether now owned or hereafter acquired or arising in the future, including Accounts Receivable from Affiliates of the Issuer.
“Accounts Receivable” means all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including, without limitation, all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Property, together with all of the Issuer’s right, title and interest, if any, in any goods or other property giving rise to such right to payment, including any rights to stoppage in transit, replevin, reclamation and resales, and all related security interests, Encumbrances and pledges, whether voluntary or involuntary, in each case whether now existing or owned or hereafter arising or acquired, and all Supporting Obligations related to the foregoing and all Accounts Receivable Records.
“Accounts Receivable Records” means (a) all original copies of all documents, instruments or other writings or electronic records or other records evidencing the Accounts Receivable, (b) all books, correspondence, credit or other files, records, ledger sheets or cards, invoices, and other papers relating to Accounts Receivable, including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Accounts Receivable, whether in the possession or under the control of the Issuer or any computer bureau or agent from time to time acting for the Issuer or otherwise, (c) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or lenders, and certificates, acknowledgments, or other writings, including, without limitation, lien search reports, from filing or other registration officers, (d) all credit information, reports and memoranda relating thereto and (e) all other written, electronic or other non-written forms of information related in any way to the foregoing or any Accounts Receivable.
“Act” has the meaning, with respect to any Noteholder, given to such term in Section 1.04(a).
“Additional Interest” means, with respect to a Series of Notes or any Class thereof, interest at the Stated Rate on the aggregate amount of any unpaid interest that is due and payable
| ANNEX A |
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[Master Indenture]
on the Notes of such Series and Class (including any unpaid portion of the Stated Interest Amount and any Additional Interest Amount).
“Additional Interest Amount” means, with respect to any Class of Notes in any Series of Notes, an amount equal to the Additional Interest on the aggregate amount of unpaid interest (including any unpaid portion of any Stated Interest Amounts and any Additional Interest Amount) that was due and payable on the Notes of such Series or Class on any prior Payment Date.
“Additional Notes” means the Notes evidencing any Additional Series issued by the Issuer from time to time subsequent to the Initial Closing Date.
“Additional Railcar” means each Railcar acquired by the Issuer (other than the Railcars identified on a schedule to the Series Supplement for the Initial Notes) subsequent to the Initial Closing Date in accordance with the conditions set forth in Section 5.03(b).
“Additional Series” means any Series issued by Issuer subsequent to the Initial Closing Date pursuant to a Series Supplement.
“Adjusted Value” means, for any individual Railcar as of any date of determination, (a) the Initial Appraised Value of such Railcar, adjusted downward as of each Payment Date after the Delivery Date of such Railcar due to depreciation at the greater of (i) the amount of depreciation determined based on straight line depreciation from the date of manufacture using an assumed 35-year useful life to a “10%” assumed residual/salvage value and (ii) the amount of depreciation that would be calculated under any subsequent depreciation methodology or general practice of marking down asset values attributable to a change in GBX Leasing’s corporate policy and practice after the Initial Closing Date (a “Depreciation Change”), plus (b) the cost of any Optional Modification or Required Modification, to the extent that GBX Leasing on its books of account would properly add such cost to the book value of such Railcar in accordance with U.S. GAAP, with the amount of such cost so added pursuant to this clause (b) to be depreciated in the same manner following its incurrence and addition to book. Following the receipt of all proceeds and third party payments associated with a casualty event with respect to a Railcar, its Adjusted Value will be deemed to be zero.
“Administrative Services Agreement” means the Administrative Services Agreement, dated as of the Initial Closing Date, among the Administrator, the Issuer and the Canadian Subsidiary, or any replacement administrative services agreement with a replacement Administrator.
“Administrator” means GBX Leasing, in its capacity as administrator under the Administrative Services Agreement, including its successors in interest and permitted assigns, until another Person shall have become the administrator under such agreement, after which “Administrator” shall mean such other Person.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with, such Person or is a director or officer of such Person; “control” of a Person means the possession, direct or indirect, of the power to
| ANNEX A |
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[Master Indenture]
direct or cause the direction of the management and policies of such Person, whether through the ownership of voting Stock, by contract or otherwise.
“Affirmative Issuer Action” means, a Permitted Discretionary Sale by the Issuer or a Replacement Exchange by the Issuer or the re-leasing of a Portfolio Railcar by the Issuer following the termination of or failure to renew the pre-existing Lease on such Portfolio Railcar.
“After-Tax Basis” means, with respect to any payment due to any Person, the amount of such payment supplemented by a further payment or payments so that the sum of all such payments, after reduction for all Taxes payable by such Person by reason of the receipt or accrual of such payments, shall be equal to the payment due to such Person.
“Aggregate Adjusted Borrowing Value” means, as of any date of determination, an amount equal to the sum of (i) the Adjusted Values (measured as of the last day of the month immediately preceding such date of determination) of all Portfolio Railcars, and (ii) the amounts on deposit in any Prefunding Accounts and the Optional Reinvestment Account as of such date.
“Agreed Currency” has the meaning given to such term in Section 13.06(a).
“Allocable Note Balance” means, with respect to any Railcar, an amount equal to the product of the Railcar Advance Rate and the Adjusted Value of such Railcar.
“Allocable Subordinated Note Balance” means, with respect to any Railcar and Subordinated Notes, an amount equal to the product of the Subordinated Railcar Advance Rate and the Adjusted Value of such Railcar.
“Applicable Law” means all applicable laws, rules, statutes, ordinances, regulations and orders of Governmental Authorities, including, without limitation, the applicable laws, rules, regulations and orders of any Railroad Authority.
“Applicable Person” means any Noteholder or beneficial owner of a beneficial interest in a Subject Note, and each agent or representative of or intermediary with respect to a holder of such a beneficial interest.
“Appraisal” means a desktop appraisal of a Railcar, i.e. an appraisal without a physical inspection of a Railcar, dated within ninety (90) days before the applicable Delivery Date of such Railcar by the applicable Appraiser to determine the Initial Appraised Value of such Railcar, and, if such Delivery Date is not a Closing Date, considering substantially similar factors in such determination as were considered in the Appraisal delivered in connection with the most recent Closing Date (or, if obtaining an Appraisal addressing such factors is no longer commercially feasible as a result of changes in market practice of railcar appraisers, then an appraisal that considers such factors in the valuation determination as are then commercially feasible to obtain in light of railcar appraisal market practices at that time).
“Appraiser” means RailSolutions, Inc., Railroad Appraisal Associates such other independent railcar appraiser that is of comparable standing and reputation as determined in the good faith judgment of the Servicer.
| ANNEX A |
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[Master Indenture]
“Asset Transfer Agreement” means any asset transfer agreement between the Issuer and one or more sellers of Railcars, in form and substance satisfactory to the Issuer and the applicable seller or sellers party thereto. The initial Asset Transfer Agreement is the Purchase and Contribution Agreement, dated as of the Initial Closing Date, among the Issuer, GBX Leasing and GBXL I.
“Assigned Agreements” has the meaning given to such term in the Granting Clauses hereunder.
“Assignment and Assumption” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Authorized Agent” means, with respect to the Notes of any Series, any authorized Paying Agent or Note Registrar for the Notes of such Series.
“Authorized Representative” of any entity means the person or persons authorized to act on behalf of such entity.
“Available Collections Amount” means, for any Payment Date, the amount of Collections in the Collections Account as of the Determination Date for such Payment Date, plus or minus, as applicable, the aggregate amount of all transfers to be made to or from the Collections Account pursuant to the Master Indenture, a Hedge Agreement or a Liquidity Facility (if any) during the period beginning on such Determination Date and ending on such Payment Date (including transfers from the Liquidity Reserve Account, the Expense Account or the Optional Reinvestment Account pursuant to Sections 3.04 and 3.05, respectively, and including any Servicer Advance), but at any time prior to an Event of Default, excluding any Net Disposition Proceeds deposited in the Collections Account (other than any amounts transferred to the Optional Reinvestment Account pursuant to Section 3.05).
“Balance” means, with respect to any Indenture Account as of any date, the sum of the cash deposits in such Indenture Account and the value of any Permitted Investments held in such Indenture Account as of such date, as determined in accordance with Section 1.02(k).
“Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code, 11 U.S.C. § 101 et. seq.
“Benefit Plan” has the meaning given to such term in Section 2.11(g)(i).
“Bill of Sale” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Book-Entry Notes” means the Regulation S Book-Entry Notes and the 144A Book-Entry Notes.
“Book LTV Ratio” has the meaning given to such term in paragraph 4(e) of the Granting Clause of this Master Indenture.
| ANNEX A |
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[Master Indenture]
“Books and Records” has the meaning given to such term in Section 5.04(y)(i).
“Books and Records Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York, Chicago, Illinois, Portland, Oregon, St. Paul, Minnesota or in the location of the primary Corporate Trust Office of the Indenture Trustee administering this Master Indenture (currently St. Paul, Minnesota and Cincinnati, Ohio for U.S. Bank Trust Co. as Indenture Trustee) are authorized by law to close.
“Canadian Lease Security Agreement” means that certain Canadian Lease Security Agreement dated as of the Initial Closing Date between the Canadian Subsidiary and the Indenture Trustee.
“Canadian Subsidiary” means GBX Leasing 2022-1 (Canada) Ltd., a British Columbia corporation.
“Capital Contribution” has the meaning given to such term in Section 3.17.
“Car Hire Lease” means a Lease pursuant to which the applicable Lessee pays rent in the form of car hire earnings.
“Cede” means Cede & Co., as nominee for DTC.
“Chattel Paper” means all “chattel paper” as defined in the UCC.
“Class” means with respect to a Series, one or more classes of Notes of such Series (which class or classes shall be specified by the related Series Supplement) having the same rights to payment as all other Notes of such class.
“Class Account” has the meaning given to such term in Section 3.01(a).
“Class A Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class B Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Class B Purchase Right” has the meaning given to such term in Section 4.11.
“Class B Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.11.
“Class B Purchasers” has the meaning given to such term in Section 4.11.
“Class C Equipment Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
| ANNEX A |
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[Master Indenture]
“Class C Purchase Right” has the meaning given to such term in Section 4.12.
“Class C Purchase Right Outstanding Priority Balance” has the meaning given to such term in Section 4.12.
“Class C Purchasers” has the meaning given to such term in Section 4.12.
“Class R Notes” with respect to a Series, means the Classes of Notes identified as such in the related Series Supplement.
“Clearing Agency Participant” means a Person who has an account with Clearstream.
“Clearstream” means Clearstream Banking, a French société anonyme.
“Closing Date” means in the case of (i) the Initial Notes, the Initial Closing Date, and (ii) with any other Series (or Class thereof), the date identified as such in the related Series Supplement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” has the meaning given to such term in the Granting Clause.
“Collateral Liquidation Notice” means a written Direction from the Requisite Majority directing the Indenture Trustee to sell the Portfolio Railcars in accordance with Section 4.02(b).
“Collection Period” means, with respect to each Payment Date other than the first Payment Date, the period commencing on the first day of the calendar month immediately preceding the month in which such Payment Date occurs and ending on the last day of such calendar month and, in the case of the first Payment Date in respect of a Series, the period commencing on the Series Issuance Date (or the Initial Closing Date with respect to the Initial Notes issued hereunder) for such Series and ending on the last day of the first full calendar month following such Series Issuance Date or the Initial Closing Date, as applicable.
“Collections” for any period means all amounts (without duplication) received by the Issuer or by any Person (including without limitation, the Payment Processing Agent) receiving such amounts on behalf of the Issuer, including, but not limited to, (i) Lease Payments, (ii) amounts received in respect of claims for damages or in respect of any breach of contract for nonpayment of the foregoing, (iii) the Net Disposition Proceeds of any Railcar Disposition (except for any portion of such Net Disposition Proceeds that the Issuer shall direct to be deposited into the Optional Reinvestment Account), (iv) amounts transferred from the Optional Reinvestment Account either at Issuer’s election or due to a failure to acquire or fund an Additional Railcar within the applicable Replacement Period; (v) investment income, if any, on all amounts on deposit in the Indenture Accounts, (vi) any proceeds or other payments received under the Relative Documents, (vii) any portion of the Net Proceeds of the issuance of Notes deposited in the Collections Account on a Closing Date, (viii) net payments received by the Issuer under Hedge Agreements (other than payments made as, or as proceeds of, collateral provided by a Hedge Provider pursuant to a credit support annex), (ix) the proceeds of any cash Capital Contributions
| ANNEX A |
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[Master Indenture]
and (x) any other amounts received by the Issuer, but not including any funds to be applied in connection with an Optional Redemption and other amounts required to be paid over to any third party pursuant to any Relative Document.
“Collections Account” has the meaning given to such term in Section 3.01(a).
“Company Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Comparable Lease” means, with respect to Qualifying Replacement Railcars, a Lease that (a) will generate at least the same amount of average monthly lease revenue as the Reference Sold Railcars of a similar railcar type or, if there are no such Reference Sold Railcars of a similar railcar type, Portfolio Railcars of a similar railcar type or, if there are no such Portfolio Railcars of a similar type, such railcars of a similar type as the Administrator may reasonably determine, and (b) has a remaining Lease term at least equal to two-thirds of the average remaining Lease term of the Reference Sold Railcars.
“Concentration Limits” means, collectively the Mexico Concentration Restriction, the Customer Concentration Limitation and the Industry Concentration Limitation.
“Control Party” means in respect of any Series of Notes, unless otherwise provided in the Series Supplement related to such Series, Noteholders representing more than fifty percent (50%) of the then aggregate Outstanding Principal Balance of (a) initially, all Outstanding Class A Equipment Notes of such Series, (b) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Class A Equipment Notes of such Series, all Outstanding Class B Equipment Notes of such Series, (c) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Class A Equipment Notes and Class B Equipment Notes of such Series, all Outstanding Class C Equipment Notes of such Series and (d) on and after the occurrence of the payment in full of all Outstanding Obligations in respect of the Equipment Notes of such Series, all Outstanding Subordinated Notes.
“Convey” or “Conveyance” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Corporate Obligations” has the meaning given to such term in Section 12.02(a).
“Corporate Trust Office” means, with respect to the Indenture Trustee, the office of such trustee in the city at which at any particular time this Master Indenture shall be principally administered and, with respect to the Indenture Trustee on the Initial Closing Date, shall be, for the purpose of exchanging Notes, U.S. Bank Trust Company, National Association, 111 Fillmore Ave. East, St. Paul, Minnesota 55107, Attention: Bondholder Services, and for all other purposes shall be U.S. Bank Trust Company, National Association, 425 Walnut Street, 6th Floor, CN-OH-W6CT, Cincinnati, Ohio 45202, Attention: Global Structured Finance – GBXL 2022-1, Facsimile No: (513) 632-5511, or at any other time at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders and the Issuer.
“Credit Bankrupt” means a Person which (i) is subject to any bankruptcy or insolvency proceeding, (ii) is not paying its debts generally as they become due or (iii) has had a custodian
| ANNEX A |
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[Master Indenture]
(as defined in the Bankruptcy Code) take charge of all or substantially all of the property of such Person.
“Current LTV Ratio” has the meaning given to such term in paragraph 4(e) of the Granting Clause of this Master Indenture.
“Customer Concentration Limitation” means, except in the case of any Permitted Excess Concentration, that, (a) as of any date of determination, the Adjusted Value of Portfolio Railcars leased to an individual Lessee that has a rating of at least “BBB-” or “Baa3” from S&P or Moody’s, respectively (or leased to an Affiliate of such a Person), in the aggregate, does not exceed on such date seventeen and one-half percent (17.5%) of the aggregate Adjusted Value of the Portfolio Railcars on such date, and (b) except as contemplated in clause (a) above, as of any date of determination, the Adjusted Value of Portfolio Railcars leased to an individual Lessee (or leased to an Affiliate thereof), regardless of rating, in the aggregate, does not exceed on such date fifteen percent (15%) of the aggregate Adjusted Value of the Portfolio Railcars on such date. The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Customer Concentration Limitation (i.e., to increase either or both of the percentages to be greater than the applicable percentage or percentages that are then in effect pursuant to this definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Debt Service Coverage Ratio” means, with respect to any Payment Date, commencing on the seventh Payment Date after the Initial Closing Date, the ratio of (i) the sum of the Collections (excluding (a) net payments owed to the Issuer for the payment of any Hedge Termination Value and (b) any Capital Contributions other than (A) any Capital Contributions made to fund Required Modifications expenses for such Collection Periods and (B) any Capital Contributions made to fund Cure Amounts during such Collection Periods) deposited into the Collections Account for each of the six consecutive Collection Periods ending on the last day of the calendar month immediately preceding such Payment Date, minus the sum of (x) the amount actually deposited into the Expense Account during such six preceding Collection Periods, (y) the Service Provider Fees for each of such six preceding Collection Periods and (z) the amount actually deposited into the Liquidity Reserve Account during such six preceding Collection Periods, to (ii) the sum of (xx) the aggregate amount of principal payments with respect to the six consecutive Payment Dates ending on and including such Payment Date required in order to reduce the aggregate Outstanding Principal Balance of the Equipment Notes of each Series on such Payment Date to an amount equal to the Scheduled Targeted Principal Balance for such Series for such Payment Date, plus (yy) the aggregate amount of interest on the Outstanding Equipment Notes of each Series (excluding Additional Interest) payable on the six consecutive Payment Dates ending on and including such Payment Date, plus (or minus) (zz) the net payments owed by the Issuer (or owed to the Issuer) under any Hedge Agreements (other than for the payment of any Hedge
| ANNEX A |
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[Master Indenture]
Termination Value) in respect of the six consecutive Payment Dates ending on and including such Payment Date.
“Default” means a condition, event or act which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Default Notice” has the meaning given to such term in Section 4.02(a).
“Definitive Note” means a note issued in definitive form pursuant to the terms and conditions of this Master Indenture and the related Series Supplement, the form of which shall be substantially in the form of the applicable Form of Note for such Note, with the legends required by Section 2.02 for a Definitive Note inscribed thereon and with such changes therein and such additional information as may be specified in the Series Supplement pursuant to which such Note is issued.
“Delivery Date” means each date on which any Railcar, together with any Lease related thereto and all Related Assets (as defined, if applicable, in the applicable Asset Transfer Agreement), is transferred to the Issuer by the applicable Seller thereof and includes, without limitation, the Initial Closing Date and each other date (in respect of Additional Railcars) on which any such transfer occurs.
“Delivery Schedule” has the meaning given to such term, if applicable, in an Asset Transfer Agreement.
“Depreciation Change” has the meaning given to such term in the definition of Adjusted Value.
“Designated Severability Clause” means, with respect to a Mixed Rider, language to the effect that the Mixed Rider shall constitute one or more separate and severable leases, with each such lease being comprised of railcars owned by a single person or entity, and each such lease shall incorporate the terms of the related master lease agreement and shall be separate and severable from each other lease made pursuant to such rider and from any other railcars or riders relating to such master lease agreement.
“Determination Date” means, with respect to a Payment Date, the last day of the calendar month prior to the month in which such Payment Date occurs.
“Direct Participants” means securities brokers and dealers, banks, trust companies and clearing corporations, and may include certain other organizations which access the DTC system directly.
“Direction” has the meaning given to such term in Section 1.04(c).
“Dollars” or “$” means the lawful currency of the United States of America.
“DTC” means The Depository Trust Company, a limited purpose trust company organized under the New York Banking Law, its nominees and their successors.
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[Master Indenture]
“DTC Participants” means Euroclear, Clearstream or other Persons who have accounts with DTC.
“Early Amortization Event” means, as of any Payment Date, the existence of any one or more of the following events or conditions, unless it has been cured (or unless it has been waived by the Indenture Trustee at the Direction of a Requisite Majority):
(a) the number of Portfolio Railcars that are subject to a Lease is less than 80% of the total number of Portfolio Railcars; or
(b) as of any Payment Date on or after the seventh (7th) Payment Date following the Closing Date, the Debt Service Coverage Ratio is less than 1.05; for the avoidance of doubt, an Early Amortization Event pursuant to this clause (c) shall terminate on the next upcoming Payment Date as of which the Debt Service Coverage Ratio at least equals 1.05, provided, that the Issuer shall have the right (the “Cure Right”), at any time until the date that is thirty (30) days after such Payment Date, on no more than two occasions in any twelve (12) consecutive calendar months (including and preceding the month in which such Payment Date occurs)to receive Capital Contributions in an amount no greater than that needed to cause the Debt Service Coverage Ratio to be at least equal to 1.05 but no greater than 1.075 immediately after giving effect to such contribution by adding such Capital Contribution (the “Cure Amount”) to the numerator in the calculation of the Debt Service Coverage Ratio. For the avoidance of doubt, no Early Amortization Event will occur or be deemed to have occurred, if after giving effect to the contribution of the Cure Amount as set forth above, the Debt Service Coverage Ratio is at least equal to 1.05).
“Eligibility Requirements” has the meaning given to such term in Section 2.03(b).
“Eligible Hedge Provider” means a bank or other entity that satisfies the standards of the Rating Agency rating the applicable Floating Rate Notes in order to maintain the then-current rating of such Floating Rate Notes.
“Eligible Institution” means (a) any depository institution or trust company, with a capital and surplus of not less than $250,000,000, whose long-term unsecured debt rating from each Rating Agency of not less than A (or the equivalent) and whose deposits are insured by the Federal Deposit Insurance Corporation or (b) a federally or state chartered depository institution, with a capital and surplus of not less than $250,000,000, subject to regulations regarding fiduciary funds on deposit substantially similar to 12 C.F.R. § 9.10(b), that in each case has a long-term unsecured debt rating of not less than A (or the equivalent) or a short-term unsecured debt rating of A-1 (or the equivalent) from each Rating Agency.
“Eligible Railcar” means any Railcar that, on its applicable Delivery Date, is ready and available to operate as of such date (or will be upon routine maintenance) in commercial service and otherwise perform the functions for which it was designed.
“Encumbrance” means any mortgage, pledge, lien, encumbrance, charge or security interest, including, without limitation, any conditional sale, any sale without recourse against the
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[Master Indenture]
sellers, or any agreement to give any security interest over or with respect to any assets of any applicable Person.
“Equipment Note” means any one of the promissory notes (other than Subordinated Notes) executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Series Supplement.
“Equipment Note Purchase Agreement”, with respect to a Series of Equipment Notes, has the meaning given to such term in the related Series Supplement.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default” means the existence of any of the events or conditions described in Section 4.01.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Date” means the date on which interests in each Regulation S Temporary Book-Entry Note will be exchangeable for interests in an Unrestricted Book-Entry Note, which shall be the later of (i) the fortieth (40th) day after the later of (a) the applicable Closing Date and (b) the completion of the distribution of the related Series of Notes and (ii) the date on which the requisite certifications are due to and provided to the Indenture Trustee.
“Excluded Expenses” means (a) salary, bonuses, company cars and benefits of the Servicer’s employees, (b) office, office equipment and office rental expenses of the Servicer, (c) telecommunications expenses of the Servicer, (d) taxes on the income, receipts, profits, gains, net worth or franchise of the Servicer and payroll, employment and social security taxes for employees of the Servicer, (e) any and all financing costs (including interest and fees) relating to any indebtedness of the Servicer, and (f) all other overhead expenses of the Servicer.
“Existing Lease” means a Lease in effect on a Closing Date in respect of any Railcar being conveyed to the Issuer on such date, together with any renewals thereof.
“Expense Account” has the meaning given to such term in Section 3.01(a).
“FATCA” means Sections 1471 through 1474 of the Code as of the date hereof (or any amended or successor versions of Sections 1471 through 1474 of the Code that is substantively comparable), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements (including any foreign legislation, rules, regulations, guidance notes or similar guidance adopted pursuant to or implementing such agreements) entered into in connection with such Sections.
“Final Maturity Date” means, with respect to a Series (or Class thereof) of Notes, the date identified as such in the related Series Supplement.
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[Master Indenture]
“Final Principal Payment Shortfall” has the meaning given to such term in Section 3.10(d)(v).
“Fixed Rate Note” means any Note having a Stated Rate that is a fixed percentage.
“Floating Rate Note” means any Note having a Stated Rate that varies with a specified index, as specified in the Series Supplement under which such Floating Rate Note is issued.
“Flow of Funds” means the provisions of the Master Indenture applicable to the allocation and distribution of the Available Collections Amount set forth in Sections 3.11(a), (b) or (c), as applicable.
“Form of Lease” means the form of master railcar lease agreement attached as Exhibit D-to the Master Indenture.
“Form of Note” means, with respect to a Note, the form of such Note attached as an exhibit to the Series Supplement under which such Note is issued.
“FRA” means the Federal Railroad Administration or any successor thereto.
“Full Service Lease” means any Lease pursuant to which the Lessor thereunder is responsible for maintenance and repair of the Portfolio Railcars that are subject thereto.
“Future Lease” means, in respect of any Railcar, a Lease of such Railcar entered into by the Issuer or the Canadian Subsidiary at any time after the Delivery Date for such Railcar and that is not an Existing Lease.
“GBX Leasing” means GBX Leasing, LLC, a Delaware limited liability company.
“GBXL I” means GBXL I, LLC, a Delaware limited liability company.
“General Intangibles” (a) means all “general intangibles” as defined in Article 9 of the UCC and (b) includes, without limitation, all Assigned Agreements, all interest rate or currency protection or hedging arrangements, all tax refunds, claims for tax refunds and tax credits, all licenses, permits, approvals, consents, variances, certifications, concessions and authorizations, all Intellectual Property, all Payment Intangibles (in each case, regardless of whether characterized as general intangibles under the UCC), limited liability company or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee and the properties and rights associated therewith), franchises, and any letter of credit, guarantee, claim, security interest or other security held by or granted to the Issuer to secure payment by an account debtor of any of the Accounts Receivable including the Issuer’s rights in all security agreements, leases and other contracts securing or otherwise relating to any Account Receivable and all warranties, rights and claims against third parties including carriers and shippers and otherwise.
“GLC Payment Processing Account” means the “Payment Processing Account” described in the GLC Payment Processing Agreement.
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[Master Indenture]
“GLC Payment Processing Agreement” means the Payment Processing Agreement, dated as of July 16, 2016, by and among the various lease owners party thereto from time to time, Greenbrier Leasing Company LLC, GLC Payment Processing Trust, and WTC (and as the same may be amended, supplemented, restated, amended and restated or modified from time to time), or any replacement payment processing agreement with the Payment Processing Agent or a replacement Payment Processing Agent.
“GMS” means Greenbrier Management Services, LLC, a Delaware limited liability company.
“GMS Fleet” means all Railcars managed by GMS as of any date of determination but excluding the Portfolio Railcars.
“Greenbrier” means The Greenbrier Companies, Inc., an Oregon corporation.
“Greenbrier Marks” means the Marks owned or controlled by Greenbrier or an Affiliate of Greenbrier.
“Governmental Authority” shall mean any government, legislative body, regulatory authority, court, administrative agency or commission or other governmental agency or instrumentality (or any officer or representative thereof), domestic, foreign or international, of competent jurisdiction, including the European Union.
“Head Lease” means a head lease between the Issuer, as lessor, and the Canadian Subsidiary, as lessee, with respect to any Railcar.
“Hedge Agreement” means an interest rate derivative agreement (including, without limitation, a cap, collar, floor, swap or other derivative transaction) between the Issuer and the Hedge Provider named therein.
“Hedge Collateral” has the meaning given to such term in Section 3.16(g).
“Hedge Collateral Account” has the meaning given to such term in Section 3.16(g).
“Hedge Partial Termination Value” means, with respect to a partial termination of a Hedge Agreement, a termination payment due either from the Issuer to the applicable Hedge Provider or from the applicable Hedge Provider to the Issuer in relation to such termination pursuant to the terms of such Hedge Agreement. Such termination payment may be subject to netting or offsetting claims, and the final amount so owed will be the Hedge Partial Termination Value.
“Hedge Provider” means a Person that is a party to a Hedge Agreement with the Issuer.
“Hedge Termination Value” means, with respect to a Hedge Agreement, a termination payment due either from the Issuer to the applicable Hedge Provider or from the applicable Hedge Provider to the Issuer in relation to such termination pursuant to the terms of such Hedge
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[Master Indenture]
Agreement. Such termination payment may be subject to offsetting claims, and the final amount so owed by the Issuer or to the Issuer (if any) will be the Hedge Termination Value.
“Hedging Requirement” has the meaning given to such term in Section 3.16(b).
“Indebtedness” means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of purchasing such property or service or taking delivery and title thereto or the completion of such services, and payment deferrals arranged primarily as a method of raising funds to acquire such property or service, (v) all obligations of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed) that is required to be classified and accounted for as a capital lease obligation under U.S. GAAP, (vi) all Indebtedness (as defined in clauses (i) through (v) of this paragraph) of other Persons secured by a lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, (vii) all indebtedness of such Person under Liquidity Facilities (if any), (viii) net payments due and payable by such Person under Hedge Agreements, and (ix) all Indebtedness (as defined in clauses (i) through (viii) of this paragraph) of other Persons guaranteed by such Person.
“Indemnified Expenses” has the meaning given to such term in Section 5 of the Administrative Services Agreement.
“Indenture Account” means each of the Collections Account, the Expense Account, the Optional Reinvestment Account, each Series Account, any Class Account, the Liquidity Reserve Account, any Liquidity Facility Collateral Account, any Redemption/Defeasance Account, any Prefunding Account and any sub-accounts and ledger and sub-ledger accounts maintained with respect to any of the foregoing in accordance with this Master Indenture (as well as any other account, if any, established with the Indenture Trustee in accordance with Section 3.01(a) after the Initial Closing Date).
“Indenture Investment” means any obligation issued or guaranteed by the United States of America or any of its agencies for the payment of which the full faith and credit of the United States of America is pledged and with a final maturity on or before the date which is the earlier of (a) ninety days from the date of purchase thereof and (b) the first Payment Date occurring after the date of purchase thereof.
“Indenture Supplement” means a supplement to this Master Indenture, other than a Series Supplement.
“Indenture Trustee” has the meaning given to such term in the preamble hereof, and any successor indenture trustee appointed in accordance with the terms hereof.
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[Master Indenture]
“Indenture Trustee Fees” means the compensation and expenses (including attorney’s fees and expenses and indemnification payments) payable to the Indenture Trustee for its services under this Master Indenture and the other Relative Documents to which it is a party (if any).
“Industry Concentration Limitation” means that, as of any date of determination, the Adjusted Value of Portfolio Railcars leased to Lessees for primary use in the industries identified below, are in excess of the percentages set forth below for each such industry (expressed as a percentage of the aggregate Adjusted Value of all Portfolio Railcars on such date):
Industry | Concentration Limit (% of Adjusted Value of Portfolio Railcars) |
Agricultural Products (excl. Grain) | [______]% |
Automotive | [______]% |
Catalyst Products | [______]% |
Cement | [______]% |
Chemicals | [______]% |
Coal | [______]% |
Containers | [______]% |
Crude Oil | [______]% |
Ethanol/Biofuels | [______]% |
Frac Sand | [______]% |
Grain | [______]% |
LPG | [______]% |
Mining and Minerals | [______]% |
Non Hazardous Commodities | [______]% |
Paper, Lumber | [______]% |
Plastics/Plastic Pellets | [______]% |
Refined Products | [______]% |
Steel/Iron | [______]% |
The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Industry Concentration Limitation (i.e., to increase either or both of the percentages to be greater than the applicable percentage or percentages that are then in effect pursuant to this definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
“Inflation Factor” means, with respect to any calendar year, the quotient (expressed as a decimal) obtained by dividing (i) the PPI published in respect of the most recently ended calendar year (the “New Year”), by (ii) the PPI published in respect of the calendar year immediately preceding the New Year, and subtracting 1.00 from the resulting quotient. “PPI” for purposes hereof, means, with respect to any calendar year or any period during any calendar year, the “Producer Price Index” applicable to the capital equipment sector as published by the Bureau of Labor Statistics for the United States Department of Labor. If the PPI shall be converted to a
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[Master Indenture]
different standard reference base or otherwise revised after the date hereof, PPI shall thereafter be calculated with use of such new or revised statistical measure published by the Bureau of Labor Statistics or, if not so published, as may be published by any other reputable publisher of such price index reasonably selected by the Administrator. The Inflation Factor may be a negative number.
“Initial Appraised Value” means, with respect to a Railcar, the appraised value of such Railcar as determined in the Appraisal delivered in connection with the Conveyance thereof to the Issuer; provided that, with respect to the Initial Notes, the Initial Appraised Value is the arithmetic mean of the two Appraisals of the Portfolio Railcars (as of the Initial Closing Date), obtained from RailSolutions, Inc. and Railroad Appraisal Associates prior to the Initial Closing Date.
“Initial Closing Date” means February 9, 2022.
“Initial Notes” means the Notes designated “Series 2022-1” issued on the Initial Closing Date.
“Initial Purchaser” with respect to a Series of Equipment Notes, has the meaning given to such term in the related Series Supplement.
“Insolvency Appointee” has the meaning given to such term in Section 5.04(h).
“Inspection Representative” has the meaning given to such term in Section 5.04(y)(i).
“Inspections” has the meaning given to such term in Section 5.04(y)(i).
“Institutional Accredited Investor” means a Person that is an “accredited investor” as that term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D.
“Instruments” means all “instruments” as defined in Article 9 of the UCC.
“Insurance Agreement” means the Insurance Agreement, dated as of the Initial Closing Date, among the Insurance Manager, the Issuer and the Canadian Subsidiary, or any replacement insurance agreement with a replacement Insurance Manager.
“Insurance Manager” means GMS, in its capacity as insurance manager under the Insurance Agreement, including its successors in interest and permitted assigns, until another Person shall have become the insurance manager under such agreement, after which “Insurance Manager” shall mean such other Person.
“Insurance Manager Default” has the meaning given to such term in Section 6.2 of the Insurance Agreement.
“Intellectual Property” means all past, present and future: trade secrets and other proprietary information; trademarks, service marks, business names, Internet domain names, designs, logos, trade dress, slogans, indicia and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations or applications for registrations which
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[Master Indenture]
have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including copyrights for computer programs and software) and copyright registrations or applications for registrations which have heretofore been or may hereafter be applied for or issued throughout the world and all tangible property embodying the copyrights; unpatented inventions (whether or not patentable); patent applications and patents; industrial designs, industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, source codes, object codes and other physical manifestations, embodiments or incorporations of any of the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; and all common law and other rights throughout the world in and to any or all of the foregoing.
“Interchange Rules” means the interchange rules or supplements thereto of the AAR, as the same may be in effect from time to time.
“Interest Accrual Period” means, except as may be otherwise provided in the related Series Supplement for a Series of Notes: (a) with respect to Fixed Rate Notes, the period beginning on the 20th day of a calendar month and ending on (but excluding) the 20th day of the next calendar month, and (b) with respect to Floating Rate Notes, the period beginning on each Payment Date and ending on (but excluding) the next succeeding Payment Date, except that the initial Interest Accrual Period for a Series (x) with respect to Fixed Rate Notes, shall begin on the Closing Date for such Series and end on (but exclude) the 20th day of the next calendar month, and (y) with respect to Floating Rate Notes, shall begin on the Closing Date for such Series and end on (but exclude) the first Payment Date occurring after such Closing Date.
“Investment Letter” means a letter substantially in the form of Exhibit B attached hereto.
“Investment Property” means all “investment property” as defined in Article 9 of the UCC.
“Involuntary Railcar Disposition” has the meaning given to such term in Section 5.03(a)(ii).
“Issuance Expenses” means the aggregate amount of all subscription discounts, brokerage commissions, placement fees, resale fees, structuring fees, out of pocket transaction expenses and other similar fees, commissions and expenses relating to the issuance of a Series of the Notes.
“Issuer” has the meaning given to such term in the preamble.
“Issuer Documents” means this Master Indenture, each Series Supplement, the Servicing Agreement, the GLC Payment Processing Agreement, the Administrative Services Agreement, the Insurance Agreement, the Asset Transfer Agreements, any Bill of Sale, any Assignment and Assumption, the Hedge Agreements, each Head Lease and the Liquidity Facility Documents (if any).
“Issuer Expense” means, for any Payment Date, any of the following costs directly incurred by the Issuer, the Canadian Subsidiary or incurred by any Service Provider in its
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[Master Indenture]
performance of its obligations under the applicable Service Provider Agreement that are, in each case, reasonable in amount and are fairly attributable to the Issuer or the Canadian Subsidiary and their permitted activities during the related Collection Period: (i) accounting and audit expenses, and tax preparation, filing and audit expenses; (ii) premiums for liability, casualty, fidelity, directors and officers and other insurance; (iii) directors’ fees and expenses, including fees and expenses of the special member of the Issuer or the Canadian Subsidiary; (iv) other professional fees; (v) taxes (including personal or other property taxes and all sales, value added, use and similar taxes) other than taxes that are incurred by such Service Provider in respect of its own income or assets, and other than taxes that constitute Ordinary Course Expenses; (vi) taxes imposed in respect of any and all issuances of equity interests, stock exchange listing fees, registrar and transfer expenses and trustee’s fees with respect to any outstanding securities of the Issuer; and (vii) surveillance fees assessed by the Rating Agencies, including any such fees incurred by the Issuer in connection with its compliance with its covenant set forth in Section 5.02(o).
“Issuer Group Member” means any of the Issuer, the Canadian Subsidiary, Greenbrier, GBX Leasing or any Affiliate of any of them.
“KBRA” means Kroll Bond Rating Agency, LLC.
“Later Sold Note” has the meaning given to such term in Section 2.19.
“Law” means (a) any constitution, treaty, statute, law, regulation, order, rule or directive of any Governmental Authority, and (b) any judicial or administrative interpretation or application of, or decision under, any of the foregoing.
“Lease” means, with respect to a Railcar, a lease, car contract or other agreement granting permission for the use of such Railcar, constituting an operating lease thereon.
“Lease Payments” means all lease rental payments and other amounts payable by or on behalf of a Lessee under a Lease or on behalf of the Canadian Subsidiary under a Head Lease related to a Portfolio Railcar, including payments credited due to application of security deposits and amounts recovered under other supporting obligations, if any, in respect of such Lease or Head Lease, as the case may be.
“Lessee” means each Person who is the lessee under a Lease of a Railcar.
“Lessor” means, with respect to any Lease, the lessor under such Lease (being, in respect of Leases of Portfolio Railcars, the Issuer or the Canadian Subsidiary, as the case may be, as assignee lessor under the related Assignment and Assumption).
“LIBOR”, with respect to a Series, has the meaning given to such term in the related Series Supplement, if applicable.
“Liquidity Facility” has the meaning given to such term in Section 3.15. A Liquidity Facility may be in the form of a letter of credit, liquidity loan agreement, revolving credit agreement, collateralized or uncollateralized guarantee, financial guaranty policy, guaranteed investment contract, total return swap, or some other form of standby liquidity.
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[Master Indenture]
“Liquidity Facility Available Amount” with respect to a Liquidity Facility, means the amount available to be drawn under such Liquidity Facility.
“Liquidity Facility Collateral Account” has the meaning given to such term in Section 3.01(a).
“Liquidity Facility Documents” has the meaning given to such term in Section 3.15.
“Liquidity Facility Provider” means the issuer or provider of a Liquidity Facility.
“Liquidity Reserve Account” has the meaning given to such term in Section 3.01(a).
“Liquidity Reserve Target Amount” means, (A) as of the Initial Closing Date, an amount equal to $[______] and (B) thereafter, on each Payment Date, an amount equal to the product of (x) nine times (y) the sum of (i) the Stated Interest Amount due on all Outstanding Class A Equipment Notes and Class B Equipment Notes on such Payment Date (for purposes of this calculation, interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months), plus (or minus) (ii) the net payments owed by the Issuer (or owed to the Issuer) under any Hedge Agreements (other than for the payment of any Hedge Termination Value or Hedge Partial Termination Value) in respect of the Interest Accrual Period ending on such Payment Date (for purposes of this calculation, such payments shall be calculated on the basis of a 360-day year consisting of twelve 30-day months for both amounts payable and receivable).
“LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of the Issuer, dated on or about the Initial Closing Date.
“Mark” means the identification mark of a railcar registered with the AAR, consisting of letters registered in the name of the owner of the railcar mark and the car number.
“Master Indenture” has the meaning given to such term in the preamble hereto.
“Maximum Hedging Amount” has the meaning given to such term in Section 3.16(b).
“Member” means the sole equity member of the Issuer, i.e. GBX Leasing, or any successor or assignee thereto, in such capacity.
“Merger Transaction” has the meaning given to such term in Section 5.02(g).
“Mexican Lessee” is defined in the definition of Permitted Lessee.
“Mexico Concentration Restriction” means the condition described in the proviso to the definition of Permitted Lessee. The Issuer will have the right at any time to obtain Rating Agency Confirmation in respect of a proposed change to a more lenient Mexico Concentration Restriction (i.e., to increase the percentage set forth in the definition of Permitted Lessee to be greater than the applicable percentage that is then in effect pursuant to such definition) and, if Rating Agency Confirmation in respect of such proposed change is obtained, the more lenient concentration restriction will then apply.
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[Master Indenture]
“Minimum Hedging Amount” has the meaning given to such term in Section 3.16(b).
“Mixed Rider” means a Rider that covers not only Railcars owned by the Issuer but also railcars owned by one or more other owners.
“Modification Agreement” means any agreement between the Issuer (or the Servicer acting on its behalf) and a Supplier for the purchase and/or installation of a Required Modification or an Optional Modification.
“Money” means “money” as defined in the UCC.
“Monthly Report” has the meaning given to such term in Section 2.13(a).
“Moody’s” means Moody’s Investors Service, Inc. or, if such corporation or its successor shall for any reason no longer perform the functions of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally recognized rating agency designated by the Issuer.
“National Reload Pool” means the autorack pool operated by [______] for the shared use of bi-level and tri-level autorack Railcars that have been supplied for such pool by participating Class 1 railroads.
“Net Disposition Proceeds” means, with respect to any Railcar Disposition, (a) in respect of a Railcar Disposition consisting of a sale, the aggregate amount of cash received by or on behalf of the seller in connection with such transaction after deducting therefrom (without duplication) (i) reasonable and customary brokerage commissions and other similar fees and commissions, and (ii) the amount of taxes payable in connection with or as a result of such transaction, in each case to the extent, but only to the extent, that amounts so deducted are, at the time of receipt of such cash, actually paid to a Person that is not an Affiliate of the seller and are properly attributable to such transaction or to the asset that is the subject thereof, and (b) in respect of a Railcar Disposition that is not a sale, payments received in respect of any applicable casualty or condemnation, including insurance proceeds, condemnation awards and payments received from Lessees or other third parties.
“Net Leases” means Leases pursuant to which a Lessee thereunder is responsible for maintenance and repair of the Portfolio Railcars leased thereunder.
“Net Proceeds” means, with respect to the issuance of the Notes, the aggregate amount of cash received by the Issuer in connection with such issuance after deducting therefrom (without duplication) all Issuance Expenses; provided that such amount shall not be less than zero.
“Net Stated Interest Shortfall” has the meaning given to such term in Section 3.04(c).
“Non-Severable Mixed Rider” means a Mixed Rider that does not contain a Designated Severability Clause.
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
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[Master Indenture]
“Noteholder” means (i) with respect to any Book-Entry Note, the beneficial owner of such Note and (ii) with respect to any other Note, any Person in whose name a Note is registered from time to time in the Register for such Notes.
“Noteholder Tax Identification Information” means properly completed and signed tax certifications (generally, in the case of U.S. federal income tax, IRS Form W-9 (or applicable successor form) in the case of a person that is a “United States Person” within the meaning of Section 7701(a)(30) of the Code or the appropriate IRS Form W-8 (or applicable successor form) in the case of a person that is not a “United States Person” within the meaning of Section 7701(a)(30) of the Code) and other information requested from time to time by the Issuer, the Indenture Trustee or any Paying Agent sufficient (i) to determine the applicability of, or to determine the amount of, U.S. withholding tax under the Code (including back-up withholding and withholding imposed pursuant to FATCA) or other Applicable Law and (ii) for the Issuer, the Indenture Trustee and each Paying Agent to satisfy their information reporting obligations under the Code (including under FATCA) or other Applicable Law.
“Note Registrar” has the meaning given to such term in Section 2.03(a).
“Notes” means the Equipment Notes and the Subordinated Notes.
“Notices” has the meaning given to such term in Section 13.04.
“NRSRO” means any nationally recognized statistical rating organization.
“Obligor” means the Issuer or the Canadian Subsidiary, as the context may require and, collectively, the “Obligors”.
“Officer’s Certificate” means a certificate signed (i) in the case of a corporation, by the President, any Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of such corporation, (ii) in the case of a partnership, by the Chairman of the Board, the President or any Vice President, the Treasurer or an Assistant Treasurer of a corporate general partner or limited liability company general partner (to the extent such limited liability company has officers), (iii) in the case of a commercial bank or trust company, by the Chairman or Vice Chairman of the Executive Committee or the Treasurer, any Trust Officer, any Vice President, any Executive or Senior or Second or Assistant Vice President, or any other officer or assistant officer customarily performing the functions similar to those performed by the persons who at the time shall be such officers, or to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and (iv) in the case of a limited liability company, any manager or member (other than a special member) thereof, and any President, Managing Director or Vice President of (A) such limited liability company, (B) such manager or member, or (C) a manager of such manager or member.
“Operating Expenses” means (i) Issuer Expenses, (ii) Ordinary Course Expenses and (iii) the costs of Required Modifications.
“Operative Agreements” means the Asset Transfer Agreements, Bills of Sale, Assignment and Assumptions, each Head Lease, this Master Indenture, each Series Supplement,
| ANNEX A |
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[Master Indenture]
the Canadian Lease Security Agreement, the Notes, each Officer’s Certificate of the Issuer, the Servicer, any Seller, the Administrator or GBX Leasing in any other capacity delivered pursuant to any Operative Agreement, the Servicing Agreement, the Administrative Services Agreement, the Insurance Agreement, the Service Provider Agreements, the GLC Payment Processing Agreement, the Hedge Agreements and the Liquidity Facility Documents (if any).
“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of the Servicer or the Administrator or counsel to the Issuer, that meets the requirements of Section 1.03.
“Optional Modification” means a modification or improvement of a Railcar, the cost of which is capitalized in accordance with U.S. GAAP, that (a) is not a Required Modification and (b) complies with the criteria set forth in Section 5.04(z)(ii).
“Optional Redemption” means, with respect to any Series of Notes or any Class within a Series of Notes, a voluntary prepayment by the Issuer of all or a portion of the Outstanding Principal Balance of such Series or Class in accordance with the terms of this Master Indenture and the applicable Series Supplement; and, with respect to all Outstanding Notes, a voluntary prepayment by the Issuer of the Outstanding Principal Balance of the Notes in accordance with the terms of this Master Indenture and each applicable Series Supplement.
“Optional Reinvestment Account” has the meaning given to such term in Section 3.01(a).
“Ordinary Course Expenses” means, with respect to any Payment Date, all of the following expenses and costs, incurred by, or on behalf of, the Issuer or the Canadian Subsidiary (including by the Servicer on behalf of the Issuer or the Canadian Subsidiary) in connection with the ownership, use, leasing and/or operation of the Portfolio Railcars during the related Collection Period (and without duplication): (i) costs for routine maintenance and repairs (but not Optional Modifications) needed to return a Railcar to serviceable condition for use in interchange; (ii) the cost of repositioning a Railcar in connection with the origination or termination of a Lease; (iii) legal fees and court costs incurred in connection with enforcing rights under a Lease of a Railcar and/or repossessing such Railcar (but excluding legal fees incurred by the Servicer in the negotiation and documentation of Future Leases or of amendments or renewals of Leases and Future Leases); (iv) the allocable cost of obtaining and maintaining contingent and off-lease insurance with respect to the Portfolio Railcars; (v) taxes, levies, duties, charges, assessments, fees, penalties, deductions or withholdings assessed, charged or imposed upon or against the use and operation of the Portfolio Railcars; (vi) the cost of storing an off-lease Railcar; (vii) expenses and costs (including legal fees) of pursuing claims against manufacturers or sellers of a Railcar; (viii) non-recoverable sales and value-added taxes with respect to a Railcar; (ix) governmental filing fees necessary to perfect, or continue the perfection of, the security interest of the Indenture Trustee in a Railcar and/or a Lease; (x) the costs of Optional Modifications (but not in excess, in any calendar month, of the result of (A) one hundred thousand dollars ($100,000) multiplied by (B) the number of Outstanding Series on the first day of such calendar month); and (xi) all other expenses and costs, incurred by, or on behalf of, the Issuer (including by the Servicer on behalf of the Issuer) in connection with the ownership, use, leasing and/or operation of the Portfolio Railcars
| ANNEX A |
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[Master Indenture]
during the related Collection Period, other than Issuer Expenses, the costs of Required Modifications, and Excluded Expenses.
“Outstanding” means with respect to the Notes of any Series or any Class thereof at any time, all Notes of such Series or such Class, as the case may be, previously authenticated and delivered by the Indenture Trustee except (i) any such Notes cancelled by, or delivered for cancellation to, the Indenture Trustee; (ii) any such Notes, or portions thereof, for which the payment of principal of and accrued and unpaid interest on which moneys have been deposited in the Series Account for such Series or such Class, as the case may be, or distributed to Noteholders by the Indenture Trustee and any such Notes, or portions thereof, for the payment or redemption of which moneys in the necessary amount have been deposited in the Redemption/Defeasance Account for such Notes; and (iii) any such Notes in exchange or substitution for which other Notes, as the case may be, have been authenticated and delivered, or which have been paid pursuant to the terms of this Master Indenture (unless proof satisfactory to the Indenture Trustee is presented that any of such Notes is held by a Person in whose hands such Note is a legal, valid and binding obligation of the Issuer). Section 1.04(c) sets forth certain limitations on whether a Note held by the Issuer or any other Issuer Group Member will be considered to be Outstanding for purposes of Directions.
“Outstanding Note” means a Note that is Outstanding.
“Outstanding Obligations” means, as of any date of determination, an amount equal to the sum of (i) the Outstanding Principal Balance of, and all accrued and unpaid interest (including without limitation, Additional Interest) payable on the Notes and (ii) all other amounts owing from time to time to Noteholders, or to any other Person under the Operative Agreements.
“Outstanding Principal Balance” means, with respect to any Outstanding Notes the total principal balance of such Outstanding Notes unpaid and outstanding at any time.
“Part” means any and all parts, attachments, accessions, appurtenances, furnishings, components, appliances, accessories, instruments and other equipment installed in, or attached to (or constituting a spare for any such item installed in or attached to) any Railcar.
“Paying Agent” has the meaning given to such term in Section 2.03(a). The term “Paying Agent” includes any additional Paying Agent.
“Payment Date” means the 20th calendar day of each month, commencing on March 21, 2022; provided that if any Payment Date would otherwise fall on a day that is not a Business Day, such Payment Date shall be the first following day which is a Business Day.
“Payment Date Schedule” means the schedule prepared by the Administrator pursuant to Section 3.10(e).
“Payment Intangible” means all “payment intangibles” as defined in Article 9 of the UCC.
| ANNEX A |
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[Master Indenture]
“Payment Processing Agent” means Wilmington Trust Company (or any successor agent) in its capacity as the payment processing agent under the GLC Payment Processing Agreement.
“Permitted Discretionary Sale” has the meaning given to such term in Section 5.03(a)(iii).
“Permitted Encumbrance” means: (i) the ownership interests of the Issuer; (ii) the interest of the Lessee as provided in any Lease; (iii) any Encumbrance for taxes, assessments, levies, fees and other governmental and similar charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings so long as there exists no material risk of sale, forfeiture, loss, or loss of or interference with use or possession of the affected asset, and such contest would not result in the imposition of any criminal liability on the Issuer or any assignee thereof; (iv) in respect of any Railcar, any Encumbrance of a repairer, mechanic, supplier, materialman, laborer and the like arising in the ordinary course of business by operation of law or similar Encumbrance, provided that the proceedings relating to such Encumbrance or the continued existence of such Encumbrance does not give rise to any reasonable likelihood of the sale, forfeiture or other loss of the affected asset, and such contest would not result in the imposition of any criminal liability on the Issuer or any assignee thereof; (v) Encumbrances granted to the Indenture Trustee under and pursuant to this Master Indenture and the Canadian Lease Security Agreement; (vi) any Encumbrances created by or through or arising from debt or liabilities or any act or omission of any Lessee in each case either in contravention of the relevant Lease (whether or not such Lease has been terminated) or without the consent of the relevant Lessor (provided that if the Issuer becomes aware of any such Encumbrance, it shall use commercially reasonable efforts to have any such Encumbrance lifted, removed and otherwise discharged); (vii) salvage rights of insurers under insurance policies covering the affected asset; (viii) any sublease permitted under any Lease; (ix) Encumbrances which are released or extinguished upon the transfer of the related asset to the Issuer by the applicable transferee thereof; (x) Encumbrances on railcars and leases that result from a Rider being a Mixed Rider; and (xi) the interest of the Canadian Subsidiary as provided in any Head Lease.
“Permitted Excess Concentration” means the aggregate Adjusted Value of the Issuer’s Railcars leased to an individual Lessee exceeds a percentage limitation specified in the definition of Customer Concentration Limitation as a result of the merger or consolidation of one or more Lessees. A Permitted Excess Concentration shall not be a violation of the Customer Concentration Limitation or the Concentration Limits generally; however, no additional Railcars may be leased to such Lessee (not counting then-currently leased Railcars that are re-leased to the then-current Lessee), and additional Railcars leased to such Lessee may not be purchased, by the Issuer unless, upon such lease or purchase, the Adjusted Value of the Issuer’s Railcars leased to such individual Lessee will meet the applicable Customer Concentration Limitation.
“Permitted Holder” has the meaning given to such term in Section 5.02(i)(A).
“Permitted Investments” means one or more of the following obligations which (i) are acquired at a purchase price of not greater than par, (ii) have a fixed principal amount due at maturity, if applicable, and (iii) unless full payment of principal is paid in cash upon the exercise of the option, do not include any embedded options (i.e., not callable, putable or convertible): (a)
| ANNEX A |
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[Master Indenture]
marketable direct obligations issued by, or fully and unconditionally guaranteed by, the United States Government or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition, (b) certificates of deposit, time deposits, demand deposits, eurocurrency time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any United States commercial bank having a long-term unsecured debt rating of at least “AA-” by S&P and “A1” by Moody’s or equivalent ratings by another nationally recognized credit rating agency in substitution of Moody’s if Moody’s is not in the business of rating long-term senior unsecured debt of commercial banks, (c) commercial paper of an issuer rated at the time of acquisition at least A-1+ by S&P and P1 by Moody’s or, in substitution of Moody’s if Moody’s ceases publishing ratings of commercial paper issuers generally, carrying an equivalent rating by an internationally recognized rating agency, and maturing within one year from the date of acquisition, (d) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States Government, (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at the time of acquisition at least A-l+ by S&P and P1 by Moody’s, or in substitution of Moody’s if Moody’s ceases publishing ratings of such a state, commonwealth, territory, political subdivision, taxing authority or foreign government, carrying an equivalent rating by an internationally recognized rating agency, (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition or (g) shares of money market mutual or similar funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 thereunder and that, at the time of such investment, are rated “Aaa” by Moody’s and “AAA” by S&P or invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. The ratings by S&P described in this definition must be an unqualified rating (i.e., one with no qualifying suffix), with the exception of ratings with regulatory indicators and unsolicited ratings.
“Permitted Lease” means (a) each Existing Lease (including any renewal or extension thereof to the extent such renewal or extension complies with clauses (i), (iii), (iv) and (v) below) and each Head Lease and (b) any agreement (other than an Existing Lease) constituting a Lease that meets all of the following requirements:
(i) the Lessee thereunder is a Permitted Lessee;
(ii) if such agreement permits the Lessee thereunder to sublease any of the Portfolio Railcars subject to such Lease, then such Lease shall require that any such sublease be conditioned on either (A) the Lessee’s obtaining the Lessor’s prior consent to such sublease, which consent may be subject to the requirement that it not be unreasonably conditioned, delayed or withheld, or (B) the Lease providing that no such sublease shall relieve the Lessee from liability thereunder;
| ANNEX A |
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[Master Indenture]
(iii) such agreement was entered into on an arm’s length basis with fair market terms on the date of its execution, and does not require any prepayment of rental payments throughout the term of such agreement;
(iv) [______];
(v) such agreement (or any related consent, acknowledgment of assignment, side letter or similar written instrument executed by such Lessee) permits the assignment, pledge, mortgage or other similar disposition of the Lease of the related Railcar without notice to or consent by the Lessee (or, in the case of a written instrument described in the foregoing parenthetical, any further notice to or consent by the Lessee), it being understood that the inclusion within such permission or written instrument of language to the effect that such Lessee consent is conditioned on the assignees’ agreement that it takes its interest in the Railcar and/or related Lease subject to the rights of the Lessee in such Railcar under the Lease, including the right of quiet enjoyment, shall not in and of itself be deemed to constitute the Lease as other than a Permitted Lease; and
(vi) such agreement contains a provision substantially to the effect that the lease rentals payable under such agreement are not subject to offset, deduction or counterclaim (except as expressly contemplated in any rental abatement provisions contained in a Full Service Lease); provided that this clause (vi) shall not apply (x) if such agreement is subject to the terms of, or entered into pursuant to, an existing master lease agreement dated on or prior to a Closing Date which does not contain such a provision or (y) to any Car Hire Lease.
“Permitted Lessee” means any of the following:
(i) a railroad company or companies (that is not a Credit Bankrupt, Greenbrier or any Affiliate of Greenbrier) organized under the laws of the United States of America or any state thereof or the District of Columbia, Canada or any province thereof, or Mexico or any state thereof;
(ii) a company with which Greenbrier or Affiliates of Greenbrier would do business in the ordinary course of its business with respect to railcars which it owns or manages for its own account (other than railroad companies, Greenbrier, Affiliates of Greenbrier or Credit Bankrupts) for use in their business; and whose credit profile does not vary materially from the credit profile of lessees of other railcars owned, leased or managed by the Servicer for its own account;
(iii) wholly-owned Subsidiaries of Greenbrier organized under the laws of (x) Canada or any political subdivision thereof or (y) Mexico or any political subdivision thereof, in each case so long as such Leases are on an arm’s length basis; or
(iv) the Canadian Subsidiary;
provided, however, that a Person organized under the laws of Mexico or any state thereof (a “Mexican Lessee”) shall not constitute a Permitted Lessee unless after giving effect to the
| ANNEX A |
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[Master Indenture]
contemplated lease to such Mexican Lessee, the percentage of Portfolio Railcars in the aggregate (as measured by Adjusted Value) leased (or subleased by a Lessee organized under the laws of the United States of America or any state thereof or the District of Columbia, Canada or any province thereof to a sublessee organized under the laws of Mexico or any state thereof, as applicable) to all Mexican Lessees does not exceed 20% of the Adjusted Value of the Portfolio Railcars in the aggregate.
“[______].
“Permitted Railcar Acquisition” has the meaning given to such term in Section 5.03(c).
“Permitted Railcar Disposition” has the meaning given to such term in Section 5.03(a).
“Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any political subdivision thereof or any other legal entity, including public bodies.
“Plan” has the meaning given to such term in Section 2.11(g)(i).
“Portfolio” means, at any time, all Portfolio Railcars and the Leases related to such Railcars.
“Portfolio Lease” means, as of any date of determination, any Lease related to any Portfolio Railcar.
“Portfolio Railcars” means, as of any date of determination, all Railcars then owned by the Issuer that are subject to the Security Interest granted pursuant to this Master Indenture.
“Prefunding Account”, with respect to a Series, if applicable, has the meaning given to such term in the related Series Supplement.
“Principal Terms” means, with respect to any Series, all of the following information: (i) the name or designation of such Series and the Classes of Notes to constitute such Series; (ii) the initial principal balance of the Notes to be issued for such Series (or method for calculating such balance); (iii) the interest rate to be paid with respect to each Class of Notes for such Series; (iv) the Payment Date and the date or dates from which interest shall accrue and on which principal is scheduled to be paid; (v) the designation of any Series Accounts and Class Accounts, if any, for such Series and the terms governing the operation of any such Series Accounts and Class Accounts, if any; (vi) the Final Maturity Date; (vii) the Control Party; (viii) the Scheduled Principal Payment Amounts for each Class of Notes within such Series, (ix) in the case of an Additional Series, the rights to payment of interest and principal, which rights shall not be inconsistent with the Flow of Funds and this Master Indenture; (x) in the case of an Additional Series, the terms, if any, for the optional or early redemption of such Additional Series, (xi) in the case of an Additional Series, the form, authorization, execution and delivery, and the manner of redemption and repayment of such Additional Series, which terms shall be substantially similar to those applicable to the Initial Notes and in any event not inconsistent with the terms of this Master Indenture; (xii) in the case of an Additional Series, the legends applicable to such Additional Series, if any, which are required in
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[Master Indenture]
addition to those set forth in this Master Indenture; (xiii) in the case of an Additional Series, whether the Notes of such Series are eligible for purchase by ERISA plans; and (xiv) any other terms of such Series.
“Private Placement Legend” means the legend initially set forth on the Notes in the form set forth in Section 2.02.
“Pro Forma Lease” has the meaning given to such term in Section 5.03(e)(ii).
“Proceeding” means any suit in equity, action at law, or other judicial or administrative proceeding.
“Proceeds” means (a) all “proceeds” as defined in Article 9 of the UCC, (b) dividends, payments or distributions made with respect to any Investment Property and (c) whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected, converted or otherwise disposed of, whether such disposition is voluntary or involuntary.
“Prospective Operating Expenses” means, as of any date of determination, the Administrator’s (after consulting with the Servicer) good faith estimate of significant anticipated Operating Expenses expected to be incurred over the next twelve Collection Periods that could impact the Issuer’s ability to pay interest and Scheduled Principal Payment Amounts.
“Provincial Personal Property Security Act” means, in respect of each province or territory in Canada (other than Quebec), the Personal Property Security Act as from time to time in effect in such province or territory and, in respect of Quebec, the Civil Code of Quebec as from time to time in effect in such province.
“Prudent Industry Practice” means at a particular time and to the extent the same are generally known by those in the industry, the standard of operating and maintenance practices, methods and acts, including, but not limited to those required by the Field Manual of the AAR, FRA rules and regulations and Interchange Rules, which, in the light of the relevant facts is generally engaged in or approved by a significant portion of the owners, managers and operators of railcars in the United States that are similar to the Portfolio Railcars, could have been expected to accomplish the desired result consistent with good business practices, reliability, safety and expedition. Prudent Industry Practice is not intended to require optimum practice, method or acts, but rather a spectrum of possible practices, methods or acts that are generally engaged in by other owners, managers and operators of railcars in the United States which are similar to the Portfolio Railcars.
“[______].
“Purchase Price” means (a) in the case of a Permitted Railcar Acquisition, the amount to be paid to the seller of a Railcar pursuant to the related Asset Transfer Agreement, and (b) in the case of a Required Modification or an Optional Modification, the cost of such Required Modification or Optional Modification, as provided in the Modification Agreement (if any) with the Supplier of such Required Modification or Optional Modification.
| ANNEX A |
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[Master Indenture]
“Purchaser” means an Initial Purchaser.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Institutional Buyer” means a “qualified institutional buyer” as defined in Rule 144A promulgated under the Securities Act.
“Qualifying Replacement Railcars” means, in relation to a Replacement Exchange, Railcars that (a) are of at least a substantially comparable remaining economic useful life to the average remaining useful economic life of the Reference Sold Railcars, and (b) are (i) if subject to a Lease, such Lease is a Comparable Lease or (ii) if not subject to a Lease, the Administrator, on behalf of the Issuer, certifies to the Indenture Trustee that it has a reasonable, good faith expectation that such non-leased Railcars will generate at least the same amount of monthly lease revenue (once placed under Lease) as Railcars subject to a Comparable Lease.
“Railcar” means an item of railroad rolling stock, together with (i) any and all replacements or substitutions thereof, (ii) any and all tangible components thereof and (iii) any and all related appliances, Parts, accessories, appurtenances, accessions, additions, improvements to and replacements from time to time incorporated or installed in any item thereof.
“Railcar Advance Rate” means, as of any Payment Date and as determined for the Equipment Notes, and giving effect to all Flow of Funds allocations and other transactions occurring on such Payment Date, the percentage equivalent of a fraction, the numerator of which is the aggregate Outstanding Principal Balance of the Equipment Notes as of such Payment Date, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such Payment Date.
“Railcar Disposition” means any sale, transfer or other disposition of any Railcar (or an interest therein), including by way of a Permitted Discretionary Sale, Involuntary Disposition, [______] or Scrap Value Disposition.
“Railroad Authority” means the STB, the AAR, and/or any other Governmental Authority which, from time to time, has control or supervision of railways or has jurisdiction over the railworthiness, operation and/or maintenance of a Railcar operating in interchange.
“Railroad Mileage Credits” means the mileage credit payments made by railroads under their applicable tariffs to the registered owner of identifying marks on the railcars.
“Rapid Amortization Class” means a Class affected by a Rapid Amortization Event, i.e., a Rapid Amortization Event has occurred with respect to the Series of which such Class is a part and such Rapid Amortization Event applies to such Class.
“Rapid Amortization Date”, with respect to a Series, is defined in the related Series Supplement, if applicable.
“Rapid Amortization Event”, with respect to a Series, is defined in the related Series Supplement, if applicable.
| ANNEX A |
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[Master Indenture]
“Rapid Amortization Notes” means the Notes of a Rapid Amortization Class or Rapid Amortization Series, as applicable.
“Rapid Amortization Series” means a Series affected by a Rapid Amortization Event, i.e., a Rapid Amortization Event has occurred with respect to such Series.
“Rating Agency” means, with respect to a Series of Notes, each nationally recognized statistical rating organization hired by the Issuer to issue a rating with respect to such Series of Notes or Class thereof as specified in the applicable Series Supplement; provided that such organization shall be deemed to be a Rating Agency only with respect to such Series or Class of Notes, as specified in the related Series Supplement, only so long as such Series or Class of Notes is Outstanding, and only so long as such organization maintains a rating on such Series or Class of Notes.
“Rating Agency Confirmation” means, with respect to any request, action, event or circumstance, and each Rating Agency then maintaining a rating on any Series of Notes (or Class thereof) then Outstanding, (a) written confirmation by such Rating Agency that fulfillment of such request or the taking of the requested action, or the occurrence of such event or circumstance will not itself cause the Rating Agency to downgrade or withdraw its then-current rating assigned to any such Series or Class (with such written confirmation being required from KBRA in connection with the issuance of Additional Series of Notes), or (b) written notice to such Rating Agency of such request, action, event or circumstance, shall have been given by the Issuer at least ten (10) Business Days prior to the request, action, event or circumstance (or, if Rating Agency Confirmation is required by the applicable transaction documents following the occurrence of an event or circumstance such written notice shall have been given by the Issuer immediately following the occurrence of such event or circumstance) and (i) prior to the expiration of such ten (10) Business Day period, such Rating Agency shall not have issued any written notice that the fulfillment of such request or the taking of the requested action, or occurrence of such event or circumstance will itself cause such Rating Agency to downgrade or withdraw its then current rating assigned to any of the Notes or (ii) such Rating Agency has communicated that it will not review such request, action, event or circumstances for purposes of evaluating whether to confirm its then current rating assigned to any of the Notes; provided, that if a Rating Agency has made a public statement to the effect that it will no longer review requests, actions, events or circumstances of the type requiring receipt of a Rating Agency Confirmation for purposes of evaluating whether to confirm the then-current rating of obligations rated by such Rating Agency, then such public statement shall be deemed to be a Rating Agency Confirmation with respect to such Rating Agency for any such request, action, event or circumstance.
“Received Currency” has the meaning given to such term in Section 13.06(a).
“Record Date” means with respect to each Payment Date, the close of business on the fifth Business Day immediately preceding such Payment Date and, with respect to the date on which any Direction is to be given by Noteholders, the close of business on the last Business Day prior to the solicitation of such Direction.
| ANNEX A |
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[Master Indenture]
“Redemption Date” means the date on which Notes of any Series or Class are redeemed pursuant to an Optional Redemption.
“Redemption/Defeasance Account” means an account established by the Indenture Trustee pursuant to Section 3.08.
“Redemption Fraction” has the meaning given to such term in Section 3.14(c).
“Redemption Notice” means, a notice sent by the Indenture Trustee to the Noteholders in respect of the Notes to be redeemed, as described in Section 3.13(d).
“Redemption Premium” means, with respect to the principal amount of any Series (or Class) of Notes to be prepaid on any prepayment date, an amount, if any, specified in the applicable Series Supplement.
“Redemption Price” means, with respect to any Series of Notes or Class thereof that will be the subject of an Optional Redemption, an amount (determined as of the Determination Date (or, in respect of the applicable Hedge Termination Value, the date of termination of any applicable Hedge Agreement) for the Redemption Date for such Optional Redemption) equal to, unless otherwise specified in the related Series Supplement, the Outstanding Principal Balance of the Series or Class of Notes being repaid together with all accrued and unpaid interest thereon and, if specified in the related Series Supplement, (a) the Redemption Premium thereon and (b) the Hedge Termination Value, if any, owed by the Issuer to Hedge Providers in connection therewith. For purposes of reporting any Hedge Termination Value applicable to an Optional Redemption, the Redemption Notice shall include an estimated amount of any such Hedge Termination Value as of the date of such Redemption Notice, and a supplement to the Redemption Notice will be delivered prior to the Redemption Date with such final Hedge Termination Value ascertained as of the date of termination of any applicable Hedge Agreement.
“Reference Sold Railcars” means, with respect to Qualifying Replacement Railcars, the Sold Railcars to which the relevant Net Disposition Proceeds relate.
“Register” has the meaning given to such term in Section 2.03(a).
“Regulation D” means Regulation D under the Securities Act.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Book-Entry Notes” means the Unrestricted Book-Entry Notes and the Regulation S Temporary Book-Entry Notes.
“Regulation S Temporary Book-Entry Note” means Equipment Notes initially sold outside the United States in reliance on Regulation S, represented by a single temporary global note in fully registered form, without interest coupons, the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for a Regulation S Temporary Book-Entry Note inscribed thereon.
| ANNEX A |
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[Master Indenture]
“Reimbursable Services” has the meaning given to such term in Section 5.4 of the Servicing Agreement.
“Related Document Inspection” has the meaning given to such term in Section 5.04(y)(i).
“Related Documents” has the meaning given to such term in Section 5.04(y)(i).
“Relative Documents” means the Service Provider Agreements, the Asset Transfer Agreements, this Master Indenture, the Series Supplements, the Notes, each Head Lease, and the Canadian Lease Security Agreement, together with all certificates, documents and instruments delivered pursuant to any of the foregoing.
“Relevant Information” means the information provided by the Service Providers to the Administrator that is required to enable the Administrator make the calculations contemplated by Section 3.10(a) through (e).
“Replacement Exchange” means the acquisition by the Issuer of one or more Qualifying Replacement Railcars with all or a portion of the Net Disposition Proceeds from a Permitted Railcar Disposition (other than a Scrap Value Disposition), in each case within the Replacement Period applicable to such Permitted Railcar Disposition, as provided in Section 5.03.
“Replacement Period” means, with respect to the Issuer’s use of all or any portion of Net Disposition Proceeds as permitted in accordance with this Master Indenture, the period beginning on the date of the applicable Railcar Disposition and ending on the earlier of (i) either (A) the 180th day after the date of the Issuer’s receipt of all Net Disposition Proceeds from such Railcar Disposition, or (B) if all Railcar Dispositions occurring during a single Collection Period in the aggregate relate to more than fifty percent (50%) of the Adjusted Value of all Portfolio Railcars in existence at beginning of such Collection Period, the 90th day after the date of the Issuer’s receipt of all Net Disposition Proceeds from such Railcar Disposition, and (ii) the occurrence of an Event of Default.
“Required Expense Amount” means, with respect to a Payment Date, an amount equal to the sum of (i) the Operating Expenses payable on such Payment Date, consisting of all Operating Expenses actually incurred by the Service Providers and not previously reimbursed and the amounts shown on all invoices received from the Service Providers for the reimbursement or payment of Operating Expenses due or to become due on or before such Payment Date and not previously paid or reimbursed, (ii) a reserve amount to be deposited for Operating Expenses that are due and payable during the period beginning on such Payment Date and ending on (but excluding) the next Payment Date and (iii) a reserve amount to be deposited for Prospective Operating Expenses.
“Required Expense Deposit” has the meaning given to such term in Section 3.10(a)(ii).
“Required Expense Reserve” means the sum of the amounts described in clauses (ii) and (iii) in the definition of “Required Expense Amount.”
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[Master Indenture]
“Required Modification” means any alteration or modification of a Portfolio Railcar required by the AAR, the FRA, the United States Department of Transportation or any other United States or state governmental agency or any other applicable law (including without limitation, the laws of Mexico, Canada or any of their respective states and territories (as applicable)) and required by such entity as a condition of continued use or operation of such Railcar in interchange.
“Required Prepayment Amount” has the meaning given such term in Section 5.01(z).
“Requisite Majority” means Noteholders that, individually or in the aggregate, representing more than fifty percent (50%) of the then Outstanding Principal Balance of the Senior Class (other than Equipment Notes held by GBX Leasing or its Affiliates) for as long as such Class of Notes remain Outstanding.
“Responsible Officer” means, with respect to the subject matter of any covenant, agreement or obligation of any party contained in any Operative Agreement, the President, or any Vice President, Assistant Vice President, Treasurer, Assistant Treasurer or other officer, who in the normal performance of his or her operational responsibility would have knowledge of such matter and the requirements with respect thereto; and with respect to the Indenture Trustee, any Vice President, Assistant Vice President, Assistant Treasurer, Assistant Secretary, Corporate Trust Officer or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers, in each case, having direct responsibility for the administration of this Indenture; and when used in connection with the Issuer, shall include (i) any such officer of the Servicer or the Administrator acting on behalf of the Issuer under the applicable Service Provider Agreement, as the case may be, (ii) any such officer of the Member, or (iii) any such officer of a manager of the Member.
“Restricted Lessee Contact” has the meaning given to such term in Section 2.1(a) of the Servicing Agreement.
“Rider” means a schedule or rider to a master lease agreement between the lessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Rating Services, a S&P Global Ratings business, or any successor to such entity’s business of rating securities, or, if such entity or its successor shall for any reason no longer perform the functions of a securities rating agency, “S&P” shall be deemed to refer to any other nationally recognized rating agency designated by the Issuer.
“Schedule” means a schedule or rider to a master lease agreement between the lessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“Scheduled Principal Payment Amount” means, for the Notes of any Series or Class, as applicable, on any Payment Date, the excess, if any, of (x) the then Outstanding Principal Balance
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[Master Indenture]
of such Series or Class of Notes, as applicable, over (y) the Scheduled Targeted Principal Balance of such Series or Class, as applicable, for such Payment Date.
“Scheduled Targeted Principal Balance” means, for each Class of Notes within a Series and for any Payment Date, the amount identified as such for that Class in the related Series Supplement, as it may be adjusted from time to time in accordance with Section 3.14.
“Scrap Value Disposition” has the meaning given to such term in Section 5.03(a)(v).
“Section 385 Controlled Partnership” means (i) a “controlled partnership” as defined in Treasury Regulation Section 1.385-1(c)(1) and (ii) a disregarded entity with respect to such a controlled partnership.
“Section 385 Expanded Group” has the meaning set forth in Treasury Regulation Section 1.385-1(c)(4) for an “expanded group”.
“Secured Obligations” has the meaning given such term in the Granting Clause.
“Secured Parties” means the holders of and/or obligees in respect of the Secured Obligations, including without limitation the Noteholders, the Liquidity Facility Providers (if any), the Servicer, the Administrator, the Insurance Manager, and the Hedge Providers.
“Securities” means any obligations of an issuer or any shares, participations or other interests in an issuer or in property or an enterprise of an issuer that (i) are represented by a certificate representing a security in bearer or registered form, or the transfer of which may be registered upon books maintained for that purpose by or on behalf of the issuer, (ii) are one of a class or series or by its terms is divisible into a class or series of shares, participations, interests or obligations and (iii)(A) are, or are of a type, dealt with or traded on securities exchanges or securities markets or (B) are a medium for investment and by their terms expressly provide that they are a security governed by Article 8 of the UCC.
“Securities Accounts” means all “securities accounts” as defined in Article 9 of the UCC.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Entitlements” means all “security entitlements” as defined in Article 9 of the UCC.
“Security Interests” means the security interests and other Encumbrances granted or expressed to be granted in the Collateral pursuant to this Master Indenture.
“Seller” has the meaning given to such term in the applicable Asset Transfer Agreement.
“Senior Claim” has the meaning given to such term in Section 11.01(a).
“Senior Claimant” has the meaning given to such term in Section 11.01(a).
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[Master Indenture]
“Senior Class” means (a) initially, all Outstanding Class A Equipment Notes, (b) on and after the payment in full of all Outstanding Obligations with respect to the Class A Equipment Notes, all Outstanding Class B Equipment Notes, (c) on and after the payment in full of all Outstanding Obligations with respect to the Class A Equipment Notes and Class B Equipment Notes, all Outstanding Class C Equipment Notes and (d) on and after the payment in full of all Outstanding Obligations with respect to the Equipment Notes, all Outstanding Subordinated Notes.
“Senior Hedge Payments” means all payments owed by the Issuer under a Hedge Agreement (including any Hedge Termination Value owed by the Issuer to the extent not satisfied from funds received by a Hedge Provider from any replacement Hedge Provider) except for Subordinated Hedge Payments.
“Senior Notes” has the meaning given to such term in Section 2.17(c).
“Series” means any series of Notes established pursuant to a Series Supplement.
“Series 2022-1 Notes” means the Initial Notes.
“Series Account” has the meaning given to such term in Section 3.01(a).
“Series Issuance Date” means, with respect to any Series of Additional Notes, the date on which the Notes of such Series are issued in accordance with the provisions of Section 9.06 and the related Series Supplement.
“Series Supplement” means any supplement to this Master Indenture, other than an Indenture Supplement, which sets forth the Principal Terms and other terms and conditions of a Series of Notes issued under this Master Indenture and such Series Supplement.
“Service Provider” means each of or all of (as the context may require) the Servicer, the Insurance Manager, the Indenture Trustee (including in its capacities as Paying Agent and Note Registrar), the Administrator and the Liquidity Facility Providers (if any).
“Service Provider Agreements” means, when used with respect to any Service Provider, the Servicing Agreement, the Insurance Agreement, the Administrative Services Agreement, this Master Indenture, or, in the case of a Liquidity Facility Provider (if any), the applicable agreements providing for payment or reimbursement of fees and expenses of such Liquidity Facility Provider, in each case as applicable to such Service Provider which is party thereto, or any of the foregoing individually as the context requires.
“Service Provider Fees” means (a) all fees, expenses and indemnities due or reimbursable to the Indenture Trustee (including in its capacities as Paying Agent and Note Registrar), the Servicer, the Insurance Manager and the Administrator in accordance with the applicable agreements with such Service Providers (including the Relative Documents), including the Indenture Trustee Fees due to the Indenture Trustee hereunder and the Servicing Fee due to the Servicer under the Servicing Agreement, but excluding any such amounts that constitute Operating
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[Master Indenture]
Expenses, and (b) all fees and expenses (but not reimbursement or indemnification obligations) payable to the Liquidity Facility Providers in connection with the Liquidity Facilities (if any).
“Servicer” means GMS, in its capacity as Servicer under the Servicing Agreement, including its successors in interest, until another Person shall have become the “Servicer” under such agreement, after which “Servicer” shall mean such other Person.
“Servicer Advance” has the meaning given to such term in the Servicing Agreement.
“Servicer Default” has the meaning given to such term in Section 8.2 of the Servicing Agreement.
“Servicer Optional Modification Cap” has the meaning given to such term in Section 3.11(a)(8).
“Servicer Optional Modification Expense” has the meaning given to such term in Section 3.11(a)(8).
“Servicer Termination Event” means the occurrence of any event specified in the Servicing Agreement (and with respect to events that include a cure or grace period or notice requirement, following the elapsing of such period without cure or the delivery of such notice, as applicable) which gives an Obligor or its assignees the right to effect a replacement of the current Servicer thereunder with a successor or replacement Servicer.
“Servicer’s Fleet” means the GMS Fleet as of the Closing Date or as of any date thereafter and does not include Portfolio Railcars and, if a Successor Servicer shall have been appointed pursuant to the Servicing Agreement, “Servicer’s Fleet” means all railcars managed by such Servicer or its Affiliates, in either case, other than Portfolio Railcars.
“Servicing Agreement” means the Servicing Agreement dated as of the Initial Closing Date among the Issuer, the Canadian Subsidiary, GMS, as initial Servicer thereunder, and GBX Leasing, as Administrator.
“Servicing Fee” means, for any Payment Date, the compensation payable to the Servicer on such Payment Date in accordance with the terms of, and designated as such in, the Servicing Agreement.
“Similar Law” has the meaning given to such term in Section 2.11(g)(i).
“Sold Railcars” has the meaning given to such term in Section 5.03(a)(iii)(B).
“[______].
“Stated Interest” means, with respect to any Note, interest payable on such Note at the Stated Rate for such Note.
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[Master Indenture]
“Stated Interest Amount” means, with respect to any Series of Notes (or Class thereof), that amount of Stated Interest due and payable on such Series of Notes (or Class thereof) on a Payment Date, including any Stated Interest due and payable on a prior Payment Date that was not paid on such Payment Date, as described in the last sentence of Section 3.04(c).
“Stated Interest Shortfall” has the meaning given to such term in Section 3.10(d)(i).
“Stated Rate” means, as specified in the related Series Supplement, the rate of interest payable on a specific Note of the related Series or Class.
“STB” means the Surface Transportation Board of the United States Department of Transportation or any successor thereto.
“Stock” means all shares of capital stock, all beneficial interests in trusts, all partnership interests (general or limited) in a partnership, all membership interests in limited liability companies, all ordinary shares and preferred shares and any options, warrants and other rights to acquire such shares or interests, as applicable.
“Subject Note” has the meaning given to such term in Section 2.17(a).
“Subordinated Hedge Payment” means (i) a payment on account of a Hedge Termination Value owed by the Issuer as a result of an early termination of a Hedge Agreement following an event of default or termination event in relation to which the Hedge Provider is the defaulting party or the sole affected party (except in the case of a termination event related to illegality or a termination event related to a tax event) and (ii) any Hedge Partial Termination Value payable by the Issuer as to which Rating Agency Confirmation has not been received.
“Subordinated Note” means any one of the promissory notes (representing any of the Class R Notes) executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Series Supplement.
“Subordinated Note Amortization Date” means the earlier of (i) the Rapid Amortization Date and (ii) the first Payment Date upon which all amounts owing in respect of the Class A Equipment Notes, the Class B Equipment Notes and the Class C Equipment Notes (and all other obligations senior thereto in accordance with the Flow of Funds) have been paid in full in accordance with the Flow of Funds.
“Subordinated Note Purchase Agreement” with respect to a Series of Subordinated Notes, has the meaning given to such term in the related Series Supplement.
“Subordinated Railcar Advance Rate” means, as of any Payment Date and as determined for the Subordinated Notes, and giving effect to all Flow of Funds allocations and other transactions occurring on such Payment Date, the percentage equivalent of a fraction, the numerator of which is the aggregate Outstanding Principal Balance of the Subordinated Notes as of such Payment Date, and the denominator of which is the aggregate Adjusted Value of the Portfolio Railcars as of such Payment Date.
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[Master Indenture]
“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.
“Successor Administrator” has the meaning given to such term in Section 4(d) of the Administrative Services Agreement.
“Successor Insurance Manager” has the meaning given to such term in Section 6.3(b) of the Insurance Agreement.
“Successor Servicer” has the meaning given to such term in Section 8.6 of the Servicing Agreement.
“Supplier” means the Person that supplies or installs a Required Modification or Optional Modification and to whom payment for the Purchase Price of such Required Modification or Optional Modification is to be made.
“Supporting Obligation” means all “supporting obligations” as defined in Article 9 of the UCC.
“Tax” and “Taxes” mean any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, loss, damage, liability, expense, additions to tax and additional amounts or costs incurred or imposed with respect thereto) imposed or otherwise assessed by the United States or by any state, local or foreign government (or any subdivision or agency thereof) or other taxing authority, including, without limitation: taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth and similar charges; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, taxes on goods and services, gains taxes, license, registration and documentation fees, customs duties, tariffs, and similar charges.
“Third Party Event” has the meaning given to such term in Section 5.04.
“Total Loss” means, with respect to any Railcar (a) if the same is subject to a Lease, an Event of Loss (as defined in such Lease) or the like (however so defined); or (b) if the same is not subject to a Lease, (i) its actual, constructive, compromised, arranged or agreed total loss, (ii) its destruction, damage beyond economic repair or being rendered unfit for commercial use for any reason whatsoever, (iii) its requisition for title, confiscation, restraint, detention, forfeiture or any compulsory acquisition or seizure or requisition for hire (other than a requisition for hire for a temporary period not exceeding 180 days) by or under the order of any government (whether civil, military or de facto) or public or local authority or (iv) its hijacking, theft or disappearance, resulting in loss of possession by the owner or operator thereof for a period of ninety (90)
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[Master Indenture]
consecutive days or longer. A Total Loss with respect to any Railcar shall be deemed to occur on the date on which such Total Loss is deemed pursuant to the relevant Lease to have occurred or, if such Lease does not so deem or the relevant Railcar is not subject to a Lease, (A) in the case of an actual total loss or destruction, damage beyond economic repair or being rendered permanently unfit, the date on which such loss, destruction, damage or rendering occurs (or, if the date of loss or destruction is not known, the date on which the relevant Railcar was last heard of); (B) in the case of a constructive, compromised, arranged or agreed total loss, the earlier of (1) the date 30 days after the date on which notice claiming such total loss is issued to the insurers or brokers and (2) the date on which such loss is agreed or compromised by the insurers; (C) in the case of requisition for title, confiscation, restraint, detention, forfeiture, compulsory acquisition or seizure, the date on which the same takes effect; (D) in the case of a requisition for hire, the expiration of a period of 180 days from the date on which such requisition commenced (or, if earlier, the date upon which insurers make payment on the basis of a Total Loss); or (E) in the case of clause (iv) above, the final day of the period of 90 consecutive days referred to therein.
“Transaction Parties” means the Issuer, the Canadian Subsidiary, GBX Leasing, GMS, the Indenture Trustee, the Initial Purchasers or any of their respective Affiliates.
“Transferee” has the meaning given to such term in Section 2.17(a).
“Transferred Note” has the meaning given to such term in Section 2.17(a).
“Treasury Regulations” means the income tax regulations promulgated under the Code.
“UCC” means the Uniform Commercial Code as enacted in the State of New York, or when the context implies, the Uniform Commercial Code as in effect from time to time in any other applicable jurisdiction.
“Unit Inspection” has the meaning given to such term in Section 5.04(y)(i).
“United States Person” and “U.S. Person” have the meanings given to such terms in Regulation S under the Securities Act.
“Unrestricted Book-Entry Note” shall have the meaning given to such term in Section 2.01(c)(iv), the form of which shall be substantially in the form of the applicable Form of Note for such Equipment Note, with the legends required by Section 2.02 for an Unrestricted Book-Entry Note inscribed thereon.
“U.S. Bank N.A.” means U.S. Bank National Association, a national banking association, and its successors in interest.
“U.S. Bank Trust Co.” means U.S. Bank Trust Company, National Association, a national banking association, and its successors in interest.
“U.S. GAAP” means generally accepted accounting principles in the United States, as in effect from time to time.
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[Master Indenture]
“U.S. Government Obligations” has the meaning given to such term in Section 12.02(a).
“U.S.-Restricted Note” has the meaning given to such term in Section 2.17(b).
“WTC” means Wilmington Trust Company, a Delaware trust company.
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