TRUST INDENTURE AND
SECURITY AGREEMENT
(GATX TRUST NO. 2008-2)
Dated as of November 6,
2008
GATX CORPORATION
,
as Owner
U.S. BANK NATIONAL
ASSOCIATION ,
as Indenture Trustee
Assorted Railroad Tank
Cars, Gondola Cars and Freight Cars
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Page
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3
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1.01. Certain Definitions
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3
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ARTICLE II THE EQUIPMENT NOTES
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2.01. Form of Equipment Notes
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2.02. Terms of Equipment Notes
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2.04. Application of Payments to Principal
Amount and Interest
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10
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2.05. Termination of Interest in Indenture
Estate
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11
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2.06. Transfer of Equipment Notes
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11
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2.07. Mutilated, Destroyed, Lost or Stolen
Equipment Notes
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2.08. Payment of Transfer Taxes
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12
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2.10. Redemptions; Notice of
Redemption
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2.11. Equally and Ratably Secured
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ARTICLE III RECEIPT, DISTRIBUTION AND
APPLICATION OF INCOME FROM THE INDENTURE ESTATE
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3.02. Payments in the Event of
Prepayment
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3.03. Payments after Event of Default
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3.05. Payments to the Owner
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ARTICLE IV COVENANTS OF THE
OWNER
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4.01. Marking of Equipment
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4.02. Prohibition Against Certain
Designations
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4.04. Maintenance; Possession; Compliance with
Laws
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4.06. Loss, Destruction, Requisition,
Etc
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4.08. Physical Damage Insurance
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4.09. Public Liability Insurance
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4.10. Certificate of Insurance
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4.11. Additional Insurance
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4.12. Duty of Owner to Furnish
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ARTICLE V REMEDIES OF THE INDENTURE TRUSTEE
UPON AN EVENT OF DEFAULT
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5.02. Acceleration; Rescission and
Annulment
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5.03. Remedies with Respect to Indenture
Estate
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30
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i
TABLE OF CONTENTS
(continued)
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5.04. Rights of the Owner
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5.05. Waiver of Existing Defaults
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ARTICLE VI DUTIES OF THE INDENTURE
TRUSTEE
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6.01. Action upon Event of Default
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6.02. Action upon Instructions
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6.04. No Duties Except as Specified in Indenture
or Instructions
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6.05. No Action Except under Indenture or
Instructions
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6.06. Disposition of Units
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6.07. Indenture Supplements for
Replacements
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6.08. Effect of Replacements
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ARTICLE VII THE INDENTURE
TRUSTEE
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7.01. Acceptance of Trusts and Duties
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7.03. No Representations or Warranties as to the
Equipment or Documents
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7.04. No Segregation of Moneys; No Interest;
Investments
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7.05. Reliance; Agents; Advice of
Counsel
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7.06. Not Acting in Individual
Capacity
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ARTICLE VIII CERTAIN LIMITATIONS ON
INDENTURE TRUSTEE’S RIGHTS
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ARTICLE IX SUCCESSOR TRUSTEES
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9.01. Resignation of Indenture Trustee;
Appointment of Successor
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ARTICLE X SUPPLEMENTS AND AMENDMENTS TO
THIS INDENTURE AND OTHER DOCUMENTS
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10.01. Supplemental Indentures without Consent
of Holders
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10.02. Indenture Trustee Protected
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10.03. Request of Substance, Not Form
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10.04. Documents Mailed to Holders
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11.01. Termination of Indenture
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40
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11.02. No Legal Title to Indenture Estate in
Holders
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40
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11.03. Sale of Equipment by Indenture Trustee is
Binding
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11.04. Remedies Cumulative
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11.05. Discontinuance of Proceedings
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11.06. Indenture and Equipment Notes for Benefit
of Owner, Indenture Trustee and Holders Only
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42
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11.09. Separate Counterparts
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11.10. Successors and Assigns
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ii
TABLE OF CONTENTS
(continued)
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Page
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42
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11.13. Normal Commercial Relations
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11.14. No Recourse Against Others
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EXHIBIT A
- Form of Trust Indenture
Supplement
ANNEX A -
Amortization Schedules
iii
TRUST INDENTURE AND SECURITY
AGREEMENT
(GATX TRUST NO. 2008-2)
THIS TRUST
INDENTURE AND SECURITY AGREEMENT (GATX Trust No. 2008-2)
dated as of November 6, 2008 (this “
Indenture ”), between GATX CORPORATION (the
“ Owner ”), and U.S. BANK NATIONAL
ASSOCIATION , a national banking association, as Indenture
Trustee hereunder and any successor appointed in accordance with
the terms hereof (herein called the “ Indenture
Trustee ”);
WHEREAS ,
the Owner and the Indenture Trustee desire by this Indenture, among
other things, (i) to provide for the issuance by the Owner of
the Equipment Notes, and (ii) to provide for the assignment,
mortgage and pledge by the Owner to the Indenture Trustee, as part
of the Indenture Estate hereunder, among other things, of, and the
grant of a security interest in, all of the Owner’s right,
title and interest in and to the Equipment and, except as
hereinafter expressly provided, all payments and other amounts
received hereunder in accordance with the terms hereof, in trust,
as security for, among other things, the Owner’s obligations
for the equal and ratable benefit of the holders of the Equipment
Notes; and
WHEREAS ,
all things necessary to make this Indenture the legal, valid and
binding obligation of the Owner and the Indenture Trustee, for the
uses and purposes herein set forth, in accordance with its terms,
have been done and performed and have happened.
NOW,
THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT
WITNESSETH , that, to secure the prompt payment of the
principal of and interest and Make-Whole Amount, if any, on and all
other amounts due with respect to, the Equipment Notes from time to
time outstanding hereunder and the performance and observance by
the Owner of all the agreements, covenants and provisions herein,
in the Participation Agreement and in the Equipment Notes all for
the benefit of the holders of the Equipment Notes, and for the uses
and purposes and subject to the terms and provisions hereof, and in
consideration of the premises and of the covenants herein
contained, and of the acceptance of the Equipment Notes by the Loan
Participant, the Owner does hereby sell, assign, transfer, convey,
mortgage, pledge, and confirm unto the Indenture Trustee, its
successors and assigns, for the security and benefit of the holders
of the Equipment Notes from time to time, a first priority security
interest in and mortgage lien on all right, title and interest of
the Owner in and to the following described property, rights,
interests and privileges (which collectively, including all
property hereafter required to be subjected to the Lien of this
Indenture by any instrument supplemental hereto being herein called
the “ Indenture Estate ”), to wit:
(1) the Equipment,
the Replacement Units and all substitutions therefor, all as more
particularly described in the Indenture Supplements executed and
delivered with respect to the Equipment or any such Replacement
Units or any substitutions therefor, as provided in this
Indenture;
(2) all
requisition proceeds with respect to the Equipment or any Unit
thereof;
[Trust Indenture and Security
Agreement (GATX Trust No. 2008-2)]
(3) all monies and
securities now or hereafter paid or deposited or required to be
paid or deposited with the Indenture Trustee pursuant to any term
of this Indenture or the Participation Agreement or required to be
held by the Indenture Trustee hereunder or thereunder;
(4) any Permitted
Lease assigned to the Indenture Trustee pursuant to
Section 4.04(c); and
(5) all proceeds
of the foregoing.
PROVIDED,
HOWEVER , that notwithstanding any of the foregoing provisions,
so long as no Event of Default shall have occurred and be
continuing, the Indenture Trustee shall not take or cause to be
taken any action contrary to the Owner’s or any Permitted
Lessee’s right hereunder to quiet enjoyment of the Equipment,
and to possess, use, retain and control the Equipment and all
revenues, income and profits derived therefrom.
TO HAVE AND TO
HOLD all and singular the aforesaid property unto the Indenture
Trustee, its successors and assigns, in trust for the benefit and
security of the holders of the Equipment Notes from time to time,
without any priority of any one Equipment Note over any other, and
for the uses and purposes, and subject to the terms and provisions,
set forth in this Indenture.
It is expressly
agreed that anything herein contained to the contrary
notwithstanding, the Owner shall remain liable under each of the
Indenture Agreements to perform all of the obligations, if any,
assumed by it thereunder, all in accordance with and pursuant to
the terms and provisions thereof, and the Indenture Trustee and the
holders of the Equipment Notes shall have no obligation or
liability under any of the Indenture Agreements by reason of or
arising out of this assignment, nor shall the Indenture Trustee or
the holders of the Equipment Notes be required or obligated in any
manner to perform or fulfill any obligations of the Owner under or
pursuant to any of the Indenture Agreements or, except as herein
expressly provided, to make any payment, or to make any inquiry as
to the nature or sufficiency of any payment received by it, or
present or file any claim, or take any action to collect or enforce
the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
The Owner does
hereby constitute the Indenture Trustee the true and lawful
attorney of the Owner, irrevocably, granted for good and valuable
consideration and coupled with an interest and with full power of
substitution, and with full power (in the name of the Owner or
otherwise) to ask for, require, demand, receive, compound and give
acquittance for any and all monies and claims for monies (in each
case including insurance and requisition proceeds) due and to
become due to the Owner under or arising out of the Indenture
Agreements, and all other property which now or hereafter
constitutes part of the Indenture Estate, to endorse any checks or
other instruments or orders in connection therewith and to file any
claims or to take any action or to institute any proceedings which
the Indenture Trustee may deem to be necessary or advisable in the
premises; provided that the Indenture Trustee shall not
exercise any such rights except upon the occurrence and during the
continuance of an Event of Default hereunder.
2
[Trust Indenture and Security
Agreement (GATX Trust No. 2008-2)]
The Owner agrees
that at any time and from time to time, upon the written request of
the Indenture Trustee, the Owner will promptly and duly execute and
deliver or cause to be executed and delivered any and all such
further instruments and documents as the Indenture Trustee may
reasonably deem to be necessary in order to obtain the full
benefits of this assignment and of the rights and powers herein
granted.
The Owner does
hereby warrant and represent that, except as permitted in the
Operative Agreements, it has not assigned or pledged, and hereby
covenants that it will not assign or pledge, so long as the
assignment hereunder shall remain in effect, any of its right,
title or interest hereby assigned, to anyone other than the
Indenture Trustee.
IT IS HEREBY
COVENANTED AND AGREED by and between the parties hereto as
follows:
1.01. Certain
Definitions . Unless the context otherwise requires, all
capitalized terms used herein and not otherwise defined shall have
the meanings set forth in Appendix A hereto for all
purposes of this Indenture. All references to articles, sections,
clauses, schedules and appendices in this Indenture are to
articles, sections, clauses, schedules and appendices in and to
this Indenture unless otherwise indicated.
3
[Trust Indenture and Security
Agreement (GATX Trust No. 2008-2)]
2.01. Form of
Equipment Notes . The Equipment Notes shall be substantially in
the form set forth below:
(Secured by Equipment owned by
GATX Corporation)
GATX Trust No. 2008-2 Series
___
Issued in Connection with certain
Railroad Rolling Stock
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No. ___
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New York, New York
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___,
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GATX
CORPORATION (herein called the “ Owner ”)
hereby promises to pay to U.S. BANK TRUST NATIONAL
ASSOCIATION , as Pass Through Trustee, or its registered
assigns, the principal sum of $
(or such lesser amount as shall equal the unpaid principal amount
of this Equipment Note), in lawful currency of the United States of
America, in installments payable on the dates set forth in
Exhibit A hereto, commencing
and thereafter to and including
,___, each such installment to be in an amount equal to the
corresponding percentage (if any) of the remaining principal
amount hereof set forth in Exhibit A hereto, together
with interest thereon on the amount of such principal amount
remaining unpaid from time to time from and including the date
hereof until such principal amount shall be due and payable,
payable on each May 15 and November 15, commencing ___,
2009, to the maturity date hereof at ___% per annum (the “
Debt Rate ”) (computed on the basis of a 360-day year
of twelve 30-day months). Interest on any overdue principal and (to
the extent legally enforceable) on overdue interest shall be
paid from the due date thereof at the Late Rate (computed on the
basis of a 360-day year of twelve 30-day months), payable on
demand.
For purposes
hereof, the term “ Indenture ” means the Trust
Indenture and Security Agreement (GATX Trust No. 2008-2) dated
as of November 6, 2008, between the Owner and U.S. Bank
National Association (the “ Indenture Trustee
”), as the same may be amended or supplemented from time to
time. All other capitalized terms used in this Equipment Note and
not defined herein shall have the respective meanings assigned in
the Indenture.
Payments with
respect to the principal amount hereof, Make-Whole Amount, if any,
and interest thereon shall be payable in U.S. dollars in
immediately available funds at the principal corporate trust
services office of the Indenture Trustee, or as otherwise provided
in the Indenture. Each such payment shall be made on the date such
payment is due and without any presentment or surrender of this
Equipment Note, except that in the case of the final payment, this
Equipment
4
[Trust Indenture and Security
Agreement (GATX Trust No. 2008-2)]
Note shall be
surrendered to the Indenture Trustee for cancellation promptly
after such payment. Whenever the date scheduled for any payment to
be made hereunder or under the Indenture shall not be a Business
Day, then such payment need not be made on such scheduled date but
may be made on the next succeeding Business Day with the same force
and effect as if made on such scheduled date and (provided such
payment is made on such next succeeding Business Day) no
interest shall accrue on the amount of such payment from and after
such scheduled date to the time of such payment on such next
succeeding Business Day.
Each holder
hereof, by its acceptance of this Equipment Note, agrees that each
payment received by it hereunder shall be applied, first ,
to the payment of accrued but unpaid interest on this Equipment
Note then due, second , to the payment of the unpaid
principal amount of this Equipment Note then due, third , to
the payment of any Make-Whole Amount then due, and fourth ,
to the payment of the remaining outstanding principal amount of
this Equipment Note; provided , that the Owner may only
prepay this Equipment Note as provided in Sections 2.09, 3.02
and 3.03 of the Indenture.
This Equipment
Note is one of the Equipment Notes referred to in the Indenture
which have been or are to be issued by the Owner pursuant to the
terms of the Indenture and relates to the Units described in
Indenture Supplement No. ___as Basic Group ___. The
Indenture Estate is held by the Indenture Trustee as security for,
among other things, the Equipment Notes. Reference is hereby made
to the Indenture for a statement of the rights of the holder of,
and the nature and extent of the security for, this Equipment Note,
as well as for a statement of the terms and conditions of the
trusts created by the Indenture, to all of which terms and
conditions in the Indenture each holder hereof agrees by its
acceptance of this Equipment Note.
This Equipment
Note is not subject to redemption or prepayment except as provided
in Sections 2.09, 3.02 and 3.03 of the Indenture. The holder
hereof, by its acceptance of this Equipment Note, agrees to be
bound by said provisions. This Equipment Note may be accelerated as
provided in Section 5.02 of the Indenture.
This Equipment
Note is a registered Equipment Note and is transferable, as
provided in the Indenture, only upon surrender of this Equipment
Note for registration of transfer duly endorsed by, or accompanied
by a written statement of transfer duly executed by, the registered
holder hereof or his attorney duly authorized in writing. Prior to
the due presentation for registration of transfer of this Equipment
Note, the Owner and the Indenture Trustee may deem and treat the
registered holder of this Equipment Note as the absolute owner and
holder hereof for the purpose of receiving payment of all amounts
payable with respect hereto and for all other purposes and shall
not be affected by any notice to the contrary.
THIS EQUIPMENT
NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH
ACT OR ANY SUCH APPLICABLE LAWS. THIS EQUIPMENT NOTE SHALL IN ALL
RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS.
5
[Trust Indenture and Security
Agreement (GATX Trust No. 2008-2)]
Each holder hereof
by its acceptance of this Equipment Note agrees that the Indenture
Trustee and its permitted successors and assigns shall under no
circumstances be personally liable for any amount payable under
this Equipment Note or under the Indenture or for any liability
under the Indenture or the Participation Agreement except as
provided in any Operative Agreement.
Unless the
certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee by manual signature, this Equipment
Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
6
[Trust Indenture and Security
Agreement (GATX Trust No. 2008-2)]
IN WITNESS
WHEREOF , the Owner has caused this Equipment Note to be
executed by one of its authorized officers as of the date
hereof.
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GATX
CORPORATION ,
as Owner
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By:
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Name:
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Title:
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[FORM OF INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION]
This is one of the
Equipment Notes referred to in the within-mentioned
Indenture.
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U.S. BANK
NATIONAL ASSOCIATION ,
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as Indenture
Trustee
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By:
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Authorized
Officer
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[Insert the related Amortization
Schedule from Annex A]
7
[Trust Indenture and Security
Agreement (GATX Trust No. 2008-2)]
2.02. Terms of
Equipment Notes . There shall be issued and delivered to the
Loan Participant one Equipment Note of the relevant Series for each
Basic Group identified in each Indenture Supplement executed and
delivered in respect of the Units in the maturity, principal amount
and bearing the interest at the Debt Rate, and the Equipment Notes
related to each such Indenture Supplement shall be in an aggregate
principal amount set forth on Schedule 4 to the Participation
Agreement. Each such Equipment Note shall evidence the loan made by
the Loan Participant to the Owner, each such Equipment Note to be
substantially in the form set forth in Section 2.01, with
deletions and insertions as appropriate, duly authenticated by the
Indenture Trustee and dated the Closing Date, and as having been
issued in connection with the Equipment under a related Indenture
Supplement. The Equipment Notes will be issued in registered form
only.
The principal
amount of and interest on each Equipment Note issued pursuant to
the provisions of this Indenture shall be payable on each Payment
Date, and in the case of the principal amount of such Equipment
Note, in installments payable on the date and in the amounts set
forth in Annex A hereto. Interest is payable on the
Equipment Notes at the Debt Rate (computed on the basis of a
360-day year of twelve 30-day months) on the principal amount
thereof remaining unpaid from time to time from and including the
immediately preceding Payment Date to but excluding the date of
payment.
Each Equipment
Note shall bear interest, payable on demand, at the Late Rate
(calculated on the basis of a year of 360 days comprised of
twelve 30-day months) on any part of the principal amount, any
Make-Whole Amount, if applicable, and, to the extent permitted by
applicable law, interest and any other amounts payable thereunder
not paid when due for any period during which the same shall be
overdue, in each case for the period the same is overdue. Amounts
under any Equipment Note shall be overdue if not paid when due
(whether at stated maturity, by acceleration or
otherwise).
The Equipment
Notes shall be executed on behalf of the Owner by one of its
authorized officers. Equipment Notes bearing the signatures of
individuals who were at any time the proper officers of the Owner
shall bind the Owner, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the
authentication and delivery of such Equipment Notes or did not hold
such offices at the respective dates of such Equipment Notes. The
Owner may from time to time execute and deliver Equipment Notes
with respect to the Equipment to the Indenture Trustee for
authentication upon original issue and such Equipment Notes shall
thereupon be authenticated and delivered by the Indenture Trustee
upon the written request of the Owner signed by an authorized
officer of the Owner.
No Equipment Note
shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless it shall have been
authenticated by or on behalf of the Indenture Trustee by manual or
facsimile signature.
2.03. Method of
Payment . (a) The principal of and Make-Whole
Amount, if any, interest on each Equipment Note and other amounts
due under the Equipment Notes or hereunder will be payable in
U.S. dollars in immediately available funds not later than
11:00 a.m. Chicago, Illinois time, on the due date thereof at
the principal corporate trust services office of the Indenture
Trustee or as otherwise directed in the manner provided herein and
payment of such
8
[Trust Indenture and Security
Agreement (GATX Trust No. 2008-2)]
amounts to the
Indenture Trustee shall be deemed to satisfy the Owner’s
obligation to make such payment. The Owner shall not have any
responsibility for the distribution of such payment to any holder
of an Equipment Note. Notwithstanding the foregoing or any
provision in any Equipment Note to the contrary, the Indenture
Trustee will pay, or cause to be paid, if so requested by any
holder of an Equipment Note by written notice to the Owner and the
Indenture Trustee, all amounts payable by the Owner hereunder to
such holder or a nominee therefor either (i) by transferring
by wire in immediately available funds prior to 2:00 p.m.,
Chicago, Illinois time on the due date of payment, to an account
maintained by such holder with a bank in the United States the
amount to be distributed to such holder or (ii) by mailing a
check denominated in U.S. dollars to such holder at such address as
such holder shall have specified in such notice. If the Indenture
Trustee shall fail to make any such payment as provided in the
immediately foregoing sentence after its receipt of funds at the
place and prior to the time specified above, the Indenture Trustee,
in its individual capacity and not as trustee, agrees to compensate
such holders for loss of use of funds at the then applicable
federal funds rate until such payment is made and the Indenture
Trustee shall be entitled to any interest earned on such funds
until such payment is made. Any payment made hereunder shall be
made without any presentment or surrender of any Equipment Note,
except that, in the case of the final payment in respect of any
Equipment Note, such Equipment Note shall be surrendered to the
Indenture Trustee for cancellation promptly after such payment.
Notwithstanding any other provision of this Indenture to the
contrary, the Indenture Trustee shall not be required to make, or
cause to be made, wire transfers as aforesaid prior to the first
Business Day on which it is practicable for the Indenture Trustee
to do so in view of the time of day when the funds to be so
transferred were received by it if such funds were received after
1:00 p.m., Chicago, Illinois time, at the place of payment. So
long as any signatory to the Participation Agreement or nominee
thereof shall be a registered holder of an Equipment Note, all
payments to it shall be made to the account of such holder
specified in Schedule 2 thereto and otherwise in the manner
provided in or pursuant to the Participation Agreement unless it
shall have specified some other account or manner of payment by
notice to the Indenture Trustee consistent with this
Section 2.03.
(b) Whenever
the date scheduled for any payment to be made hereunder or under
any Equipment Note shall not be a Business Day, then such payment
need not be made on such scheduled date but may be made on the next
succeeding Business Day with the same force and effect as if made
on such scheduled date and (provided such payment is made on such
next succeeding Business Day) no interest shall accrue on the
amount of such payment from and after such scheduled date to the
time of such payment on such next succeeding Business
Day.
(c) The
Indenture Trustee, as agent for the Owner, shall exclude and
withhold at the appropriate rate from each payment of principal of,
interest on, any Make-Whole Amount, if applicable, and other
amounts due hereunder or under each Equipment Note (and such
exclusion and withholding shall constitute payment in respect of
such Equipment Note) any and all United States withholding taxes
applicable thereto as required by Law. The Indenture Trustee agrees
to act as such withholding agent and, in connection therewith,
whenever any present or future United States taxes or similar
charges are required to be withheld with respect to any amounts
payable hereunder or in respect of the Equipment Notes, to withhold
such amounts and timely pay the same to the appropriate authority
in the name of and on behalf of the Note Holders, that it will file
any necessary United States withholding tax returns or statements
when due, and that as promptly as possible after the payment
thereof it will deliver to each Note
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[Trust Indenture and Security
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Holder (with a
copy to the Owner) appropriate receipts showing the payment
thereof, together with such additional documentary evidence as any
such Note Holder may reasonably request from time to
time.
If
a Note Holder which is a Non-U.S. Person has furnished to the
Indenture Trustee a properly completed and accurate U.S. Internal
Revenue Service Form W-8BEN, W-8EXP, W-8IMY or W-8ECI (or such
successor form or forms as may be required by the United States
Treasury Department) that is effective at the time a payment
hereunder or under the Equipment Note(s) held by such holder is
made and has not notified the Indenture Trustee of the withdrawal
or inaccuracy of such form prior to the date of such payment (and
the Indenture Trustee has no reason to believe that any information
set forth in such form is inaccurate), the Indenture Trustee shall
withhold only the amount, if any, required by law (after taking
into account any applicable exemptions properly claimed by the Note
Holder) to be withheld from payments hereunder or under the
Equipment Notes held by such holder in respect of United States
federal income tax. If a Note Holder (x) which is a Non-U.S.
Person has furnished to the Indenture Trustee a properly completed,
accurate and currently effective U.S. Internal Revenue Service Form
W-8ECI in duplicate (or such successor certificate, form or forms
as may be required by the United States Treasury Department as
necessary in order to properly avoid withholding of United States
federal income tax), for each calendar year in which a payment is
made (but prior to the making of any payment for such year), and
has not notified the Indenture Trustee of the withdrawal or
inaccuracy of such certificate or form prior to the date of such
payment (and the Indenture Trustee has no reason to believe that
any information set forth in such form is inaccurate) or
(y) which is a U.S. Person has furnished to the Indenture
Trustee a properly completed, accurate and currently effective U.S.
Internal Revenue Service Form W-9, if applicable, prior to a
payment hereunder or under the Equipment Notes held by such holder,
no amount shall be withheld from payments in respect of United
States federal income tax. If any Note Holder has notified the
Indenture Trustee that any of the foregoing forms or certificates
is withdrawn or inaccurate, or if such holder has not filed a form
claiming an exemption from United States withholding tax or if the
Code or the regulations thereunder or the administrative
interpretation thereof is at any time after the date hereof amended
to require such withholding of United States federal income taxes
from payments under the Equipment Notes held by such holder, the
Indenture Trustee agrees to withhold from each payment due to the
relevant Note Holder United States federal withholding taxes at the
appropriate rate under Law and will, on a timely basis as more
fully provided above, deposit such amounts with an authorized
depository and make such returns, statements, receipts and other
documentary evidence in connection therewith as required by
Law.
The
Owner shall not have any liability for the failure of the Indenture
Trustee to withhold United States federal taxes in the manner
provided for herein or for any false, inaccurate or untrue evidence
provided by any Note Holder hereunder.
2.04.
Application of Payments to Principal Amount and Interest .
In the case of each Equipment Note, each payment of principal
thereof and Make-Whole Amount, if any, and interest thereon shall
be applied, first , to the payment of accrued but unpaid
interest on such Equipment Note then due thereunder, second
, to the payment of the unpaid principal amount of such Equipment
Note then due thereunder, third , to the payment of any
Make-Whole Amount then due thereon and fourth , to the
payment of the remaining outstanding principal amount of
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[Trust Indenture and Security
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such Equipment
Note; provided , that the Owner may only prepay such
Equipment Note in accordance with the provisions of
Section 2.09, 3.02 and 3.03 hereof.
2.05.
Termination of Interest in Indenture Estate . A Note Holder
shall have no further interest in, or other right with respect to,
the Indenture Estate when and if the principal amount of and
interest on all Equipment Notes held by such Note Holder and all
other sums payable to such Note Holder hereunder and under such
Equipment Notes and under the Participation Agreement shall have
been paid in full.
2.06. Transfer
of Equipment Notes . The Indenture Trustee shall maintain at
its corporate trust services office in Hartford, Connecticut or in
the city in which the corporate trust office of a successor
Indenture Trustee is located, a register (the “ Equipment
Note Register ”) for the purpose of registering transfers
and exchanges of Equipment Notes. A holder of an Equipment Note
intending to transfer such Equipment Note to a new payee, or to
exchange any Equipment Note or Equipment Notes of any Series held
by it for an Equipment Note or Equipment Notes of a different
denomination or denominations, may surrender such Equipment Note or
Equipment Notes to the Indenture Trustee at such principal
corporate trust administration office of the Indenture Trustee,
together with a written request from such holder for the issuance
of a new Equipment Note or Equipment Notes of such Series,
specifying the denomination or denominations (each of which shall
be not less than $1,000,000 or a whole multiple thereof or such
smaller denomination as may be necessary due to the original
issuance of Equipment Notes of the applicable maturity in an
aggregate principal amount not evenly divisible by
$1,000,000) of the same, and, in the case of a surrender for
registration of transfer, the name and address of the transferee or
transferees. Promptly upon receipt of such documents, the Owner
will issue, and the Indenture Trustee will authenticate, a new
Equipment Note or Equipment Notes in the same aggregate principal
amount and dated the same date or dates as, with the same payment
schedule, in the form set forth in Section 2.01 in the same
maturity and bearing the same interest rate as the Equipment Note
or Equipment Notes surrendered, in such denomination or
denominations and payable to such payee or payees as shall be
specified in the written request from such holder. All Equipment
Notes issued upon any registration of transfer or exchange of
Equipment Notes shall be the valid obligations of the Owner
evidencing the same respective obligations, and entitled to the
same security and benefits under this Indenture, as the Equipment
Notes surrendered upon such registration of transfer or exchange.
The Indenture Trustee shall make a notation on each new Equipment
Note or Equipment Notes of the amount of all payments or
prepayments of principal and interest previously made on the old
Equipment Note or Equipment Notes with respect to which such new
Equipment Note or Equipment Notes is or are issued. From time to
time, the Indenture Trustee will provide the Owner with such
information as it may request as to the registered holders of
Equipment Notes. The Owner shall not be required to exchange any
surrendered Equipment Notes as above provided during the 10-day
period preceding the due date of any payment on such Equipment
Notes.
Prior to the due
presentment for registration of transfer of an Equipment Note, the
Owner and the Indenture Trustee may deem and treat the registered
holder of such Equipment Note as the absolute owner and holder of
such Equipment Note for the purpose of receiving payment of all
amounts payable with respect to such Equipment Note and for all
other purposes and shall not be affected by any notice to the
contrary.
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[Trust Indenture and Security
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The Indenture
Trustee will promptly notify the Owner of each request for a
registration of transfer of an Equipment Note. The Indenture
Trustee will promptly cancel and destroy all Equipment Notes
surrendered for transfer or exchange pursuant to this Section. Any
such transferee of an Equipment Note, by its acceptance of an
Equipment Note, (i) agrees to the provisions of this Indenture
and the Participation Agreement applicable to Note Holders,
including Sections 5.3, 7 and 9.1 of the Participation
Agreement and shall be deemed to have covenanted to the parties to
the Participation Agreement as to the matters covenanted by the
original Note Holder in the Participation Agreement and (ii)
shall be deemed to have made the representation and warranty
set forth in Section 5.3(c) of the Participation Agreement.
Subject to compliance by the Note Holder and its transferee (if
any) of the requirements set forth in this Section 2.06, the
Indenture Trustee and the Owner shall use all reasonable efforts to
issue new Equipment Notes upon transfer or exchange within ten
Business Days of the date an Equipment Note is surrendered for
transfer or exchange.
2.07.
Mutilated, Destroyed, Lost or Stolen Equipment Notes . If
any Equipment Note of any Series shall become mutilated, destroyed,
lost or stolen, the Owner shall, upon the written request of the
holder of such Equipment Note, issue, and the Indenture Trustee
shall authenticate and deliver in replacement thereof, a new
Equipment Note of such Series in the form set forth in
Section 2.01, payable to the same holder in the same principal
amount, of the same maturity, with the same payment schedule,
bearing the same interest rate and dated the same date as the
Equipment Note so mutilated, destroyed, lost or stolen. The
Indenture Trustee shall make a notation on each new Equipment Note
of the amount of all payments or prepayments of principal and
interest theretofore made on the Equipment Note so mutilated,
destroyed, lost or stolen and the date to which interest on such
old Equipment Note has been paid. If the Equipment Note being
replaced has become mutilated, such Equipment Note shall be
surrendered to the Indenture Trustee and forwarded to the Owner by
the Indenture Trustee. If the Equipment Note being replaced has
been destroyed, lost or stolen, the holder of such Equipment Note
shall furnish to the Owner and the Indenture Trustee such security
or indemnity as may be required by them to save the Owner and the
Indenture Trustee harmless and evidence satisfactory to the Owner
and the Indenture Trustee of the destruction, loss or theft of such
Equipment Note and of the ownership thereof.
2.08. Payment
of Transfer Taxes . Upon the transfer of any Equipment Note or
Equipment Notes pursuant to Section 2.06, the Owner or the
Indenture Trustee may require from the party requesting such new
Equipment Note or Equipment Notes payment of a sum to reimburse the
Owner or the Indenture Trustee for, or to provide funds for the
payment of, any tax or other governmental charge in connection
therewith.
(a) Each
Equipment Note of any Series shall be prepaid in whole or in part
by the Owner on the date on which the Owner is required to make a
payment under Section 4.06(b) in connection with the
occurrence of an Event of Loss or the deemed occurrence of an Event
of Loss with respect to any Unit or Units related to such Equipment
Note if such Unit or Units are not replaced pursuant to
Section 4.06(b)(i), at a price equal to the sum of (i) as
to principal thereof, an amount equal to the product obtained by
multiplying the aggregate unpaid principal amount of such Equipment
Note as at such prepayment date (after deducting therefrom
the
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[Trust Indenture and Security
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principal
installment, if any, due on such date) by a fraction, the
numerator of which shall be the Equipment Cost of such Unit or
Units and the denominator of which shall be the aggregate Equipment
Cost of all Units of the relevant Basic Group included in the
Indenture Estate under the related Indenture Supplement immediately
prior to such date, and (ii) as to interest, the aggregate
amount of interest accrued and unpaid in respect of the principal
amount to be prepaid pursuant to clause (i) above to but not
including the date of prepayment, but without the payment of any
Make-Whole Amount or other premium.
(b) At
any time all (but not less than all) of the Equipment Notes related
to any Basic Group may be redeemed by the Owner upon at least
30 days’ revocable prior written notice to the Indenture
Trustee, and such Equipment Notes shall be redeemed in whole at a
redemption price equal to 100% of the unpaid principal amount
thereof, together with all accrued and unpaid interest thereon to,
but not including, the date of redemption, and, in each case, all
other amounts owed or then due and payable to the Note Holders
under the Operative Agreements, plus Make-Whole Amount, if any.
Upon the payment in full of all of the Equipment Notes related to
any Basic Group and all other amounts due and payable under this
Section 2.09(b), the Equipment of such Basic Group shall be
released from the Lien of this Indenture.
2.10.
Redemptions; Notice of Redemption .
(a) No
redemption of any Equipment Note may be made except to the extent
and in the manner expressly permitted by this Indenture.
(b) Notice
of redemption with respect to the Equipment Notes shall be given by
the Indenture Trustee by first-class mail, postage prepaid, mailed
not less than 20 nor more than 60 days prior to the
applicable redemption date, to each Note Holder of the Equipment
Notes to be redeemed, at such Note Holder’s address appearing
in the Equipment Note Register; provided that, in the case of a
redemption made pursuant to Section 2.09(b), such notice shall
be revocable by written notice from the Owner to Indenture Trustee
given not later than three days prior to the redemption date. All
notices of redemption shall state: (1) the redemption date,
(2) the applicable basis for determining the redemption price,
(3) that on the redemption date, the redemption price will
become due and payable upon each such Equipment Note, and that, if
any such Equipment Notes are then outstanding, interest on such
Equipment Notes shall cease to accrue on and after such redemption
date upon payment of the redemption price, and (4) the place
or places where such Equipment Notes are to be surrendered for
payment of the redemption price.
(c) On
or before the redemption date, the Owner (or any person on behalf
of the Owner) shall, to the extent an amount equal to the
redemption price for the Equipment Notes to be redeemed on the
redemption date shall not then be held by the Indenture Trustee,
deposit or cause to be deposited with the Indenture Trustee by
12:00 p.m. Chicago, Illinois time on the redemption date in
immediately available funds the redemption price of the Equipment
Notes to be redeemed.
(d) Notice
of redemption having been given and not revoked as aforesaid, the
Equipment Notes to be redeemed shall, on the redemption date,
become due and payable at the
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[Trust Indenture and Security
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corporate trust
office of the Indenture Trustee or at any office or agency
maintained for such purposes pursuant to Section 2.06, and
from and after such redemption date (unless there shall be a
default in the payment of the redemption price) such Equipment
Notes then outstanding shall cease to bear interest. Upon surrender
of any such Equipment Note for redemption in accordance with said
notice, such Equipment Note shall be redeemed at the redemption
price. If any Equipment Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal amount of
such Equipment Note shall, until paid, continue to bear interest
from the applicable redemption date at the interest rate in effect
for such Equipment Note as of such redemption date.
2.11. Equally
and Ratably Secured . All Equipment Notes at any time
outstanding under this Indenture shall be equally and ratably
secured hereby without preference, priority or distinction on
account of the date or dates or the actual time or times of the
issue or maturity of such Equipment Notes so that all Equipment
Notes at any time issued and outstanding hereunder shall have the
same rights, Liens and preferences under and by virtue of this
Indenture.
RECEIPT, DISTRIBUTION AND
APPLICATION OF
INCOME FROM THE INDENTURE ESTATE
3.01. Basic
Distribution . Except as otherwise provided in
Section 3.02 and 3.03, each periodic payment of principal or
interest on the Equipment Notes received by the Indenture Trustee
shall be promptly distributed to the holders of the Equipment Notes
to pay in full the aggregate amount of the payment or payments of
principal and interest (as well as any interest on overdue
principal or interest) then due, such distribution to be made
ratably, without priority of one over the other, in the proportion
that the amount of such payment or payments then due with respect
to each such Equipment Note bears to the aggregate amount of
payments then due under all such Equipment Notes. The portion of
each such installment distributed to a holder of an Equipment Note
shall be applied by such holder in payment of such Equipment Note
in accordance with the terms of Section 2.04.
3.02. Payments
in the Event of Prepayment . (a) Except as otherwise
provided in Section 3.03, in the event of any prepayment of an
Equipment Note or Notes, in whole or in part, in accordance with
the provisions of Section 2.09 any amount received shall in
each case be distributed and paid in the following order of
priority: first , to the holders of such Equipment Note or
Notes to pay the aggregate amount of the payment of principal,
Make-Whole Amount, if any, and interest to be prepaid on such
Equipment Note or Notes pursuant to Section 2.09, such
prepayment to be made ratably to such Equipment Note or Notes to
which such prepayment relates, without priority of one over any
other, in the proportion that the amount to be prepaid on each such
Equipment Note bears to the aggregate amount to be paid on all such
Equipment Notes; and second , the balance, if any, of such
amount remaining thereafter shall be distributed pursuant to
Section 3.03 hereof.
(b) Except
as otherwise provided in Section 3.03 hereof, any amounts
received directly or through the Owner from any governmental
authority or other party pursuant to Section 4.06 with respect
to any Unit as the result of an Event of Loss, to the extent that
such
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[Trust Indenture and Security
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amounts are not
at the time required to be paid to the Owner pursuant to said
Section 4.06, and any amounts of insurance proceeds for damage
to the Indenture Estate received directly or through the Owner from
any insurer pursuant to Section 4.08 with respect thereto as
the result of an Event of Loss, to the extent such amounts are not
at the time required to be paid to the Owner pursuant to said
Section 4.08, shall be applied as provided in
clause (a) of this Section 3.02 provided ,
however , that if a Replacement Unit or Units shall be
substituted for the Unit or Units subject to such Event of Loss as
provided in Section 4.06 hereof, any insurance, condemnation
or similar proceeds which result from such Event of Loss and are
paid over to the Indenture Trustee shall be held by the Indenture
Trustee as permitted by Section 7.04 hereof (provided that
such moneys shall be invested as provided in Section 7.04(b)
hereof) as additional security for the obligations of Owner under
Operative Agreements and such proceeds (and such investment
earnings), to the extent not theretofore applied as provided
herein, shall be released to the Owner at the Owner’s written
request upon the release of such Unit or Units and the replacement
thereof as provided herein. No Make-Whole Amount shall be due and
payable on the Equipment Notes as a consequence of the redemption
of the Equipment Notes as a result of an Event of Loss with respect
to any Unit.
3.03. Payments
after Event of Default . Except as provided in
Section 3.04 hereof, all payments received and amounts
realized by the Indenture Trustee after an Event of Default shall
have occurred and be continuing and after the Indenture Trustee has
declared the Equipment Notes to be accelerated pursuant to
Section 5.02 (or the Equipment Notes shall have otherwise
become immediately due and payable as provided therein) or has
elected to foreclose or otherwise exercise any remedies under this
Indenture (including any amounts realized by the Indenture Trustee
from the exercise of any remedies pursuant to Article V), as
well as all payments or amounts then held or thereafter received by
the Indenture Trustee as part of the Indenture Estate while such
Event of Default shall be continuing, shall be distributed
forthwith by the Indenture Trustee in the following order of
priority:
First , so
much of such payments or amounts as shall be required to reimburse
the Indenture Trustee for any fees which are due and payable for
its services under this Indenture and any tax, expense (including
reasonable attorney’s fees) or other loss incurred by
the Indenture Trustee (to the extent reimbursable and not
previously reimbursed and to the extent incurred in connection with
its duties as Indenture Trustee) shall be distributed to the
Indenture Trustee;
Second, so
much of such payments or amounts as shall be required to reimburse
the holders of the Equipment Notes for payments made by them to the
Indenture Trustee pursuant to Section 6.03 (to the extent not
previously reimbursed), and to pay such holders of the Equipment
Notes the amounts payable to them pursuant to the provisions of the
Participation Agreement or this Indenture (other than the sums
referred to in clause Third below), shall be distributed to such
holders of the Equipment Notes, without priority of one over the
other, in accordance with the amount of the payment or payments
made by, or payable to, each such holder;
Third , so
much of such payments or amounts remaining as shall be required to
pay the principal of, and Make-Whole Amount, if any, and accrued
interest (to the date of distribution) on all Equipment Notes,
payable to the Note Holders, then due and payable,
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[Trust Indenture and Security
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whether by
declaration of acceleration pursuant to Section 5.02 or
otherwise, and in case the aggregate amount so to be distributed
shall be insufficient to pay in full the aforesaid amounts, then,
ratably, without priority of one over the other, in the proportion
that the aggregate unpaid principal amount of all Equipment Notes
held by each such Note Holders, plus the accrued but unpaid
interest thereon to the date of distribution, bears to the
aggregate unpaid principal amount of all Equipment Notes, plus the
accrued but unpaid interest thereon to the date of distribution;
and
Fourth,
the balance, if any, of such payments or amounts remaining
thereafter shall be distributed to the Owner free and clear of the
Lien of this Indenture.
No Make-Whole
Amount shall be due and payable on the Equipment Notes as a
consequence of the acceleration of the Equipment Notes as a result
of an Event of Default.
3.04. Other
Payments . Except as otherwise provided in Section 3.03,
(a) any payments received by the Indenture Trustee for which
no provision as to the application thereof is made in the
Participation Agreement or elsewhere in this Article III, and
(b) all payments received and amounts realized by the
Indenture Trustee with respect to the Equipment to the extent
received or realized at any time after payment in full of the
principal of and interest and Make-Whole Amount, if any, on all
Equipment Notes, as well as any other amounts remaining as part of
the Indenture Estate after payment in full of the principal of and
interest and Make-Whole Amount, if any, shall be distributed
forthwith by the Indenture Trustee in the order of priority set
forth in Section 3.03, except that in the case of any payment
described in clause (b) above, such payment shall be
distributed omitting clause “ third ” of such
Section 3.03 on all Equipment Notes issued
hereunder.
Any payments
received by the Indenture Trustee for which provision as to the
application thereof is made in the Participation Agreement but not
elsewhere in this Indenture shall be applied to the purposes for
which such payments were made in accordance with the provisions of
the Participation Agreement, as the case may be.
3.05. Payments
to the Owner . Any amounts to be distributed hereunder by the
Indenture Trustee to the Owner shall be paid to the Owner (within
the time limits contemplated by Section 2.03) by wire transfer
of funds of the type received by the Indenture Trustee at such
office and to such account or accounts of such entity or entities
as shall be designated by notice from the Owner to the Indenture
Trustee from time to time.
4.01. Marking
of Equipment .
(a)
Duty to Number and Mark Equipment . The Owner will, on or
prior to the Closing Date, cause, and as soon as practicable after
the date on which an Indenture Supplement is executed and delivered
in respect of a Replacement Unit pursuant to Section 4.06(b),
the Owner will cause, each Unit to be numbered with a reporting
mark shown on the Indenture Supplement dated the date on which such
Unit was delivered and covering such Unit, and will
16
[Trust Indenture and Security
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from and after
such date keep and maintain, plainly, distinctly, permanently and
conspicuously marked by a plate or stencil printed in contrasting
colors upon each side of each Unit, in letters not less than one
inch in height, a legend substantially as follows:
“OWNERSHIP
SUBJECT TO A SECURITY AGREEMENT FILED WITH THE SURFACE
TRANSPORTATION BOARD”
with
appropriate changes thereof and additions thereto as from time to
time may be required by law in order to protect the rights of the
Indenture Trustee. Except as provided hereinabove, the Owner will
not place any such Units in operation or exercise any control or
dominion over the same until the required legend shall have been so
marked on both sides thereof, and will replace promptly any such
word or words in such legend which may be removed, defaced,
obliterated or destroyed. The Owner will not change the reporting
mark of any Unit except in accordance with a statement of new
reporting marks to be substituted therefor, which statement shall
be delivered by the Owner to the Indenture Trustee prior to or
contemporaneously with such change. A supplement to this Indenture,
with respect to such new reporting marks, shall, prior to or
contemporaneously with the substitution of such reporting marks, be
filed or recorded in all public offices where this Indenture shall
have been filed or recorded. The costs and expenses of all such
supplements, filings and recordings shall be borne by the
Owner.
4.02.
Prohibition Against Certain Designations . Except as above
provided, the Owner will not allow the name of any Person to be
placed on any Unit as a designation that might reasonably be
interpreted as a claim of ownership; provided ,
however , that subject to the delivery of the statement of
new reporting marks specified in Section 4.01, the Owner may
cause the Equipment to be lettered with the names or initials or
other insignia customarily used by the Owner or any lessee under a
Permitted Lease or any of their respective Affiliates on railroad
equipment used by it of the same or a similar type for convenience
of identification of the right of the Owner to use the Equipment
hereunder or any permitted lessee to use the Equipment pursuant to
a lease permitted hereby.
4.03. Liens
. The Owner will not directly or indirectly create, incur, assume,
permit or suffer to exist any Lien on or with respect to any Unit,
title thereto or the Owner’s interest therein, except
Permitted Liens and Liens described in
Sections 5.1(a) and 5.1(b) of the Participation
Agreement. The Owner shall promptly, at its own expense, take such
action or cause such action to be taken as may be necessary to duly
discharge (by bonding or otherwise) any such Lien not excepted
above if the same shall arise at any time.
4.04.
Maintenance; Possession; Compliance with Laws .
(a)
Maintenance and Operation . The Owner, at its own cost and
expense, shall maintain, repair and keep each Unit,
(i) according to prudent industry practice, in good working
order, and in good physical condition for railcars of a similar age
and usage, normal wear and tear excepted, (ii) in a manner
consistent with maintenance practices used by the Owner in respect
of equipment owned or leased by the Owner similar in type to such
Unit, (iii) in accordance in all material respects with all
manufacturer’s warranties in effect and in accordance with
all applicable provisions, if any, of insurance policies required
to be maintained pursuant to Section 4.07, (iv) in
compliance in all material respects with any applicable laws
and
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[Trust Indenture and Security
Agreement (GATX Trust No. 2008-2)]
regulations,
including, without limitation, the Field Manual of the AAR, FRA
rules and regulations and Interchange Rules as they apply to the
maintenance and operation of the Equipment in interchange
regardless of upon whom such applicable laws and regulations are
nominally imposed and (v) in a condition mechanically suitable
for interchange by an operator in revenue service; provided
, however , that the Owner may, in good faith and by
appropriate proceedings diligently conducted, contest the validity
or application of any such standard, rule or regulation in any
reasonable manner which does not materially interfere with the use,
possession or operation of any of the Units or materially adversely
affect the rights or interests of the Indenture Trustee in the
Equipment or hereunder or otherwise expose the Indenture Trustee or
the Loan Participant to criminal sanctions. In no event shall the
Owner discriminate as to the use or maintenance of any Unit
(including the periodicity of maintenance or record keeping in
respect of such Unit) as compared to equipment of a similar
nature which the Owner owns or leases. The Owner will maintain all
records, logs and other materials required by relevant industry
standards or any governmental authority having jurisdiction over
the Units required to be maintained in respect of any
Unit.
(b)
Possession . The Owner shall be entitled to the possession
of the Equipment and to the use of the Equipment by it or any
Affiliate, in the United States and, subject to the remaining
provisions of this Section 4.04(b) and Section 4.04(c),
Canada and Mexico, only in the manner for which it was designed and
intended and so as to subject it only to ordinary wear and tear. In
no event shall the Owner make use of any Equipment in any
jurisdiction not included in the insurance coverage required by
Section 4.07. Notwithstanding the foregoing, no more than 20%
of the Units shall at any time be used or located in Mexico so long
as Mexican law does not afford rights, remedies and protections to
the Indenture Trustee comparable to U.S. law and unless the Owner
shall first have taken all actions necessary so as to protect the
interest of the Indenture Trustee in the Equipment in Mexico and
shall have furnished the Indenture Trustee with an opinion of
Mexican counsel, such counsel and opinion to be reasonably
satisfactory to such parties, to the effect that all such filings
and recordings of the related Operative Agreements have been taken
and effected under Mexican law.
(c)
Lease . The Owner shall be entitled, without the prior
approval of the Indenture Trustee, to enter into a lease for any
Unit or Units (pursuant to a car service contract or
otherwise) to, or to grant permission for the use thereof
under car contracts by, (i) a railroad company or companies
incorporated 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 (subject in all cases to
Section 4.04(b)), upon lines of railroad owned or operated by
such railroad company or companies or over which such railroad
company or companies have trackage rights or rights for operation
of their trains, and upon connecting and other carriers in the
usual interchange of traffic or (ii) responsible companies
(i.e., a company with which the Owner would do business in the
ordinary course of the Owner’s business with respect to
railcars which it owns, leases or manages) other than railroad
companies for use in their business (leases to such lessees
described in (i) and (ii) being herein referred to as
“ Permitted Leases ”). All Permitted Leases
shall include appropriate provisions so that such leases
(i) either (A) shall in all events be expressly subject
and subordinate to this Indenture and the rights and interests of
Indenture Trustee and its respective successors and assigns
hereunder or (B) shall be assigned to the Indenture Trustee,
and its successors and assigns, as security for the Owner’s
obligations under the Owner Agreements, shall not contain purchase
options binding on the Owner without
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[Trust Indenture and Security
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action or
consent by the Indenture Trustee, shall have been entered into on
an arm’s-length basis and shall, on the date entered into, be
on commercially reasonable terms and the Indenture Trustee and its
successors and assigns agree to deliver a non-disturbance agreement
to the relevant lessee, (ii) if such Permitted Lease is not
expressly subject and subordinate to this Indenture, such Permitted
Lease shall not be for a term which extends beyond the Final
Maturity Date and (iii) contain inspection rights in favor of
the Owner and its designees. In the event the Owner desires to
lease one or more Units under a non-subject and subordinated
Permitted Lease for a term which extends beyond the Final Maturity
Date, the Owner will have the option to replace such Unit with
another unit in accordance with and subject to the provisions of
Section 4.06(b) and 4.06(c). No Permitted Lease entered into
by the Owner hereunder shall relieve the Owner of any liability or
obligation hereunder, which shall be and remain those of a
principal and not a surety. Nothing in this Section 4.04(c)
shall be deemed to constitute permission to any Person in
possession of any Unit pursuant to any such lease to take any
action inconsistent with the terms and provisions of this Indenture
or any of the other Operative Agreements. All reasonable costs and
expenses of the Indenture Trustee (including, without limitation,
reasonable legal fees, costs and expenses of special counsel)
incurred in connection with any lease pursuant to this
Section 4.04(c) shall be paid by the Owner.
(d)
Replacement for Valid Business Reasons . The Owner shall be
entitled at any time (but not more than twice in any calendar
year), provided no Material Default or Event of Default shall have
occurred and be continuing, without the prior approval of the
Indenture Trustee, when for valid business reasons arising in the
ordinary course of business (including without limitation
responding to customer requests, meeting subordination or
assignment requirements, controlling foreign use and avoiding
defaults), to replace any Unit or Units with another unit or units
of either (x) the same car type or (y) other car types as
may be approved by the Indenture Trustee (such approval not to be
unreasonably withheld), in accordance with the provisions hereof
and of Section 4.06(b)(i) and 4.06(c) by delivering to the
Indenture Trustee, not less than 15 days prior to such
replacement, a written notice stating that the Owner has exercised
its option hereunder and advising the Indenture Trustee of the date
on which the Unit to be replaced will be so replaced and
appropriately identifying the Unit to be replaced and the
Replacement Unit or Replacement Units. Such notice shall be
accompanied by an Officer’s Certificate stating that such
replacement is required for valid business reasons arising in the
ordinary course of the Owner’s business and briefly setting
forth the reasons therefor. On the date specified for replacement
in the notice delivered by the Owner in connection therewith, the
Owner shall make each Replacement Unit subject to the Lien of this
Indenture, the Indenture Trustee shall release the replaced Unit
from the Lien of this Indenture and the Indenture Trustee and the
Owner shall deliver to each other such documents and other
instruments as are required by Section 4.06(c).
(a)
Required Modifications . In the event the AAR, the United
States Department of Transportation, or any other United States or
state governmental agency or any other applicable law requires that
any Unit be altered, replaced or modified whether such requirement
is imposed on the owner or for use in the ordinary course by an
operator in accordance with the terms hereof (a “ Required
Modification ”), the Owner agrees to make such Required
Modification at its own expense; provided , however ,
that the Owner may, in good faith
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[Trust Indenture and Security
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and by
appropriate proceedings diligently conducted, contest the validity
or application of any such law, regulation, requirement or rule in
any reasonable manner which does not materially interfere with the
use, possession, operation or return of any Unit or materially
adversely affect the rights or interests of the Indenture Trustee
in the Equipment or hereunder or otherwise expose the Indenture
Trustee or the Loan Participant to criminal sanctions.
Notwithstanding anything herein to the contrary, if the Owner
determines in good faith that any Required Modification to a Unit
would be economically impractical, in lieu of making the Required
Modification as provided above, the Owner may provide written
notice of such determination to the Indenture Trustee and treat
such Unit as if an Event of Loss had occurred as of the date of
such written notice with respect to such Unit and in such event the
provisions of Sections 4.06(b) and 4.06(c) shall apply with
respect to such Unit; provided that the Owner shall not
discriminate against such Unit in making such determination of
economic impracticality as compared with other equipment of the
same type as such Unit which is owned or leased by the
Owner.
(b)
Optional Modifications . The Owner at any time may in its
discretion and at its own cost and expense modify, alter or improve
any Unit in a manner which is not required by Section 4.05(a)
(a “ Modification ”); provided that no
Modification shall diminish the fair market value, utility or
remaining economic useful life of such Unit below the fair market
value, utility, or remaining economic useful life thereof
immediately prior to such Modification, in any non de minimis
respect, assuming such Unit was then in the condition required to
be maintained by the terms of this Indenture, provided that
the Owner shall not discriminate against such Unit in making such
modification, alteration or improvement as compared with other
equipment of the same type as the Unit and which are owned or
leased by the Owner. If the Owner shall at its cost cause any
Severable Modifications to be made to any Unit, the Owner may, at
any time, remove such Severable Modifications at its cost and
expense and the Owner shall, at its expense, repair any damage
resulting from the removal of any such Severable Modifications in a
manner consistent with Section 4.04(a).
(c)
Additions Subject to Indenture . All parts incorporated or
installed in or attached or added to the Equipment pursuant to
Section 4.05(a) and all Non-Severable Modifications made
pursuant to Section 4.05(b) shall, without further act, become
subject to the Lien of this Indenture.
(d)
Removal of Property; Replacements . The Owner may, in the
ordinary course of maintenance or repair of any Unit, remove any
item of property constituting a part of such Unit, and unless the
removal of such item is required by Section 4.05(a) hereof,
the Owner shall replace such item as promptly as practicable by an
item of property that is free and clear of all Liens (other than
Permitted Liens) and in as good operating condition as, and with a
fair market value, utility and remaining economic useful life at
least equal to, the item of property being replaced, assuming that
such replaced item was in the condition required to be maintained
by the terms of this Indenture. All items at any time removed from
such Unit in the ordinary course of maintenance and repair as
provided in the preceding sentence shall remain subject to the Lien
of this Indenture, no matter where located, until such time as such
items shall be replaced in accordance with the terms specified
above. Upon any replacement item of property becoming incorporated
or installed in or attached to any Unit, without further act,
(i) such replacement part shall become subject to the Lien of
this Indenture and (ii) the replaced item of property shall no
longer be subject to the Lien of this Indenture. Upon request of
the Owner, the
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[Trust Indenture and Security
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Indenture
Trustee shall, at the Owner’s expense, execute and deliver to
the Owner such documents as may be reasonably required to evidence
the release of any replaced item of property from the Lien of this
Indenture.
4.06. Loss,
Destruction, Requisition, Etc.
(a)
Event of Loss . In the event that (a) any Unit
(i) shall suffer damage or contamination which, in the
Owner’s reasonable judgment (as evidenced by an
Officers’ Certificate to such effect), makes repair
uneconomic or renders such Unit unfit for commercial use,
(ii) shall suffer destruction, or shall suffer theft or
disappearance (after reasonable efforts by the Owner to locate the
same) for a period exceeding 12 months, (iii) shall be
permanently returned to the manufacturer pursuant to any patent
indemnity provisions, (iv) shall have title thereto taken or
appropriated by any governmental authority, agency or
instrumentality under the power of eminent domain or otherwise, or
(v) shall be taken or requisitioned for use by any
governmental authority or any agency or instrumentality thereof
other than of the United States or Canada under the power of
eminent domain or otherwise for a period in excess of 365 days
or (b) the Owner makes the determination set forth in
Section 4.05(a) (any such occurrence being hereinafter called
an “ Event of Loss ”), the Owner, in accordance
with the terms of Section 4.06(b), shall promptly and fully
inform the Indenture Trustee of such Event of Loss.
(b)
Replacement or Payment upon Event of Loss . Upon the
occurrence of (x) an Event of Loss or the deemed occurrence of
an Event of Loss pursuant to Section 4.06(a) or (y) an
election to replace pursuant to Section 4.04(c) or 4.04(d),
with respect to any Unit, the Owner shall as soon as reasonably
practical and in any event within 60 days after a Responsible
Officer of the Owner shall have actual knowledge of such occurrence
or election give the Indenture Trustee notice of such occurrence of
such Event of Loss or election to replace (which notice shall
identify the Unit involved) and then within the 60-day period
following such notice give the Indenture Trustee notice as to which
of the following options the Owner shall elect to perform (it being
agreed that if the Owner shall fail to give notice of such
election, the Owner shall be deemed to have elected to perform the
option set forth in Section 4.06(b)(ii)):
(i)
Upon the Owner’s election to perform under this
clause (i), as promptly as practicable following such
election, and in any event on or before the 90th day following the
date of notice of such Event of Loss or deemed Event of Loss
pursuant to Section 4.06(a), or the date the Owner exercises
an option to replace pursuant to Section 4.04(c) or 4.04(d),
as the case may be, the Owner shall comply with
Section 4.06(c) and shall replace such Unit with a Replacement
Unit of the same car type of the same or newer model year (or
otherwise approved by Indenture Trustee, which approval shall not
be unreasonably withheld), and free and clear of all Liens (other
than Permitted Liens) and to have a fair market value, utility,
remaining economic useful life and condition at least equal to the
Unit so replaced (assuming such Unit was in the condition required
to be maintained by the terms of this Indenture); provided
that, if, at the time of such replacement, only railcars
(x) of a newer model year or (y) with a greater fair
market value than the replaced Units are available as Replacement
Units, the Owner shall make such Replacement Unit subject to the
Lien of this Indenture but the Owner may, at a later date, replace
such Replacement Units with other Units that are closer in fair
market value to the original replaced Units; provided
further that, if the Owner shall
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