“Class B Minimum Adjustment\nFraction” means, for any Class B Notes within a Series and as of any Payment Date, a fraction equal to one minus the sum of the Class B Payment Date Minimum Disposition Fractions for such Payment Date and for all preceding Payment\nDates on which such Class B Notes within such Series was outstanding, provided that the Class B Minimum Adjustment Fraction shall not be less than zero.
“Class B Payment Date Minimum Disposition Fraction” means for any Payment Date, a fraction,\nthe numerator of which is Applicable Class Railcar Advance Rate as of such Payment Date times the Adjusted Value of the applicable Railcar as to which a Railcar disposition occurred, the proceeds of which were included in the Available\nCollections Amount on that Payment Date, and the denominator of which is the sum of the Minimum Targeted Principal Balances for all such Class B Notes within such Series on such Payment Date, as adjusted for any Optional Redemption pursuant to\nSection 3.18(b), but without giving effect to any adjustment to such Minimum Targeted Principal Balances pursuant to Section 3.18(a) hereof.
“Class B Scheduled Adjustment\nFraction” means, for any Class B Notes within a Series and as of any Payment Date, a fraction equal to one minus the sum of the Class B Payment Date Scheduled Disposition Fractions for such Payment Date and for all preceding\nPayment Dates on which such Class B Notes within such Series was outstanding, provided that the Class B Scheduled Adjustment Fraction shall not be less than zero.
\n
A-8\n
\n\n\n\n
\n\n
“Clearing Agency Participant” means a Person who has an account with\nClearstream.
“Clearstream” means Clearstream Banking, a French société anonyme.
\n“Closing Date” means in the case of (i) the Initial Equipment Notes, the Initial Closing Date, (ii) any\nAdditional Notes, the relevant Series Issuance Date of such Equipment Notes.
“Code” means the Internal\nRevenue Code of 1986, as amended.
“Collateral” has the meaning given such term in the Granting Clause\nhereof.
“Collateral Liquidation Notice” means a written notice delivered by all of the Specified\nSeries Enhancers (other than Defaulting Series Enhancers) or, if no Series Enhancement consisting of a Policy is in effect (other than Policies in respect of which a Policy Provider Default has occurred and is continuing), then a\nwritten notice delivered by Control Parties representing more that 50% of the Outstanding Principal Balance of the Senior Class, in each case directing the Indenture Trustee to sell the Portfolio Railcars in accordance with Section 4.02(b).\n
“Collection Period” means, with respect to each Payment Date other than the first Payment Date, the period\ncommencing 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\ncommencing on the Series Issuance Date and ending on the last day of the first full calendar month following such Series Issuance Date.
“Collections Account” has the meaning given to such term in Section 3.01(a) hereof.
\n“Company Inspection” has the meaning given to such term in Section 5.04(bb)(i) hereof.
\n
A-9\n
\n\n\n\n
\n\n
“Comparable Policy” means a Series Enhancement with respect to an\nAdditional Series (or Class thereof) constituting a financial guaranty insurance policy, with enhancement provided in a manner substantially similar to that provided to the Series 2006-1A Notes by the Series 2006-1 Policy including as to\nthe payment of principal only on the Final Maturity Date.
“Concentration Limits” means, collectively the\nMexico Concentration Restriction, the Customer Concentration Limitation, the Railcar Type Concentration Limits and the Additional Concentration Limits (if any).
“Credit Bankrupt” means a Person which (i) is subject to any bankruptcy or insolvency proceeding, (ii) is not\npaying its debts generally as they become due or (iii) has had a custodian (as defined in the Bankruptcy Code) take charge of all or substantially all of the property of such Person.
\n“Customer Concentration Limitation” means (a) that, as of any date of determination, the Adjusted Value of\nPortfolio 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\ndate 15% of the aggregate Adjusted Value of the Portfolio Railcars on such date, and (b) that, as of any date of determination, the Adjusted Value of Portfolio Railcars leased to an individual Lessee (or leased to an Affiliate thereof),\nregardless of rating, in the aggregate, does not exceed on such date 10% of the aggregate Adjusted Value of the Portfolio Railcars on such date.
A-10\n
\n\n\n\n
\n\n
“Debt Service Coverage Ratio” of the Issuer means, with respect to any\nPayment Date, the ratio of (i) the sum of the Collections deposited into the Collections Account for each of the six consecutive Collection Periods (after the initial Collection Period hereunder) ending on the last day of the calendar month\nimmediately preceding such Payment Date, minus the sum of (x) the amount actually deposited into the Expense Account during the six preceding Collection Periods and (y) the Service Provider Fees, for each of such six consecutive\nCollection Periods, to (ii) the sum of the (A) 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\nPrincipal Balance of the Equipment Notes on such Payment Date to an amount equal to the aggregate of the Scheduled Targeted Principal Balances applicable to the Equipment Notes for such Payment Date, and (B) the aggregate amount of interest on\nthe Equipment Notes payable on the six consecutive Payment Dates ending on and including such Payment Date.
\n“Default” means a condition, event or act which, with the giving of notice or the lapse of time or both, would\nconstitute an Event of Default.
“Defaulting Series Enhancer” means any Specified Series Enhancer\nthat has issued a Policy with respect to which a Policy Provider Default shall have occurred and be continuing.
\n“Default Notice” has the meaning given to such term in Section 4.02(a) hereof.
\n“Definitive Note” means a note issued in definitive form pursuant to the terms and conditions of this Master Indenture\nand the related Series Supplement, the form of which shall be substantially in the form of the applicable Note Form for such Equipment Note, with the legends required by Section 2.02 for a Definitive Note inscribed thereon and with such\nchanges therein and such additional information as may be specified in the Series Supplement pursuant to which such Equipment Note is issued.
“Direction” has the meaning given to such term in Section 1.04(c) hereof.
\n“Disposition Proceeds” means, with respect to any Railcar Disposition, an amount equal to the Net Disposition Proceeds\nrealized therefrom.
\n
A-11\n
\n\n\n\n
\n\n
“Dollars” or “$” means the lawful currency of the United\nStates of America.
“DTC” means The Depository Trust Company, a limited purpose trust company organized under\nthe New York Banking Law, its nominees and their successors.
“DTC Participants” means Euroclear, Clearstream\nor other Persons who have accounts with DTC.
“Early Amortization Event” means, as of any Payment Date, the\nexistence of any one or more of the following events or conditions, unless the occurrence of such event or condition is waived by a Requisite Majority:
(b) the Issuer’s Debt Service\nCoverage Ratio is less than 1.05 to 1.00, provided that such Early Amortization Event shall terminate on the next upcoming Payment Date as of which the Issuer’s Debt Service Coverage Ratio at least equals 1.05 to 1.00; and
\n(c) as of any Payment Date that occurs on or after the ninth Payment Date following the date of issuance of the most recently issued\nSeries, the Outstanding Principal Balance of all Equipment Notes exceeds the product of (i) the Adjusted Value of the Portfolio Railcars (plus any amounts then on deposit in the Optional Reinvestment Account or the Mandatory Replacement\nAccount), and (ii) the ratio (expressed as a percentage) of (x) the sum of the initial aggregate principal amount of the Initial Equipment Notes and the initial aggregate principal amount of all Equipment Notes issued on each other Closing\nDate subsequent to the Initial Closing Date to (y) the sum of the Initial Appraised Values of all Portfolio Railcars then owned by Issuer.
“Eligible Policy Provider” means\na nationally recognized provider of financial guaranty insurance policies that has a financial strength rating from (x) S&P of not less than AAA and (y) Moodys of not less than Aaa.
\n“Eligible Railcar” means any Railcar that, on its applicable Delivery Date, is ready and available to operate as of such\ndate in commercial service and otherwise perform the functions for which it was designed.
\n
A-12\n
\n\n\n\n
\n\n
“Encumbrance” means any mortgage, pledge, lien, encumbrance, charge or\nsecurity interest, including, without limitation, any conditional sale, any sale without recourse against the sellers, or any agreement to give any security interest over or with respect to any assets of any applicable Person.
\n“Enhancement Agreement” means, any agreement, instrument or document governing the terms of any Series Enhancement\nor pursuant to which any Series Enhancement is issued or outstanding, including with respect to the Policy Provider for the Series 2006-1A Notes, the related Policy Provider Documents.
\n“Enhancement Premium” means the amounts specified as such with respect to a Series Enhancement in the applicable\nSeries Supplement. When used in the Flow of Funds, references to the “applicable” Enhancement Premium mean the Enhancement Premium specified in the related Series Supplement to be payable at that corresponding priority level in the\nFlow of Funds.
“Enhancement Prepayment Premium” means the amounts specified as such with respect to a Series\nEnhancement in the applicable Series Supplement.
“Enhancement Step Up Premium Amount” means the amounts\nspecified as such with respect to a Series Enhancement in the applicable Series Supplement.
“Equipment\nNote” means any one of the promissory notes executed by Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Series Supplement.
\n“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
\n“Euroclear” means Euroclear Bank S.N./N.V., as operator of the Euroclear System.
\n“Event of Default” means the existence of any of the events or conditions described in Section 4.01 hereof.\n
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
\n“Exchange Date” means the date on which interests in each Regulation S Temporary Book-Entry\nNote will be exchangeable for interests in an Unrestricted Book-Entry Note, which shall be the later of (i) the fortieth (40
“Existing Lessee” means those Lessees under Existing Leases.
\n“Expense Account” has the meaning given to such term in Section 3.01(a) hereof.
\n
A-13\n
\n\n\n\n
\n\n
“Final Maturity Date” means, with respect to a Series (or Class thereof),\nthe date set forth in the related Series Supplement on or prior to which the Outstanding Principal Balance of, and accrued interest on, all Equipment Notes of such Series or Class, as applicable, are required to have been repaid in full.\n
“Final Principal Payment Shortfall” has the meaning given to such term in Section 3.12(d)(vi) hereof.\n
“Fitch” means Fitch, Inc., and any successor thereto, or, if such corporation or its successor shall for any\nreason no longer perform the functions of a securities rating agency, “Fitch” shall be deemed to refer to any other nationally recognized rating agency designated by Issuer.
\n“Fixed Rate Equipment Note” means any Equipment Note having a Stated Rate that is a fixed percentage.
\n“Floating Rate Equipment Note” means any Equipment Note having a Stated Rate that varies with a specified index, such as\nLIBOR.
“Flow of Funds” means the provisions of the Master Indenture applicable to the allocation and\ndistribution of the Available Collections Amount set forth in Sections 3.13(a), (b) or (c) hereof, as applicable.
“Form of Net Lease” means the form of master railcar lease agreement attached as Exhibit I to the Master Indenture.\n
“FRA” means the Federal Railroad Administration or any successor thereto.
\n“Full Service Leases” means Leases pursuant to which the Lessor thereunder is responsible for maintenance and repair of\nthe Portfolio Railcars that are subject thereto.
“Future Lease” means, in respect of any Railcar, a Lease of\nsuch Railcar entered into by the Issuer at any time after the Delivery Date for such Railcar.
“General\nIntangibles” (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,\nall 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\ncharacterized 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\nassociated 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\nrights 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.
\n
A-14\n
\n\n\n\n
\n\n
“General Partner” means TILX GP V, LLC, a Delaware limited liability\ncompany, as sole general partner of the Issuer.
“Governmental Actions” means any and all consents,\napprovals, permits, orders, authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations, declarations or filings with, any Governmental Authority required under any Applicable Law.
\n“Governmental Authority” shall mean any government, legislative body, regulatory authority, court, administrative agency\nor commission or other governmental agency or instrumentality (or any officer or representative thereof), domestic, foreign or international, of competent jurisdiction, including the European Union.
\n“Grantor” has the meaning set forth in the preamble.
\n“Hazardous Substances” means any hazardous or toxic substances, materials or wastes, including, but not limited to,\nthose substances, materials, and wastes listed in the United States Department of Transportation Hazardous Materials Table (49 CFR § 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR § 302.4), or such\nsubstances, materials and wastes which are or become regulated under any applicable local, state or federal law or the equivalent under applicable foreign laws including, without limitation, any materials, waste or substance which is\n(a) petroleum, (b) asbestos, (c) polychlorinated biphenyls, (d) defined as a “hazardous material,” “hazardous substance” or “hazardous waste” under applicable local, state or federal law or the\nequivalent under applicable foreign laws, (e) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act of 1977, (f) defined as “hazardous waste” pursuant to Section 1004 of the\nResource Conservation and Recovery Act of 1976 or (g) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
\n“Indebtedness” means, with respect to any Person at any date of determination (without duplication), (i) all\nindebtedness 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\ninstruments (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\nof 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\nsuch 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\n(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, and (vii) all Indebtedness (as defined in clauses\n(i) through (v) of this paragraph) of other Persons guaranteed by such Person.
\n
A-15\n
\n\n\n\n
\n\n
“Indemnified Expenses” has the meaning assigned thereto in Section 5\nof the Administrative Services Agreement.
“Indenture Account” means each of the Collections Account, the\nExpense Account, the Mandatory Replacement Account, the Optional Reinvestment Account, each Series Account (including Class Accounts within the Series Accounts), the Class A Liquidity Reserve Account, the Class B Liquidity\nReserve Account, the Class B Special Reserve Account, any Redemption/Defeasance Account and any sub-accounts and ledger and sub-ledger accounts maintained therein in accordance with this Master Indenture.
\n“Indenture Investment” means any obligation issued or guaranteed by the United States of America or any of its agencies\nfor 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\nPayment Date occurring after the date of purchase thereof.
“Indenture Trustee” has the meaning given to such\nterm in the preamble hereof, and any successor indenture trustee appointed in accordance with the terms hereof.
\n“Indenture Trustee Fees” means the compensation and expenses (including attorneys fees and expenses and indemnification\npayments) payable to the Indenture Trustee for its services under this Master Indenture and the other Related Documents to which it is a party.
“Initial Closing Date” means May 24, 2006.
\n“Initial Equipment Notes” means the Equipment Notes of the Issuer designated “Series 2006-1” issued on\nthe Initial Closing Date.
“Initial Purchaser” has the meaning given such term in the applicable\nSeries Supplement.
\n
A-16\n
\n\n\n\n
\n\n
“Initial Railcar” means each of the Portfolio Railcars identified on\nSchedule 4 hereto that has been, or will be, acquired by Issuer on the Initial Closing Date pursuant to the Asset Transfer Agreement.
“Instruments” means all “instruments” as defined in\nArticle 9 of the UCC.
“Insurance Agreement” means the Insurance Agreement, dated as of May 24,\n2006, between the Issuer and TILC.
“Insurance Manager” has the meaning assigned thereto in the Insurance\nAgreement.
“Insurance Manager Default” has the meaning assigned thereto in Section 6.2 of the Insurance\nAgreement.
“Insurance Services Standard” has the meaning assigned thereto in Section 3.1(a) of the\nInsurance Agreement.
“Interchange Rules” has the interchange rules or supplements thereto of the AAR, as the\nsame may be in effect from time to time.
“Intellectual Property” means all past, present and future: trade\nsecrets 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\nthereto and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including copyrights for computer programs and software) and copyright registrations or\napplications 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\npatents; 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\nsheets, 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\nthroughout the world in and to any or all of the foregoing.
“Interest Accrual Period” means, except as may\nbe otherwise provided in the related Series Supplement for a Series of Equipment 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 shall\nbegin on the Initial Closing Date and end on (but exclude) the first Payment Date occurring after the Initial Closing Date.
\n
A-17\n
\n\n\n\n
\n\n
“Investment Letter” means a letter substantially in the form of\nExhibit D attached hereto.
“Investment Property” means all “investment property” as defined\nin Article 9 of the UCC.
“Involuntary Railcar Disposition” has the meaning set forth in\nSection 5.03(a)(ii).
“Issuance Date” with respect to any Series of Equipment Notes means the applicable\nSeries Issuance Date.
“Issuance Expenses” means the aggregate amount of all subscription discounts,\nbrokerage commissions, placement fees, resale fees, structuring fees, out of pocket transaction expenses and other similar fees, commissions and expenses relating to the issuance of each Series of the Initial Equipment Notes or any Additional\nSeries, as specified in the related Series Supplement for each Series.
“Issuer” has the meaning\nassigned in the preamble to the Master Indenture.
“Issuer Documents” means the Master Indenture, any\nSeries Supplement thereto, each Lease relating to a Portfolio Railcar (whether entered into by Issuer, by the Manager as agent for Issuer or otherwise), the Insurance Agreement, the Policy Provider Documents for each Series or Class of\nEquipment Notes as to which a Policy Provider has issued Series Enhancement, the Management Agreement, the Account Administration Agreement, the Administrative Services Agreement, the Asset Transfer Agreement, any Bill of Sale, any Assignment\nand Assumption, the Marks Company Trust Agreement, any Marks Company Trust Supplement, the Marks Servicing Agreement and any SUBI Certificate related to the Portfolio Railcars.
\n“Issuer Expense” means, for any Payment Date, any of the following costs directly incurred by Issuer or incurred by any\nService Provider in its performance of its obligations under the applicable Service Provider Agreement that are, in each case, reasonable in amount and are fairly attributable to Issuer and its permitted activities during the related Collection\nPeriod: (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’ and trustees’ fees and\nexpenses, including fees and expenses of the independent managers for the General Partner and Limited Partner; (iv) other professional fees; (v) taxes (including personal or other property taxes and all sales, value added, use and similar\ntaxes) 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\ninterests, stock exchange listing fees, registrar and transfer expenses and trustee’s fees with respect to any outstanding securities of Issuer; and (vii) surveillance fees assessed by the Rating Agencies, including any such fees incurred\nby the Issuer in connection with its compliance with its covenant set forth in Section 5.2(o) hereof.
\n
A-18\n
\n\n\n\n
\n\n
“Issuer Group Member” means any of the Issuer, Trinity, TILC, TRLTII or any\nAffiliate of any of them.
“Law” means (a) any constitution, treaty, statute, law, regulation, order,\nrule or directive of any Government Authority, and (b) any judicial or administrative interpretation or application of, or decision under, any of the foregoing.
“Lease Payments” means all lease rental payments and other amounts payable by or on behalf of a Lessee under a Lease,\nincluding payments credited due to application of security deposits and amounts recovered under other supporting obligations, if any, in respect of such Lease.
“Limited Partner” means TILX LP V, LLC, a Delaware limited liability company, as sole limited\npartner of the Issuer.
“Management Agreement” means the Railroad Car Management, Operation, Maintenance,\nServicing and Remarketing Agreement dated as of May 24, 2006 between the Issuer and TILC, as initial Manager thereunder.
\n“Management Fee” means, for any Payment Date, the compensation payable to the Manager on such Payment Date in accordance\nwith the terms of, and as designated in, the Management Agreement.
“Manager” means TILC, in its capacity as\nManager under the Management Agreement, including its successors in interest, until another Person shall have become the “Manager” under such agreement, after which “Manager” shall mean such other Person.
\n“Manager Default” has the meaning set forth in Section 8.2 of the Management Agreement.
\n“Manager’s Fleet” means the TILC Fleet as of the Initial Closing Date or as of any date thereafter and does not\ninclude Portfolio Railcars and, if a Successor Manager shall have been appointed pursuant to the Management Agreement, “Manager’s Fleet” means all railcars owned, leased or managed by such Manager or its Affiliates, in either case,\nother than Portfolio Railcars.
“Mandatory Replacement Account” has the meaning given to such term in\nSection 3.01(a) hereof.
\n
A-19\n
\n\n\n\n
\n\n
“Mark” means the identification mark of a railcar registered with the AAR,\nconsisting of letters registered in the name of the owner of the railcar mark and the car number.
“Manager\nTermination Event” means the occurrence of any event specified in the Management 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\ndelivery of such notice, as applicable) which gives the Issuer thereunder or its assignees the right to effect a replacement of the current Manager thereunder with a successor or replacement Manager
\n“Marks Company” means Trinity Marks Company, a Delaware business trust.
\n“Marks Company Trust Agreement” means the Amended and Restated Marks Company Trust Agreement, dated as of May 17,\n2001, between TILC and Wilmington Trust Company.
“Marks Company Trust Supplement” means, with respect to any\nAdditional Series, the related Supplement to the Marks Company Trust Agreement, substantially in the form of the Marks Company Trust Supplement 2006-1.
“Marks Company Trustee” has the meaning set forth in the Marks Company Trust Agreement.
\n“Marks Servicing Agreement” means the Management and Servicing Agreement, dated as of May 17, 2001, between TILC\nand the Marks Company.
“Master Indenture” has the meaning set forth in the preamble hereof.
\n“Merger Transaction” has the meaning given to such term in Section 5.02(g) hereof.
\n“Mexican Lessee” is defined in the definition of Permitted Lessee.
\n“Mexico Concentration Restriction” means the conditions described in clause (a) and (b) of the proviso to the\ndefinition of Permitted Lessee, collectively.
“Minimum Principal Payment Amount” means, for each Class of\nEquipment Notes within a Series and for any Payment Date, the excess, if any, of (x) the sum of the then Outstanding Principal Balance of all Equipment Notes of such Class over (y) the Minimum Targeted Principal Balance of such Class for\nsuch Payment Date.
“Minimum Targeted Principal Balance” means, for each Class of Equipment Notes within a\nSeries 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 Section 3.18 of the Master Indenture.
\n
A-20\n
\n\n\n\n
\n\n
“Modification Agreement” means any agreement between the Issuer (or the\nManager acting on its behalf) and a Supplier for the purchase and/or installation of a Required Modification or an Optional Modification.
“Monthly Report” has the meaning given to such term in Section 2.13(a) hereof.
\n“Moody’s” means Moody’s Investors Service, Inc. or, if such corporation or its successor shall for any reason\nno 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 Issuer.
\n“National Reload Pool” means the autorack pool operated by TTX Company for the shared use of bi-level and tri-level\nautorack Railcars that have been supplied for such pool by participating Class 1 railroads.
“Net Disposition\nProceeds” 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\ndeducting 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\nto 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\nsubject 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\nother third parties.
“Net Leases” means Leases pursuant to which a Lessee thereunder is responsible for\nmaintenance and repair of the Portfolio Railcars leased thereunder.
“Net Proceeds” means, with respect to\nthe issuance of a Series of Equipment Notes, the aggregate amount of cash received by Issuer in connection with such issuance after deducting therefrom (without duplication) all Issuance Expenses; provided that such amount shall not be less\nthan zero.
“Net Stated Interest Shortfall” has the meaning given to such term in Section 3.04(c)\nhereof.
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.\n
“Note Form” means, (a) with respect to a Class A Note, the form of Equipment Note attached hereto\nas Exhibit A, with such changes therein and such additional information as may be provided in the Series Supplement under which such Class A Note is issued, and (b) with respect to a Class B Note, the form of Equipment Note\nattached hereto as Exhibit B, with such changes therein and such additional information as may be provided in the Series Supplement under which such Class B Note is issued.
\n
A-21\n
\n\n\n\n
\n\n
“Noteholder” or “Holder” means any Person in whose name an\nEquipment Note is registered from time to time in the Register for such Equipment Notes.
“Noteholder Indemnified\nAmounts” means, in respect of any Series of Equipment Notes, all amounts due to the Holders thereof for indemnification payments, as and to the extent specified in the Series Supplement that establishes such Series of Equipment Notes.\n
“Note Registrar” has the meaning given to such term in Section 2.03(a) hereof.
\n“Notices” has the meaning given to such term in Section 13.04 hereof.
\n“Officer’s Certificate” means a certificate signed (i) in the case of a corporation, by the President, any\nVice 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\nAssistant 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\nChairman 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\nthose 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\nliability company, any manager thereof and any President, Managing Director or Vice President thereof.
“Operating\nExpenses” means (i) Issuer Expenses, (ii) Ordinary Course Expenses and (iii) the costs of Required Modifications.
“Opinion of Counsel”\nmeans a written opinion signed by legal counsel, who may be an employee of the Manager or the Administrator or counsel to Issuer, that meets the requirements of Section 1.03 hereof.
\n“Optional Modification” means a modification or improvement of a Railcar, the cost of which is capitalized in accordance\nwith U.S. GAAP, that (a) is not a Required Modification and (b) complies with the criteria set forth in Section 5.04(cc)(ii) hereof.
A-22\n
\n\n\n\n
\n\n
“Optional Reinvestment Account” has the meaning given to such term in\nSection 3.01(a) hereof.
“Ordinary Course Expenses” means, with respect to any Payment Date, all of the\nfollowing expenses and costs, incurred by, or on behalf of the Issuer 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\nroutine 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;\n(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 Manager in the negotiation and documentation of Future Leases or\nof 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,\npenalties, 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\nclaims against manufacturers or sellers of a Railcar; (viii) non-recoverable sales and value-added taxes with respect to a Railcar; and (ix) governmental filing fees necessary to perfect, or continue the perfection of, the security\ninterest of the Indenture Trustee in a Railcar and/or a Lease.
“Ordinary Inspection” has the meaning given\nto such term in Section 5.04(bb)(iii) hereof.
“Outstanding” means with respect to the Equipment Notes\nof any Series at any time, all Equipment Notes of such Series theretofore authenticated and delivered by the Indenture Trustee except (i) any such Equipment Notes cancelled by, or delivered for cancellation to, the Indenture Trustee;\n(ii) any such Equipment Notes, or portions thereof, for which the payment of principal of and accrued and unpaid interest on which moneys have been deposited in the applicable Series Account or distributed to Noteholders by the Indenture\nTrustee and any such Equipment 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 Equipment Notes; (iii) any such Equipment Notes\nin exchange or substitution for which other Equipment 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\npresented that any of such Equipment Notes is held by a Person in whose hands such Equipment Note is a legal, valid and binding obligation of Issuer); and (iv) for the limited purposes described in Section 1.04(c), any Equipment Note held\nby Issuer or any other Issuer Group Member. Notwithstanding the foregoing, any Equipment Note with respect to which any portion of principal of or interest thereon has been paid by a Series Enhancer pursuant to an Enhancement Agreement shall be\ndeemed to be Outstanding for all purposes of the Operative Agreements until the applicable Series Enhancer has been reimbursed in full therefor in accordance with the related Enhancement Agreement.
\n
A-23\n
\n\n\n\n
\n\n
“Outstanding Equipment Note” means an Equipment Note that is Outstanding.\n
“Outstanding Obligations” means, as of any date of determination, an amount equal to the sum of (i) the\nOutstanding Principal Balance of, and all accrued and unpaid interest (including without limitation, Additional Interest) payable on, all Equipment Notes and (ii) all other amounts owing from time to time to Noteholders, Series Enhancers\nor to any other Person under the Operative Agreements, including without limitation any amounts (including reimbursement amounts) owed to any Series Enhancer under any Enhancement Agreement or other Policy Provider Document.
\n“Outstanding Principal Balance” means, with respect to any Outstanding Equipment Notes, the sum of (a) the total\nprincipal balance of such Outstanding Equipment Notes unpaid and outstanding at any time and (b) any portion of the principal of such Equipment Notes that shall have been paid by a Series Enhancer pursuant to an Enhancement Agreement, to\nthe extent such Series Enhancer shall not have been reimbursed therefor in accordance with the related Enhancement Agreement.
“Parent Undertaking\nAgreement” means the Parent Undertaking Agreement from Trinity in favor of the Indenture Trustee and the Policy Provider, dated May 24, 2006.
“Partnership Default” has the meaning assigned thereto in Section 8.4 of the Management Agreement.
\n“Paying Agent” has the meaning given to such term in Section 2.03(a) hereof. The term “Paying Agent”\nincludes any additional Paying Agent.
“Payment Date” means the 14
A-24\n
\n\n\n\n
\n\n
“Permitted Encumbrance” means: (i) the ownership interests of the\nIssuer; (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\ncontested 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\nany 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\nsimilar 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\nsuch 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 the Master Indenture; (vi) any Encumbrances created by\nor 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 (\nprovided 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\npolicies covering the affected asset; (viii) any sublease permitted under any Lease thereof; and (ix) Encumbrances which are released or extinguished upon the transfer of the related asset to the Issuer by the applicable transferee\nthereof.
“Permitted Holder” has the meaning given to such term in Section 5.02(i)(iii) hereof.\n
“Permitted Investments” means (a) marketable direct obligations issued by, or fully and unconditionally\nguaranteed 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\ndeposit, time 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\n“AA” by S&P or “Aa2” by Moody’s (or equivalent ratings by another nationally recognized credit rating agency if both such corporations are not in the business of rating long-term senior unsecured debt of commercial\nbanks), (c) commercial paper of an issuer rated at the time of acquisition at least A-1+ by S&P or P1 by Moody’s, or carrying an equivalent rating by an internationally recognized rating agency, if both of the two named rating agencies\ncease publishing ratings of commercial paper issuers generally, 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,\nhaving 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\nguaranteed 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,\nterritory, political subdivision, taxing authority or foreign government (as the case may be) are rated at the time of acquisition at least A-1+ by S&P or P1 by Moody’s or carrying an equivalent rating by an internationally recognized\nrating 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
\n
A-25\n
\n\n\n\n
\n\n
\nrequirements 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\nCompany 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/or “AAA” by S&P or invest exclusively in assets\nsatisfying the requirements of clauses (a) through (f) of this definition.
“Permitted Lease” means\n(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 (b) any agreement (other than an Existing Lease) constituting a\nLease that meets all of the following requirements:
(i) the Lessee thereunder is a Permitted Lessee;
\n(ii) if such agreement permits the Lessee thereunder to sublease any of the Portfolio Railcars subject to such Lease, then such Lease\nshall require that any such sublease be conditioned on (A) the Lessee’s obtaining the Lessor’s prior consent to such sublease, (B) the Lessee agreeing that any such sublease will have provisions making it terminable (as to the\nsublessee) at the request of the Lessor or Lessee, as applicable, and prohibiting any further subleasing by the sublessee and will not contain any purchase option in favor of the sublessee, (C) the Lease providing that no such sublease shall\nrelieve the Lessee from liability thereunder and (D) the applicable sublessee satisfying the requirements for a “Permitted Lessee” set forth below;
(iv) such agreement does not contain any purchase option in favor of the Lessee thereunder, other than a purchase\noption provision complying with the definition of a Permitted Purchase Option;
(v) such agreement (or any related consent,\nacknowledgment 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\n(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\nsuch 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\nin and of itself be deemed to constitute the Lease as other than a Permitted Lease; and
(vi) such agreement contains a\nprovision substantially similar to Article 6 in the Form of Net Lease or Article 4 in the Form of Full Service Lease; provided that this clause (vi) shall not apply if such agreement is subject to the terms of, or entered into\npursuant to, an existing master lease agreement dated on or prior to the Initial Closing Date which does not contain such a provision.
\n
A-26\n
\n\n\n\n
\n\n
“Permitted Lessee” means any of the following:
\n(i) a railroad company or companies (that is not a Credit Bankrupt, Trinity or any Affiliate of Trinity) organized under the laws of the\nUnited States of America or any state thereof or the District of Columbia, Canada or any province thereof, or Mexico or any state thereof, upon lines of railroad owned or operated by such railroad company or companies or over which such railroad\ncompany or companies have trackage rights or rights for operation of their trains, and upon connecting and other carriers in the usual interchange of traffic;
(iii) wholly-owned Subsidiaries of Trinity organized under the laws of (x) Canada or any political subdivision thereof\nor (y) Mexico or any political subdivision thereof, in each case so long as such Leases are on an arm’s length basis;
\nprovided, however, that a Person organized under the laws of Mexico or any state thereof (a “Mexican Lessee”) shall not\nconstitute a Permitted Lessee unless after giving effect to the contemplated lease to such Mexican Lessee, (a) the percentage of Portfolio Railcars in the aggregate (as measured by Adjusted Value) leased (or subleased by a Lessee organized\nunder 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\nexceed 20% of the Adjusted Value of the Portfolio Railcars in the aggregate, and (b) such percentage does not exceed 15%, in respect of Lessees described in clause (a) whose long term senior unsecured debt is not rated by a Rating Agency\nor rated by any Rating Agency below BBB- or Baa3, as determined by S&P and Moody’s, as applicable.
\n“Permitted Purchase Option” has the meaning given such term in Section 5.01(z) of the Master Indenture.
\n“Permitted Railcar Acquisition” has the meaning given to such term in Section 5.03(c) hereof.
\n“Permitted Railcar Disposition” has the meaning given to such term in Section 5.03(a)(ii)(3) hereof.
\n“Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture,\nassociation, joint-stock company, trust, unincorporated organization, government or any political subdivision thereof or any other legal entity, including public bodies.
\n
A-27\n
\n\n\n\n
\n\n
“Policy” means, as the context may require, (a) the financial guaranty\ninsurance policy issued by Ambac Assurance Corporation in respect of the Series 2006-1 Notes on the Initial Closing Date, or (b) a Comparable Policy.
“Policy Provider Default” means the occurrence and continuance of any of the following events with respect to a Policy:\n(a) the Policy Provider shall have failed to pay any “Insured Amount” or comparable obligation as described or defined therein, required under the Policy in accordance with its terms; (b) the Policy Provider shall have\n(i) filed a petition or commenced any case or proceeding under any provision or chapter of the Bankruptcy Code or any other similar federal or state law relating to insolvency, bankruptcy, rehabilitation, liquidation or reorganization,\n(ii) made a general assignment for the benefit of its creditors, or (iii) had an order for relief entered against it under the Bankruptcy Code or any other similar federal or state law relating to insolvency, bankruptcy, rehabilitation,\nliquidation or reorganization; or (c) a court of competent jurisdiction, the applicable state insurance department or other competent regulatory authority shall have entered a judgment or decree (i) appointing a custodian, trustee, agent\nor receiver for the Policy Provider or for all or any material portion of its property or (ii) authorizing the taking of possession by a custodian, trustee, agent or receiver of the Policy Provider (or the taking of possession of all or any\nmaterial portion of the property of the Policy Provider).
“Policy Provider Documents” has the meaning given\nsuch term in the applicable Series Supplement for the Series or Class thereof as to which the related Policy Provider has issued a Series Enhancement.
“Precedent Lease” has the meaning given to such term in Section 5.03(d)(ii) hereof.
\n“Principal Terms” means, with respect to any Series, all of the following information: (i) the name or designation\nof such Series and the Classes of Equipment Notes to constitute such Series; (ii) the initial principal amount of the Equipment Notes to be issued for such Series (or method for calculating such amount); (iii) the interest rate to be paid\nwith respect to each Class of Equipment 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 the\nterms governing the operation of any such Series Accounts; (vi) the terms of any form of Series Enhancement with respect thereto; (vii) the Final Maturity Date for the Series; (viii) the Control Party with respect to such\nSeries; (ix) the Scheduled Principal Payment Amounts and the Minimum Principal Payment Amounts for each Class of Equipment Notes within such Series, (x) the designation of such Series or the Classes therein as Class A Notes or\nClass B Notes, and (xi) any other terms of such Series.
\n
A-28\n
\n\n\n\n
\n\n
“Private Placement Legend” means the legend initially set forth on the\nEquipment Notes in the form set forth in Section 2.02 hereof.
“Proceeding” means any suit in equity,\naction at law, or other judicial or administrative proceeding.
“Proceeds” means (a) all\n“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,\ncollected, converted or otherwise disposed of, whether such disposition is voluntary or involuntary.
“Pro Forma\nLease” has the meaning given to such term in Section 5.03(d) hereof.
“Prospective Operating\nExpenses” means, as of any date of determination, the Administrator’s (after consulting with the Manager) good faith estimate of significant anticipated Operating Expenses of the Issuer expected to be incurred over the next 12\nCollection Periods.
“Prudent Industry Practice” means at a particular time and to the extent the same are\ngenerally 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\nthe 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\nthe 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\nare generally engaged in by other owners, managers and operators of railcars in the United States which are similar to the Portfolio Railcars.
“Qualified Institutional Buyer” means a “qualified\ninstitutional buyer” as defined in Rule 144A promulgated under the Securities Act.
“Qualifying Replacement\nRailcars” has the meaning given such term in Section 5.03(a)(iii)(B).
\n
A-29\n
\n\n\n\n
\n\n
“QIB” means a “qualified institutional buyer” as defined in\nRule 144A.
“Railcar” means an item of railroad rolling stock, including any autorack, together with\n(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\nfrom time to time incorporated or installed in any item thereof.
“Railcar Disposition” means any sale,\ntransfer or other disposition of any Railcar (or an interest therein), including by reason of such Railcar suffering a Total Loss.
“Railcar Type Concentration Limits” means\nthe limits, based on the number of the applicable Portfolio Railcars within a particular type, as measured against the aggregate Adjusted Value of the Portfolio Railcars, set forth in Exhibit E of the Master Indenture and measured as of any\nparticular date of determination. It is understood that the categories for Railcar types set forth on such Exhibit E are, as to any particular Railcar, determined by the Issuer in consultation with the Manager based on the most recent available\ninformation that the Issuer or Manager has as to the use of such Railcar by a Lessee, and such information may not reflect any change in or additional usage to which a particular Railcar has been subjected by a Lessee, which usages or types of\nusages are generally not within the Issuer’s or the Manager’s control or necessarily subjected to any regular or periodic monitoring by the Issuer or the Manager.
“Railroad Mileage\nCredits” means the mileage credit payments made by railroads under their applicable tariffs to the registered owner of identifying marks on the railcars.
“Rating Agency Confirmation”\nmeans, with respect to any action or omission specified herein for which a Rating Agency Confirmation is required, both (x) a prior written confirmation from each Rating Agency then maintaining a rating on any Series of Equipment Notes (or\nClass thereof) then Outstanding that such action or omission in and of itself will not result in a lowering, qualification or withdrawal of the then current ratings on any such Series or Class and\n
\n
A-30\n
\n\n\n\n
\n\n
\n(y) in the case of a Series or Class benefiting from any Series Enhancement consisting of a Policy, a prior written confirmation from each Rating Agency that issued to the applicable\nSeries Enhancer an underlying rating for such Series or Class with respect to the risk secured by such Series Enhancement, that such action or omission in and of itself will not result in a lowering, qualification or withdrawal of the then\ncurrent underlying rating with respect to such risk.
“Received Currency” has the meaning given to such term\nin Section 13.06(a) hereof.
“Record Date” means with respect to each Payment Date, the close of\nbusiness 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 the Equipment Noteholders, the close of business on the last Business Day prior to the solicitation of\nsuch Direction.
“Redemption” means an Optional Redemption.
\n“Redemption/Defeasance Account” means an account established by the Master Indenture Trustee pursuant to\nSection 3.10 hereof.
“Redemption Date” means the date, which shall in each case be a Payment Date\n(unless constituting a Refinancing), on which Equipment Notes of any Series are redeemed in whole or in part pursuant to a Redemption.
“Redemption Premium” means, with respect to the principal amount of any Equipment Note to be prepaid\non any prepayment date, an amount equal to the product obtained by multiplying (a) the excess, if any, of (i) the sum of the present values of all the remaining Scheduled Principal Payment Amounts and interest, based upon scheduled\namortization, from the prepayment date to the fifteenth anniversary of the Issuance Date of such Equipment Note, discounted monthly on the day of each month at a rate equal to the Treasury Rate plus 0.50%, based upon a 360-day year of twelve 30-day\nmonths, over (ii) the aggregate Outstanding Principal Balance of such Equipment Note, based upon such scheduled amortization, plus any accrued but unpaid interest thereon by (b) a fraction, the numerator of which shall be the aggregate\nOutstanding Principal Balance of such Equipment Note to be prepaid on such Redemption Date and the denominator of which shall be the aggregate Outstanding Principal Balance of such Equipment Note; provided that the Outstanding Principal\nBalance of such Equipment Note for the purpose of clause (a)(ii) and (b) of this definition shall be determined after deducting the principal installment, if any, due on such Redemption Date.
\n“Redemption Price” means, with respect to any Series of Equipment Notes or Class thereof that will be the subject of a\nRedemption, an amount (determined as of the Determination Date for the Redemption Date for any Redemption) equal to, unless otherwise specified in the related Series Supplement, the Outstanding Principal Balance of the Series or Class of Equipment\nNotes being repaid together with all accrued and unpaid interest thereon and, if specified in the related Series Supplement, a Redemption Premium.
\n
A-31\n
\n\n\n\n
\n\n
“Refinancing” means the issuance of an Additional Series of Equipment Notes\nfor the purpose of an Optional Redemption of all, and not less than all, of an outstanding Series of Equipment Notes.
\n“Register” has the meaning given to such term in Section 2.03(a) hereof.
\n“Regulation S” means Regulation S under the Securities Act.
\n“Regulation S Book-Entry Notes” means the Unrestricted Book-Entry Notes and the Regulation S Temporary\nBook-Entry Notes.
“Regulation S Temporary Book-Entry Note” means Equipment Notes initially sold outside\nthe 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 Note Form for such Equipment\nNote, with the legends required by Section 2.02 for a Regulation S Temporary Book-Entry Note inscribed thereon and with such changes therein and such additional information as may be specified in the Series Supplement pursuant to\nwhich such Equipment Note is issued.
“Reimbursable Services” has the meaning assigned thereto in\nSection 5.4 of the Management Agreement.
“Related Documents” means the Service Provider Agreements, any\nAcquisition Agreement, each Enhancement Agreement, this Master Indenture, the Equipment Notes, each Series Supplement and the Security Documents, together with all certificates, documents and instruments delivered pursuant to any of the\nforegoing.
“Related Party” means, with respect to any Person, an Affiliate of such Person and any director,\nofficer, servant, employee, agent, successor or permitted assign of that Person or any such Affiliate.
“Relative\nDocument” has the meaning given to such term in Section 5.04(bb)(i) hereof.
“Relative Document\nInspection” has the meaning given to such term in Section 5.04(bb)(i) hereof.
“Relevant\nInformation” means the information provided by the Service Providers to the Administrator that is required to enable the Administrator make the calculations contemplated by Section 3.12(a) through (e).
\n“Remaining Weighted Average Life” means, with respect to any date of prepayment or any date of determination of any\nEquipment Note, the number of days equal to the quotient obtained by dividing (a) the sum of the products obtained by multiplying (i) the Outstanding Principal Balance of such Equipment Note for each Payment Date in accordance with the\nScheduled Targeted Principal Balance (in the case of a prepayment date, from the prepayment
\n
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\n\n\n\n
\n\n
\ndate to the first Payment Date occurring on or immediately following the fifteenth anniversary of the related Issuance Date) by (ii) the number of days from and including the prepayment date\nor date of determination to but excluding the scheduled payment date of such principal payment by (b) the Outstanding Principal Balance of such Equipment Note.
“Replacement Period” means, with respect to the Issuer’s use of all or any portion of\nDisposition Proceeds as permitted in accordance with this Master Indenture, the period beginning on the date of such Railcar Disposition and ending on the earlier of (i) the 180
“Required Expense Amount” means, with respect to a Payment\nDate, 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\nreceived 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\nthat are due and payable during the Interest Accrual Period beginning on such Payment Date and (iii) a reserve amount to be deposited for Prospective Operating Expenses.
“Required Modification” means any alteration or modification of a Portfolio Railcar required by the AAR, the FRA, the\nUnited 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\napplicable)) and required by such entity as a condition of continued use or operation of such Railcar in interchange.
\n“Required Transition Expense Amount” means (i) at any time that the rating of the long-term Dollar denominated\nunsecured debt obligations of Trinity Industries, Inc. is below BB- by S&P or below Ba3 by Moody’s, $500,000 (provided that such amount shall be reduced to $250,000 after the appointment of a back-up Manager meeting the requirements of a\n“Successor Manager” as set forth in Section 8.6 of the Management Agreement) and (ii) at any time that such rating is BB- by S&P and Ba3 by Moody’s or above, $0.
\n
A-33\n
\n\n\n\n
\n\n
“Requisite Majority” means, with respect to any proposed action to be taken\npursuant to the terms of this Master Indenture or any other Operative Agreement, that such action shall have been approved or directed by: (a) at any time a Policy (other than during the continuance of a Policy Provider Default with respect to\nsuch Policy) is then in effect with respect to any Class A Notes, Specified Series Enhancers (other than Defaulting Series Enhancers) representing more than fifty percent (50%) of the Outstanding Principal Balance of all Series\nof Class A Notes then enhanced by a Policy (excluding any such Outstanding Principal Balance with respect to any such Series enhanced by a Policy with respect to which a Policy Provider Default shall have occurred and be continuing), and\n(b) at any time other than as described in clause (a), Control Parties representing more than fifty percent (50%) of the sum of the then Outstanding Principal Balance of the Senior Class, provided that, in making such a\ndetermination under either clause (a) or clause (b), each Specified Series Enhancer or Control Party, as the case may be, shall be deemed to have voted the entire Outstanding Principal Balance of the related Senior Class for which it is\nthe Specified Series Enhancer or Control Party in favor of, or in opposition to, such proposed action, as the case may be.
\n“Responsible Officer” means, with respect to the subject matter of any covenant, agreement or obligation of any party\ncontained 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\nsuch matter and the requirements with respect thereto; and with respect to the Indenture Trustee, any trust officer at its corporate trust office (or any other officer to whom any matter has been referred because of such officer’s knowledge and\nfamiliarity with the particular subject); and when used in connection with the Issuer, shall include any such officer of the Manager or the Insurance Manager or the Administrator acting on behalf of the Issuer under the applicable Service Provider\nAgreement, as the case may be.
“Rider” means a schedule or rider to a master lease agreement between the\nlessor thereunder and a lessee that evidences the lease transaction in respect of the individual railcars listed thereon, as contemplated in such master lease agreement.
“S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc. or any successor to such\ncorporation’s business of rating securities, or, if such corporation 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\nrecognized rating agency designated by Issuer.
“Schedule” means a schedule or rider to a master lease\nagreement 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.
\n“Scheduled Principal Payment Amount” means, for each Series of Equipment Notes or Class thereof on any Payment Date, the\nexcess, if any, of (x) the sum of the then Outstanding Principal Balance of all Equipment Notes of such Series or Class (after giving effect to any payment of the Minimum Principal Payment Amount for such Series or Class of Equipment Notes\nactually paid on such Payment Date, over (y) the Scheduled Targeted Principal Balance for such Series or Class for such Payment Date.
\n
A-34\n
\n\n\n\n
\n\n
“Scheduled Targeted Principal Balance” means, for each Class of Equipment\nNotes 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 3.18 of the Master Indenture.
\n“Secured Obligations” has the meaning given such term in the Granting Clause hereof.
\n“Secured Parties” means the holders of and/or obligees in respect of the Secured Obligations, including without\nlimitation the Noteholders and the Series Enhancers.
“Securities” means any obligations of an issuer or\nany 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\nupon 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,\ndealt 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.
\n“Securities Act” means the Securities Act of 1933, as amended.
\n“Securities Accounts” means all “securities accounts” as defined in Article 9 of the UCC.
\n“Securities Entitlements” means all “security entitlements” as defined in Article 9 of the UCC.\n
“Security Documents” means this Agreement [and each other agreement that creates a Security Interest in\nfavor of the Secured Parties].
“Security Interests” means the security interests and other Encumbrances\ngranted or expressed to be granted in the Collateral pursuant to the Master Indenture.
“Seller” has the\nmeaning given such term in the Asset Transfer Agreement.
“Senior Claim” has the meaning given thereto in\nSection 11.01(a) hereof.
“Senior Claimant” has the meaning given thereto in Section 11.01(a)\nhereof.
“Senior Class” means (a) initially, all Equipment Notes constituting Class A Notes then\nOutstanding, and (b) upon and after the occurrence of both (x) the payment in full of the Outstanding Principal Balance of all Class A Notes, all accrued interest thereon and any other Outstanding Obligations with respect to the\nClass A Notes, and (y) the termination of all Policies enhancing any Class A Notes, all Equipment Notes constituting Class B Notes then Outstanding.
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“Series” means any series of Equipment Notes established pursuant to a\nSeries Supplement.
“Series Account” has the meaning given to such term in Section 3.01(a)\nhereof.
“Series Allocation Rules” has the meaning given to such term in Section 3.14(c) hereof.\n
“Series Enhancement” means the rights and benefits provided to the Noteholders of any Series pursuant\nto any letter of credit, surety bond, financial guaranty insurance policy, insurance agreement, cash collateral or reserve account, spread account, guaranteed rate agreement, maturity liquidity facility or other similar arrangement. The\nsubordination of any Class of Equipment Notes to that of another Class shall not be deemed to be a Series Enhancement.
\n“Series Enhancer” means, for each Series, the Person as set forth in the related Series Supplement then providing\nany Series Enhancement.
“Series Enhancer Expenses” means, with respect to any\nSeries Enhancer, all amounts payable by the Issuer under the applicable Enhancement Agreements (including without limitation, to the extent payable by the Issuer under the applicable Enhancement Agreements, (i) costs and expenses of such\nSeries Enhancer, (ii) legal fees, auditors’ fees and disbursements and similar fees payable by the Issuer, (iii) amounts payable in connection with any indemnification provisions set forth in the applicable Enhancement\nAgreements, (iv) interest on any payments made by such Series Enhancer pursuant to the applicable Enhancement Agreements and (v) interest on any of the foregoing amounts not paid when due pursuant to the applicable Enhancement\nAgreements), but specifically excluding (x) all payments made by such Series Enhancer pursuant to the applicable Enhancement Agreements and (y) all Enhancement Premium, Enhancement Prepayment Premium and Enhancement Step Up Premium\nAmount.
“Series Issuance Date” means, with respect to any Series, the date on which the Equipment Notes\nof such Series are issued in accordance with the provisions of Section 9.06 of this Master Indenture and the related Series Supplement.
“Series 2006-1 Notes” means the Equipment Notes issued pursuant to the Series 2006-1\nSupplement.
“Series 2006-1 Policy” means the financial guaranty insurance policy issued on the Initial\nClosing Date by the Policy Provider, as described in the Series 2006-1 Supplement.
“Series 2006-1\nSupplement” means the Series Supplement, dated as of the Initial Closing Date, with respect to the Series 2006-1 Notes.
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“Service Provider” means each of or all of (as the context may require) the\nManager, the Insurance Manager, the Indenture Trustee and the Administrator.
“Service Provider Agreements”\nmeans, when used with respect to any Service Provider, the Management Agreement, the Insurance Agreement, the Administrative Services Agreement or the Master Indenture, in each case as applicable to such Service Provider which is party thereto, or\nany of the foregoing individually as the context requires.
“Service Provider Fees” means any fees and\nexpenses due or reimbursable to Service Providers in accordance with the applicable agreements with such Servicer Providers (including the Related Documents), including, without limitation, the Indenture Trustee Fees due to the Indenture Trustee\nhereunder, but excluding any such amounts that constitute Operating Expenses.
“Servicing Agreement” means\nthe Marks Servicing Agreement.
“Sold Railcars” has the meaning given to such term in\nSection 5.03(a)(iii)(D) hereof.
“Specified Provisions” mean any of the following provisions:\n(a) the definition of “Flow of Funds”, any provision described in such definition or any defined term referred to in any such provision, if and to the extent the effect of any amendment, modification, waiver or consent in respect of\nany such provision or defined term referred to therein changes the priorities of payments that are owing to any Series Enhancer or in respect of any Class A Notes, (b) the definition of “Series Allocation Rules” or any\nprovision described in such definition, (c) the definitions of “Adjusted Value”, “Class A Issuance Condition”, “Class B Issuance Condition”, “Early Amortization Event”, “Rating Agency\nConfirmation”, “Requisite Majority” or “Specified Series Enhancers”, (d) Section 3.14 [Allocation Rules] , Section 4.01 [Events of Default] , Section 4.04 [Waiver of Existing\nDefaults] , Section 5.01(z) [Purchase Options ], Section 5.01(bb) [Concentration Limits] , Section 5.02(a) [No Release of Obligations] , Section 5.02(c) [Indebtedness] , Section 5.02(o)\n[Ratings on Equipment Notes] , Section 5.02(p) [Separate Entity Characteristics] , Section 5.03 [Portfolio Covenants] , Section 5.04(o) [Restriction on Amendments to Assigned Agreements and Certain Other\nActions] , Section 5.04(r) [Organizational Documents] , Section 5.04(bb) [Inspection] , Section 6.11 [Certain Rights of the Control Party/Requisite Majority] or Section 9.06 [Issuance of Additional\nEquipment Notes] hereof, (e) the definition of “Manager Replacement Event,”, “Manager Termination Event” or “Manager Default” or Sections 8.2, 8.3, 8.5 or 8.6 of the Management Agreement, (f) the\nAccount Administration Agreement or (g) this definition of “Specified Provisions”.
“Specified\nSeries Enhancers” means, collectively, as of any date of determination, each Eligible Policy Provider that shall have provided Series Enhancement in respect of Outstanding Class A Notes pursuant to a Policy.
\n“Stated Interest” means, with respect to any Equipment Note, the amount of interest payable on such Equipment Note at\nthe Stated Rate set forth in the related Series Supplement.
“Stated Interest Amount” means, with\nrespect to any Series of Equipment Notes, that amount of Stated Interest due and payable on such Series of Equipment Notes (or Class thereof) on a Payment Date, including any Stated Interest due and payable on a prior Payment Date that was not paid\non such Payment Date.
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“Stated Interest Shortfall” has the meaning given to such term in\nSection 3.12(d).
“Stated Rate” means, as specified in the related Series Supplement, the rate of\ninterest payable on a specific Equipment Note of the related Series or Class of Equipment Note within the related Series.
\n“STB” means the Surface Transportation Board of the United States Department of Transportation or any successor thereto.\n
“Stock” means all shares of capital stock, all beneficial interests in trusts, all partnership interests\n(general or limited) in a partnership, all ordinary shares and preferred shares and any options, warrants and other rights to acquire such shares or interests.
“Successor Administrator”\nhas the meaning assigned thereto in Section 4(d) of the Administrative Services Agreement.
“Successor Insurance\nManager” has the meaning assigned thereto in Section 6.3(b) of the Insurance Agreement.
“Successor\nManager” has the meaning assigned thereto in Section 8.4 of the Management Agreement.
\n“Supplement” means a supplement to the Master Indenture, other than a Series Supplement.
\n“Supplier” means the Person that supplies or installs a Required Modification or Optional Modification and to whom\npayment for the Purchase Price of such Required Modification or Optional Modification is to be made.
“Supporting\nObligation” means all “supporting obligations” as defined in Article 9 of the UCC.
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“Tax” and “Taxes” mean any and all taxes, fees, levies,\nduties, 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\nassessed 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\nother 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,\nwithholding, ad valorem, stamp, transfer, value added, taxes on goods and services, gains taxes, license, registration and documentation fees, customs duties, tariffs, and similar charges.
\n“Third Party Event” has the meaning given to such term in Section 5.04 hereof.
\n“TILC” means Trinity Industries Leasing Company, a Delaware corporation.
\n“TILC Agreements” means the Operative Agreements to which TILC is or will be a party.
\n“TILC Fleet” means all railcars owned or leased by TILC as of any date of determination and does not include the\nPortfolio.
“Total Loss” means, with respect to any Railcar (a) if the same is subject to a Lease, an\nEvent 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\neconomic 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\nrequisition 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\nof possession by the owner or operator thereof for a period of ninety (90) 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\nLease 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\nwhich 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\nloss, 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\nof 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\nthe 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\ntherein.
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“Transition Expense Account” has the meaning given to such term in\nSection 3.01(a) hereof.
“Treasury Rate” means with respect to prepayment of each Equipment Note, a per\nannum rate (expressed as a monthly equivalent and as a decimal and, in the case of United States Treasury bills, converted to a bond equivalent yield), determined to be the per annum rate equal to the monthly yield to maturity for United States\nTreasury securities maturing on the Average Life Date of such Equipment Note, as determined by interpolation between the most recent weekly average yields to maturity for two series of United States Treasury securities, (A) one maturing as\nclose as possible to, but earlier than, the Average Life Date of such Equipment Note and (B) the other maturing as close as possible to, but later than, the Average Life Date of such Equipment Note, in each case as published in the most recent\nH.15(519) (or, if a weekly average yield to maturity for United States Treasury securities maturing on the Average Life Date of such Equipment Note is reported in the most recent H.15(519), as published in H.15(519)). H.15(519) means\n“Statistical Release H.15(519), Selected Interest Rates,” or any successor publication, published by the Board of Governors of the Federal Reserve System. The most recent H.15(519) means the latest H.15(519) which is published prior to the\nclose of business on the third Business Day preceding the scheduled prepayment date.
“Trinity” means Trinity\nIndustries, Inc., a Delaware corporation.
“TRLT-II” means Trinity Rail Leasing Trust II, a Delaware\nstatutory trust.
“TRLT-II Agreements” means the Operative Agreements to which TRLT-II is or will be a party.\n
“Trinity Marks” means the Marks owned by the Marks Company designated “TILX” and TIMX.”\n
“UCC” means the Uniform Commercial Code as enacted in the State of New York, or when the context implies, the\nUniform Commercial Code as in effect from time to time in any other applicable jurisdiction.
“Unit\nInspection” has the meaning given to such term in Section 5.04(bb)(i) hereof.
“United States\nPerson” and “U.S. Person” have the meanings given to such terms in Regulation S under the Securities Act.
“U.S. GAAP” means generally accepted accounting principles\nin the United States, as in effect from time to time.
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“U.S. Government Obligations” has the meaning given to such term in\nSection 12.02(a) hereof.
“Weighted Average Age” means, in respect of any portfolio or group of Railcars\nas to which the same is being determined, the weighted (by quantity of Railcars) average age in years of such portfolio or group. For purposes of determining the age of a Railcar in determining Weighted Average Age, age in years is measured from the\ndate of manufacture.
“Weighted Average Life” in respect of a Class of Equipment Notes within a Series and as\nof their date of issuance, equals (i) the sum of the products on each Payment Date of (A) the principal payments assumed to be made in respect of such Class of Equipment Notes on each such Payment Date after the date of issuance,\ndetermined by reference to the Scheduled Targeted Principal Balances or the Minimum Targeted Principal Balances, as applicable, and (B) the number of years from the date of issuance of such Class of Equipment Notes to such Payment Date, divided\nby (ii) the initial principal balance of such Class of Equipment Notes. The remaining Weighted Average Life of any Series of Class thereof as of any date after their issuance is calculated in the same manner, but substituting the date of\ndetermination for the date of issuance.
“Wilmington Funds” means service shares of the Money Market\nPortfolios of WT Mutual Fund, a mutual fund for which Wilmington Trust Company serves as custodian and Rodney Square Management Corp., an affiliate of Wilmington Trust Company, serves as investment advisor or other available fund comprised of shares\nin any money market mutual fund registered under the Investment Company Act of 1940, as amended, that is rated in the highest rating category by any of Moody’s, S&P or Fitch.
\n“WTC” means Wilmington Trust Company, a Delaware banking corporation.
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