AMENDMENT NO. 2 TO WAREHOUSE LOAN AGREEMENT

Exhibit 10.43

AMENDMENT NO. 2 TO WAREHOUSE LOAN AGREEMENT

THIS AMENDMENT NO. 2 TO THE WAREHOUSE LOAN AGREEMENT, dated as of August 26, 2022 (this “Amendment”), is entered into by and among GBXL I, LLC, as borrower (in such capacity, the “Borrower”), Bank of America, N.A., as a Lender (as defined in the Loan Agreement, which is defined below) (“Bank of America”) and as agent (in such capacity, the “Agent”) and Credit Agricole Corporate and Investment Bank, as a Lender (“CA-CIB”). Capitalized terms used but not defined herein have the meanings provided in the Loan Agreement.

R E C I T A L S

WHEREAS, reference is made to the Warehouse Loan Agreement, dated as of April 1, 2021 (as amended from time to time, the “Loan Agreement”), by and among the Borrower, GBXL I (Canada) Ltd. (the “Canadian Subsidiary”), the Lenders from time to time party thereto, the Agent, and Wilmington Trust Company, as collateral agent (the “Collateral Agent”) and depositary;

WHEREAS, the Borrower requests that each Lender and the Agent amend the Loan Agreement, upon and subject to the terms and conditions set forth in this Amendment, as set forth herein;

NOW, THEREFORE, based upon the above Recitals, the mutual premises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

The Loan Agreement is hereby amended with language that appears in the computer generated underscored additions and struck through deletions that appear in the composite copy of the blacklined Loan Agreement attached hereto as Annex A.

All provisions of the Loan Agreement and the other Transaction Documents (including all Obligations of the Borrower and rights of the Agent and the Lenders thereunder) shall remain in full force and effect, as amended by this Amendment. This Amendment in no way is intended to constitute a novation of the Loan Agreement or other Loan Documents that existed prior to the date hereof. Notwithstanding the amendment of the Loan Agreement pursuant to this Amendment, the Borrower shall continue to be liable for all obligations that accrued prior to the date of this Amendment. After this Amendment becomes effective, all references to the Loan Agreement and corresponding references thereto or therein such as “hereof”, “herein”, or words of similar effect referring to the Loan Agreement shall be deemed to mean the Loan Agreement as amended hereby. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any

 

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provision of the Loan Agreement or other Transaction Documents other than as expressly set forth herein. This Amendment shall constitute a Loan Document under the Loan Agreement.

The obligations of each Lender and the Agent to enter into this Amendment, and the effectiveness of this Amendment, are subject to satisfaction of the following conditions:

In order to induce the Agent and each Lender to execute and deliver this Amendment, the Borrower represents and warrants as of the date of this Amendment (after giving effect hereto) as follows:

 

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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first written above.

	GBXL I, LLC, as Borrower By: GBX Leasing, LLC, its sole member By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇  Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇  Title: SVP Finance, Greenbrier Leasing Company
	BANK OF AMERICA, N.A., as ▇▇▇▇▇▇ and as Agent By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇  Name: ▇▇▇▇▇▇▇ ▇▇▇▇  Title: Managing Director
	CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Lender By:  /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇  Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇  Title: Managing Director By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇  Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇  Title: Managing Director

 

 

 

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EXECUTION VERSIONExhibit A

Warehouse Loan Agreement

as Amended by Amendment No. 2

 

U.S. $350,000,000

WAREHOUSE LOAN AGREEMENT,

dated as of April 1, 2021

among

GBXL I, LLC, as Borrower,

GBXL I (CANADA) LTD., as Canadian Subsidiary

 

THE BANKS AND OTHER LENDING INSTITUTIONS
FROM TIME TO TIME PARTY HERETO,

BANK OF AMERICA, N.A.,
as Agent,

and

WILMINGTON TRUST COMPANY,
as Collateral Agent and Depositary

 

 

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TABLE OF CONTENTS

Page

ARTICLE I DEFINITIONS 1

SECTION 1.01 Defined Terms 1

SECTION 1.02 Computation of Time Periods and Other Definitional Provisions 40

ARTICLE II THE CREDIT FACILITY 40

SECTION 2.01 Commitment to Lend 40

SECTION 2.02 Procedures for Borrowing 42

SECTION 2.03 Notice to Lenders; Funding of Loans 43

SECTION 2.04 Evidence of Loans 44

SECTION 2.05 Interest 46

SECTION 2.06 Repayment and Maturity of Loans 46

SECTION 2.07 Prepayments 46

SECTION 2.08 Adjustment of Commitments 51

SECTION 2.09 Liquidity Fee 54

SECTION 2.10 Pro-rata Treatment 54

SECTION 2.11 Sharing of Payments 55

SECTION 2.12 Payments; Computations; Proceeds of Collateral, Etc 55

SECTION 2.13 Adjustments to Advance Rate and Borrowing Base 56

SECTION 2.14 Interest Rate Risk Management 56

SECTION 2.15 Inability to Determine RatesReplacement of Term SOFR or Successor Rate 57

ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 60

SECTION 3.01 Taxes 60

SECTION 3.02 Illegality 63

SECTION 3.03 Increased Costs and Reduced Return 64

SECTION 3.04 Funding Losses 66

SECTION 3.05 Market Disruption 66

ARTICLE IV CONDITIONS 67

SECTION 4.01 Conditions to the Closing Date 67

SECTION 4.02 Conditions to Each Funding Date 69

ARTICLE V REPRESENTATIONS AND WARRANTIES 70

SECTION 5.01 Organization and Good Standing 70

SECTION 5.02 Power; Authorization; Enforceable Obligations 71

SECTION 5.03 No Conflicts 71

SECTION 5.04 No Default 71

SECTION 5.05 Financial Condition 72

SECTION 5.07 Title to Properties 73

SECTION 5.08 Litigation 73

SECTION 5.09 Taxes 73

SECTION 5.10 Compliance with Law 73

SECTION 5.11 ERISA 74

 

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TABLE OF CONTENTS

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Page

SECTION 5.12 Subsidiaries 74

SECTION 5.13 Governmental Regulations, Etc 74

SECTION 5.14 Purpose of Loans 75

SECTION 5.15 Environmental Matters 75

SECTION 5.16 Solvency 75

SECTION 5.17 Collateral Documents 75

SECTION 5.18 Ownership 76

SECTION 5.19 Lease Documents 76

SECTION 5.20 Sole Business of the Borrower 76

SECTION 5.21 Separate Corporate Structure; No Employees 76

SECTION 5.22 Leases 78

SECTION 5.23 Railcars 78

SECTION 5.24 Sanctioned Person 78

SECTION 5.25 Additional Representations 78

SECTION 5.26 Beneficial Ownership Certificate 79

SECTION 5.27 Uniform Commercial Code 79

ARTICLE VI AFFIRMATIVE COVENANTS 79

SECTION 6.01 Information 79

SECTION 6.02 Preservation of Existence and Franchises; Authorizations, Approvals and Recordations 81

SECTION 6.03 Books and Records 81

SECTION 6.04 ERISA 82

SECTION 6.05 Payment of Taxes and Other Debt; Tax Status 82

SECTION 6.06 Insurance; Certain Proceeds 82

SECTION 6.07 Operation, Use and Maintenance 84

SECTION 6.08 Replacement of Parts; Modifications and Improvements 85

SECTION 6.09 Use of Proceeds 86

SECTION 6.10 Audits/Inspections/Appraisals 86

SECTION 6.11 Follow-On Leases 87

SECTION 6.12 Accounts 87

SECTION 6.13 Manager 88

SECTION 6.14 Compliance with Separate Corporate Structure; Employees 89

SECTION 6.15 Required Disclosures 89

SECTION 6.16 Change of Name 89

SECTION 6.17 Lessee Consents 89

ARTICLE VII NEGATIVE COVENANTS 89

SECTION 7.01 Limitation on Debt 90

SECTION 7.02 Restriction on Liens 90

SECTION 7.03 Nature of Business 90

SECTION 7.04 Consolidation, Merger and Dissolution 90

SECTION 7.05 Asset Dispositions 90

SECTION 7.06 Investments 91

 

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TABLE OF CONTENTS

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SECTION 7.07 Restricted Payments, etc 91

SECTION 7.08 Transactions with Affiliates 91

SECTION 7.09 Fiscal Year; Organization and Other Documents 91

SECTION 7.10 Additional Negative Pledges 92

SECTION 7.11 Impairment of Security Interests 92

SECTION 7.12 No Amendments to the Lease Documents 92

SECTION 7.13 Lease Default 92

SECTION 7.14 Consolidation with Any Other Person 92

SECTION 7.15 Limitations on Employees 92

SECTION 7.16 Independence of Covenants 92

SECTION 7.17 Funds to Repay Loans 93

SECTION 7.18 Sanctioned Person 93

ARTICLE VIII OTHER COVENANTS 93

SECTION 8.01 Quiet Enjoyment 93

ARTICLE IX DEFAULTS 93

SECTION 9.01 Events of Default 93

SECTION 9.02 Acceleration; Remedies 95

ARTICLE X AGENCY PROVISIONS 97

SECTION 10.01 Appointment; Authorization 97

SECTION 10.02 Delegation of Duties 98

SECTION 10.03 Exculpatory Provisions 98

SECTION 10.04 Reliance on Communications 98

SECTION 10.05 Notice of Default 99

SECTION 10.06 Credit Decision; Disclosure of Information by the Agent or Collateral Agent 99

SECTION 10.07 Indemnification 100

SECTION 10.08 Agent and Collateral Agent in Their Individual Capacities 100

SECTION 10.09 Successor Agents 101

SECTION 10.10 Request for Documents 101

SECTION 10.11 Recovery of Erroneous Payments 101

ARTICLE XI WITHHOLDING GUARANTY 102

SECTION 11.01 Guaranty 102

SECTION 11.02 Guaranty Absolute and Unconditional 103

SECTION 11.03 Certain Waivers; Acknowledgements 104

SECTION 11.04 Subrogation 104

SECTION 11.05 Representations and Warranties 104

SECTION 11.06 Assignment 105

ARTICLE XII MISCELLANEOUS 102

 

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Page

SECTION 12.01 Notices and Other Communications 102

SECTION 12.02 No Waiver; Cumulative Remedies 103

SECTION 12.03 Amendments, Waivers and Consents 103

SECTION 12.04 Expenses 105

SECTION 12.05 Indemnification 106

SECTION 12.06 Successors and Assigns 108

SECTION 12.07 Confidentiality 112

SECTION 12.08 Set-off 113

SECTION 12.09 Interest Rate Limitation 113

SECTION 12.10 Counterparts 114

SECTION 12.11 Integration 114

SECTION 12.12 Survival of Representations and Warranties 114

SECTION 12.13 Severability 115

SECTION 12.14 Headings 115

SECTION 12.15 Marshalling; Payments Set Aside 115

SECTION 12.16 Performance by the Agent 115

SECTION 12.17 Third Party Beneficiaries 115

SECTION 12.18 No Proceedings 115

SECTION 12.19 Governing Law; Submission to Jurisdiction 116

SECTION 12.20 Waiver of Jury Trial 117

SECTION 12.21 [RESERVED] 117

SECTION 12.22 The Patriot Act 117

SECTION 12.23 Acknowledgement and Consent to Bail-In of EEA Financial Institutions 117

SECTION 12.24 Acknowledgement Regarding Any Supported QFCs 118

SECTION 12.25 Joint and Several Obligations 119

 

 

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TABLE OF CONTENTS

(continued)

 

SCHEDULES:

Schedule A	-	Industry Concentration Chart
Schedule 1.01	-	Lenders and Commitments
Schedule 5.02	-	Required Consents, Authorizations, Notices and Filings
Schedule 6.06	-	Insurance
Schedule 6.10	-	Agreed-Upon Procedures Audit
Schedule 12.01	-	Notice Addresses; Agent’s Office

 

EXHIBITS :

Exhibit A-1	-	Form of Request
Exhibit A-2	-	Form of Notice of Borrowing
Exhibit A-3	-	Form of Additional Collateral Certificate
Exhibit A-4	-	Form of Financing Notice
Exhibit A-5	-	Form of Monthly Report
Exhibit A-6	-	Form of Borrowing Base Certificate
Exhibit B	-	Form of Note
Exhibit C	-	Form of Assignment and Acceptance
Exhibit D-1	-	Form of Opinion of Counsel for the Facility Parties and the Manager
Exhibit D-2	-	[Reserved]
Exhibit D-3	-	Form of Opinion of Delaware Counsel for the Collateral Agent and Depositary
Exhibit D-4	-	[Reserved]
Exhibit D-5	-	[Reserved]
Exhibit D-6	-	[Reserved]
Exhibit D-7	-	[Reserved]
Exhibit D-8	-	[Reserved]
Exhibit D-9	-	[Reserved]
Exhibit E-1	-	Form of Security Agreement
Exhibit E-2	-	Form of Perfection Certificate
Exhibit E-3	-	Form of Payment Notice/Lessor Rights Notice
Exhibit E-4	-	Form of Notice of Lease Assignment
Exhibit F	-	Form of Depository Agreement
Exhibit G	-	[Reserved]
Exhibit H	-	Form of Management Agreement
Exhibit I	-	[Reserved]
Exhibit J-1	-	[Reserved]
Exhibit J-2	-	[Reserved]
Exhibit K	-	Form of Asset Contribution and Sale Agreement
Exhibit L	-	Form of Administrative Services Agreement
Exhibit M	-	Form of Officer’s Certificate

 

 

 

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WAREHOUSE LOAN AGREEMENT

This Warehouse Loan Agreement is dated as of April 1, 2021 and is among GBXL I, LLC, a Delaware limited liability company, GBXL I (CANADA) LTD., a British Columbia corporation, the banks and other lending institutions from time to time party hereto, BANK OF AMERICA, N.A., as Agent for the Lenders, and WILMINGTON TRUST COMPANY, in its capacity as Collateral Agent and Depositary for the Protected Parties referred to herein.

The parties hereto agree as follows:

“A.A.R.” means the Association of American Railroads, and its successors.

“Acceptable Derivatives Agreement” means one or more Derivatives Agreements with a term that extends at least until the anticipated Termination Date, in the form of any of the following, in each case with monthly settlement and having a Derivatives Percentage greater than 85.0%, but less than 115.0% on the date of such Derivatives Agreement, with such notional amount declining automatically according to a schedule which is consistent with the then anticipated principal repayments of the Loans (such that the Derivatives Percentage remains greater than 85.0% and less than 115.0% during the anticipated principal repayment period of the Loans):

“Accounts” means, collectively, the Collection Account, the Maintenance Reserve Account, the Modifications and Improvements Account, the Discretionary Account and the Liquidity Reserve Account.

“Additional Collateral Certificate” means a certificate substantially in the form of Exhibit A-3 hereto, with appropriate insertions and deletions or with such other changes as may be reasonably agreed to by the Agent and the Collateral Agent, and which certificate contains a description of the Railcars and related Leases which are to become Portfolio Railcars and Portfolio Leases, as the case may be.

 

 

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[Warehouse Loan Agreement]

“Adjusted Eurodollar Rate” means with respect to any Loan, for each Interest Period, the quotient obtained (rounded upward, if necessary, to the next higher 1/100th of 1%) by dividing (a) the rate set forth in the definition of LIBOR for such Interest Period by (b) 1.00 minus the Eurodollar Reserve Percentage.

“Adjusted Facility Amount” means the quotient of (i) the Committed Amount divided by (ii) the Maximum Advance Rate (expressed as a decimal).

“Administrative Services Agreement” means the Administrative Services Agreement, substantially in the form of Exhibit L hereto, dated as of April 1, 2021, between the Borrower and GBX Leasing.

“Advance Rate” means, as of any Calculation Date,

provided that, the Advance Rate with respect any Portfolio Railcar

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate” means, with respect to any Person, (i) any Person that directly, or indirectly through one or more intermediaries, controls such Person (including all directors and officers of such Person) (a “Controlling Person”) or (ii) any other Person which is controlled by or is under common control with a Controlling Person. As used herein, the term “control” means (i) with respect to any Person having voting shares or their equivalent and elected directors, managers or Persons performing similar functions, the possession, directly or indirectly, of the power to vote more than 50.00% of the Equity Interests having ordinary voting power of such Person, (ii) the ownership, directly or indirectly, of more than 50.00% of the Equity Interests in any Person or (iii) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting shares or their equivalent, by contract or otherwise.

 

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[Warehouse Loan Agreement]

“Agent” means Bank of America, N.A., in its capacity as agent for the Lenders hereunder and under the other Loan Documents, and its successor or successors in such capacity.

“Agent’s Office” means the Agent’s address and, as appropriate, account as set forth and identified as such in Schedule 11.01, or such other address and account as the Agent may from time to time notify to the Borrower and the Lenders.

“Agreed-Upon Procedures Audit” has the meaning set forth in Section 6.10(b).

“Aggregate FMV” means, as of any date of determination with respect to any specified group of Railcars, the aggregate of the Applicable Valuations of all such Railcars (including, if Aggregate FMV is calculated on a Funding Date, any such Railcars which will become Portfolio Railcars on such Funding Date, but excluding any such Railcars which will cease to be Portfolio Railcars at the time of such determination pursuant to Section 8.12 of the Security Agreement or otherwise).

“Agreement” means this Warehouse Loan Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time.

“Anti-Money Laundering Laws” has the meaning assigned to such term in Section 5.09(b).

“Applicable Independent Appraisal” means, with respect to any Railcars, the most recent Independent Appraisal of such Railcars delivered pursuant to Section 6.10(c)(i) or (ii).

“Applicable Law” means, with reference to any Person, all laws (foreign or domestic), statutes, rulings, codes, ordinances and treaties, including the FRA and the Interchange Rules, and all judgments, decrees, injunctions, writs and orders of any court, arbitrator or other Governmental Authority, and all rules, regulations, orders, interpretations, directives, licenses and permits of any governmental body, instrumentality, agency or other regulatory authority applicable to such Person or its property or in respect of its operations, and for the avoidance of doubt shall include any Existing Law (as defined in Section 3.03(b)).

“Applicable Rate” means for any day during any Interest Period, the sum of (a) the rate or rates set forth in the definition of the Adjusted Eurodollar Rate forTerm SOFR during such Interest Period , or any Successor Rate determined in accordance with Section 2.15, plus (b) the Facility Margin plus (c) at any time after the Revolving Termination Date, the Step-Up Margin.

“Applicable Valuation” means with respect to any Railcar on any date of calculation:

(x) the Depreciated Value of such Railcar on such date of calculation, if (A) the aggregate Depreciated Value of all Portfolio Railcars as of the date of the most recent Applicable Independent Appraisal of all Portfolio Railcars was less than (B) the aggregate Depreciated Purchase Price of all Portfolio Railcars as of the date of such Applicable Independent Appraisal; or

(y) the Depreciated Purchase Price of such Railcar on such date of calculation, if (A) the aggregate Depreciated Purchase Price of all Portfolio Railcars as of the date of

 

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[Warehouse Loan Agreement]

the most recent Applicable Independent Appraisal of all Portfolio Railcars was less than (B) the aggregate Depreciated Value of all Portfolio Railcars as of the date of such Applicable Independent Appraisal.

“Appraised Value”, with respect to any Railcar, means the amount set forth in the most recent Applicable Independent Appraisal with respect thereto as the amount, expressed in terms of currency, that may reasonably be expected for property exchanged between a willing buyer and a willing seller with equity to both, neither under any compulsion to buy or sell and both fully aware of all relevant, reasonably ascertainable facts.

“Approved Fund” means (i) with respect to any Committed Lender, an entity (whether a corporation, partnership, limited liability company, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is managed by such Committed Lender or an Affiliate of such Committed Lender, (ii) with respect to any Committed Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Committed Lender or by an Affiliate of such investment advisor, (iii) any Conduit Lender, and (iv) with respect to any Conduit Lender, any of its Support Parties.

“Asset Contribution and Sale Agreement” means the Asset Contribution and Sale Agreement dated as of April 1, 2021, substantially in the form of Exhibit K hereto, between GBX Leasing and the Borrower.

“Asset Disposition” means any sale, lease or other disposition by the Borrower (other than the lease of a Railcar pursuant to an Eligible Lease or Head Lease) of any Portfolio Railcar, Portfolio Lease or other item of Collateral, whether by sale, lease, transfer, Event of Loss, Condemnation or otherwise.

“Assignment and Acceptance” means an Assignment and Acceptance, substantially in the form of Exhibit C hereto, under which an interest of a Lender hereunder is transferred to an Eligible Assignee pursuant to Section 11.06(b).

“Availability Period” means the period from the Closing Date to the Revolving Termination Date.

“Available Commitment” means, with respect to any Committed Lender, the aggregate of such Committed Lender’s Commitment less the aggregate principal amount of outstanding Loans held by such Committed Lender (or any Conduit Lender designated by such Committed Lender) under this Agreement.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

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[Warehouse Loan Agreement]

“Bank of America” means Bank of America, N.A., as a Committed Lender.

“Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978, as amended, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdiction from time to time affecting the rights of creditors generally.

“Beneficial Ownership Certificate” means a certificate regarding beneficial ownership as required by the Beneficial Ownership Regulation, in substantially the form prescribed in the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Bill of Sale” means a bill of sale delivered to the Borrower from the seller with respect to a Railcar and, if applicable, any related Lease in connection with the Borrower’s purchase of such Railcar and related Lease from such Seller.

“Book Value” means, with respect to any Railcar, the book value of such Railcar determined in accordance with GAAP, as set forth in the books and records of the Manager as of the most recent Calculation Date.

“Borrower” means GBXL I, LLC, a Delaware limited liability company, and its successors.

“Borrower Change of Control” means either (i) GBX Leasing shall cease to own directly 100.00% of the Equity Interests of the Borrower, or (ii) the Borrower shall cease to own directly 100.00% of the Equity Interests of the Canadian Subsidiary, each on a fully diluted basis assuming the conversion and exercise of all outstanding Equity Equivalents (whether or not such securities are then currently convertible or exercisable).

“Borrowing” means a borrowing of Loans pursuant to Section 2.01 hereof.

“Borrowing Base” means, on any date with respect to the Portfolio and calculated on an aggregate basis (after giving effect to (i) the addition to the “Borrowing Base” of any and all Railcars to become Portfolio Railcars on such date and (ii) the reduction of the “Borrowing Base” in respect of any and all Railcars that will cease to be Portfolio Railcars on such date), a Dollar amount equal to the difference of:

(A) with respect to all Eligible Railcars that are Portfolio Railcars, the aggregate of:

(i) the applicable Advance Rate for each Eligible Railcar that is a Portfolio Railcar; times

(ii) the Applicable Valuation with respect to each such Eligible Railcar that is a Portfolio Railcar;

 

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[Warehouse Loan Agreement]

minus

(B) the Excluded Assets Amount on such date.

“Borrowing Base Certificate” means a certificate of the chief financial officer or chief accounting officer of each Facility Party, in the form of Exhibit A-6 hereto or such other form as may hereafter be agreed by the Borrower (and/or the Manager, as applicable) and the Agent, delivered to the Lenders pursuant to Section 2.02(b) or 6.01(d), as applicable, and setting forth in reasonable detail the calculation of the Borrowing Base as of the date required by such Sections and such other information required thereby.

“Business Day” means any day of the week, other than a Saturday or a Sunday, on which banks are open for business in London for the conduct of transactions in the London interbank market and on which commercial banks in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ are open for business and are not required or authorized by law, executive order or governmental decree to be closed.

“Calculation Date” means with respect to any Settlement Date, the last day of the calendar month immediately preceding such Settlement Date.

“Canadian Subsidiary” means GBXL I (Canada) Ltd., a British Columbia corporation, and its successors.

“Capital Contributions” means contributions of cash or property to the Borrower from its members.

“Capital Lease” of any Person means any lease of property (whether real, personal or mixed) by such Person as lessee which would, in accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of such Person.

“Cash Equivalents” means one or more of the following obligations which (i) are acquired at a purchase price of not greater than par, (ii) have a fixed principal amount due at maturity, if applicable, and (iii) unless full payment of principal is paid in cash upon the exercise of the option, do not include any embedded options (i.e., not callable, putable or convertible): (a) marketable direct obligations issued by, or fully and unconditionally guaranteed by, the United States Government or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition, (b) certificates of deposit, time deposits, eurocurrency time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any United States commercial bank having a long-term unsecured debt rating of at least “AA” by S&P and “Aa2” by ▇▇▇▇▇’▇ or, in substitution of ▇▇▇▇▇’▇ if ▇▇▇▇▇’▇ ceases publishing ratings of long-term senior unsecured debt of commercial banks, carrying an equivalent rating by another internationally recognized credit rating agency, (c) commercial paper of an issuer rated at the time of acquisition at least “A-1” by S&P and “P-1” by ▇▇▇▇▇’▇ or, in substitution of ▇▇▇▇▇’▇ if ▇▇▇▇▇’▇ ceases publishing ratings of commercial paper issuers generally, carrying an equivalent rating by an internationally recognized rating agency, and maturing within one year from the date of acquisition, (d) repurchase obligations of any commercial bank satisfying

 

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[Warehouse Loan Agreement]

the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States Government, (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at the time of acquisition at least “A-1” by S&P and “P-1” by ▇▇▇▇▇’▇, or, in substitution of ▇▇▇▇▇’▇ if ▇▇▇▇▇’▇ ceases publishing ratings of such state, commonwealth, territory, political subdivision, taxing authority or foreign government , carrying an equivalent rating by an internationally recognized rating agency, (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by a commercial bank satisfying the requirements of clause (b) of this definition or (g) shares of money market mutual or similar funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 thereunder and that, at the time of such investment, are rated “Aaa” by ▇▇▇▇▇’▇ and “AAA” by S&P (or carrying an equivalent rating by another internationally recognized rating agency in substitution of ▇▇▇▇▇’▇ if ▇▇▇▇▇’▇ ceases publishing ratings with respect to Cash Equivalents of the type described in this clause (g)) or invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. Each rating by S&P described in this definition must be an unqualified rating (i.e. one with no qualifying suffix), with the exception of ratings with regulatory indicators and unsolicited ratings.

“Cash Flow” means all amounts received by or on behalf of, or credited to the Borrower from any source under or in respect of a Lease, Head Lease or otherwise from the ownership or operation of the Portfolio, including, without limitation, Monthly Rent, service charges, Manager Advances, rentals, Railroad Mileage Credits, delivery costs reimbursed by a Lessee and cancellation or penalty payments, as well as all other amounts paid under each Lease or any other Lease Document as reimbursement, indemnity, fees or commissions, or on account of assumed financial responsibility or liability or otherwise, other than Excepted Payments.

“Casualty” means any Event of Loss or other casualty, loss, damage, destruction or other similar loss with respect to any Portfolio Railcar or other item of Collateral.

“Casualty Insurance Policy” means any insurance policy maintained by or on behalf of the Borrower covering losses with respect to Casualties involving one or more Portfolio Railcars or other items of Collateral.

“Casualty Proceeds” means all proceeds under any Casualty Insurance Policy, and all other insurance proceeds, damages, awards, claims and rights of action of the Borrower with respect to any Casualty.

“Closing Date” means April 1, 2021.

“CME” means CME Group Benchmark Administration Limited (or a successor administrator of the Term SOFR Screen Rate).

 

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“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as interpreted by the rules and Treasury Regulations issued thereunder, in each case as in effect from time to time. Reference to particular sections of the Code shall be construed also to refer to any successor sections.

“Collateral” means all of the property which is subject or is purported to be subject to the Liens granted by the Collateral Documents.

“Collateral Agent” means Wilmington Trust Company in its capacity as collateral agent and representative for the Protected Parties under the Security Agreement and the Depository Agreement.

“Collateral Deficiency” means, as of any date of determination, the Dollar amount of the excess, if any, of (x) the aggregate outstanding principal amount of the Loans (less the current balance of the Liquidity Reserve Account) as of such date over (y) the Borrowing Base calculated as of such date.

“Collateral Documents” means, collectively, the Security Agreement, each Perfection Certificate, the Depository Agreement, the GLC Payment Processing Agreement, the Asset Contribution and Sale Agreement, any additional pledges, security agreements, patent, trademark or copyright filings or mortgages required to be delivered pursuant to the Loan Documents and any instruments of assignment, control agreements, lockbox letters or other instruments or agreements executed pursuant to the foregoing.

“Collection Account” means the Collection Account established by the Depositary pursuant to the Depository Agreement.

“Commitment” means, with respect to any Committed Lender, the commitment of such Committed Lender, in an aggregate principal amount at any time outstanding of up to such Committed Lender’s Commitment Percentage of the Committed Amount, to make Loans in accordance with the provisions of Section 2.01, in each case as set forth on Schedule 1.01 or in the applicable Assignment and Acceptance as its Commitment, as any such amount may be increased or decreased from time to time pursuant to this Agreement.

“Commitment Percentage” means, for each Committed Lender, the percentage identified as its Commitment Percentage on Schedule 1.01 hereto, as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 11.06(b).

“Committed Amount” means $350,000,000 or such lesser amount to which the Committed Amount may be reduced pursuant to Section 2.08. Notwithstanding anything in any Transaction Document to the contrary, each of the Committed Lenders agrees (i) that the Committed Amount, as of the Closing Date, will be equal to the amount specified pursuant to the preceding sentence and (ii) it will undertake such action, in accordance with Section 11.06(b), necessary so that the proportion of (A) the outstanding portion of its respective Loans to the aggregate amount of all outstanding Loans is equal to (B) its Commitment Percentage.

 

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“Committed Lender” means a Lender listed on Schedule 1.01 and shown as having a Commitment hereunder as of the Closing Date or which thereafter acquires a Commitment hereunder in accordance with Section 11.06(b).

“Competitor of the Borrower” means (i) a Person who either (a) is engaged in the full service railcar leasing or manufacturing business or (b) has a material non-passive investment interest (whether held directly or indirectly) in, or is otherwise an Affiliate of, a Person that is engaged in the full service railcar leasing or manufacturing business; provided, however, that a Person which is a commercial bank, savings institution, insurance company, trust company or national banking association or an Affiliate of any thereof, or a Person regularly engaged (or a Person which is a Subsidiary of a Person regularly engaged) in the business of acting as the lessor or equity participant in a trust or statutory trust acting as the lessor in net financial leases, in each case acting for its own account, shall be deemed not to be a Competitor of the Borrower, unless either Facility Party has notified the Agent and each Lender in writing that such Person is a Competitor of the Borrower or (ii) any of the Persons listed in Schedule B hereto or their Affiliates.

“Condemnation” means any taking of property or assets, or any part thereof or interest therein, for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation or in any other manner.

“Condemnation Award” means all proceeds of any Condemnation or transfer in lieu thereof with respect to any Portfolio Railcar or other item of Collateral.

“Conduit Lender” shall mean any Lender which is designated as a Conduit Lender pursuant to Section 11.06(h).

“Conforming Changes” means, with respect to the use, administration of or any conventions associated with Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of Term SOFR, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Agent, to reflect the adoption and implementation of such applicable rate, and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

 

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“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any indenture, loan agreement, mortgage, deed of trust, contract or other agreement, instrument or undertaking to which such Person is a party or by which it or any of its property or assets is bound. Contractual Obligation does not include obligations under the Transaction Documents.

“Corporate Base Rate” shall mean for any day, the higher of (i) the prime rate per annum announced from time to time by Bank of America in New York in effect on such day and (ii) the Federal Funds Rate plus 100 basis points. (The Corporate Base Rate is not intended to represent the lowest rate charged by Bank of America for extensions of credit.)

“Credit Exposure”, as applied to each Lender, means (i) in the case of a Committed Lender at any time prior to the termination of the Commitments, the difference of (A) the Commitment Percentage of such Lender multiplied by the Committed Amount less (B) the aggregate principal amount of all outstanding Loans funded by a Conduit Lender on behalf of such Committed Lender, and (ii) in the case of a Conduit Lender and in the case of a Committed Lender at any time after the termination of the Commitments, the aggregate principal balance of the outstanding Loans of such Lender.

“Credit Obligations” means, without duplication:

together in each case with all renewals, modifications, consolidations or extensions thereof.

 

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[Warehouse Loan Agreement]

“Creditor” means, without duplication, each Lender, each Derivatives Counterparty, the Agent and each Indemnitee and their respective successors and assigns, and “Creditors” means any two or more of such Creditors.

“Cuban Assets Control Regulations” has the meaning assigned to such term in Part 515 of Title 31 of the Code of Federal Regulations.

“Daily Simple SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).

“Debt” of any Person means at any date, without duplication, (i) all obligations 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 under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (iv) all obligations of such Person to pay the deferred purchase price of property or services (other than current accounts payable arising in the ordinary course of business), (v) the capitalized amount of all Capital Leases of such Person that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (vi) all obligations (other than obligations in respect of like kind exchanges) of such Person in respect of securities repurchase agreements or otherwise to purchase securities or other property which arise out of or in connection with the sale of the same or substantially similar securities or property, (vii) all non-contingent obligations (and, for purposes of Section 7.01, all contingent obligations) of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, bankers’ acceptance or similar instrument, (viii) all obligations of others secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) a Lien on, or payable out of the proceeds of production from, any property or asset of such Person, whether or not such obligation is assumed by such Person; provided that the amount of any Debt of others that constitutes Debt of such Person solely by reason of this clause (viii) shall not for purposes of this Agreement exceed the greater of the book value or the fair market value of the properties or assets subject to such Lien, (ix) all Guaranty Obligations of such Person, (x) all Disqualified Stock of such Person, (xi) all Derivatives Obligations of such Person and (xii) the Debt of any other Person (including any partnership in which such Person is a general partner and any unincorporated joint venture in which such Person is a joint venturer) to the extent such Person would be liable therefor under Applicable Law or any agreement or instrument by virtue of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Debt provide that such person shall not be liable therefor.

“Debt Service Coverage Ratio” means, with respect to any Settlement Date, the ratio of:

 

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less the sum of the aggregate amount of

in each case for each of the three most recent Measuring Periods ended on or prior to the Calculation Date immediately preceding such Settlement Date, to

 

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in each case for each of the three most recent Measuring Periods ended on or prior to the Calculation Date immediately preceding such Settlement Date.

“Default” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.

“Default Margin” means 375 basis points.

“Depositary” means Wilmington Trust Company, or a successor thereto appointed pursuant to the Depository Agreement.

“Depositary’s Office” means the Depositary’s address as set forth and identified as such in Schedule 11.01, or such other address as the Depositary may from time to time notify to the Agent, the Borrower and the Lenders.

“Depository Account” means the Depository Account established by the Depositary pursuant to the Depository Agreement.

“Depository Agreement” means the Depository Agreement, substantially in the form of Exhibit F hereto, dated as of April 1, 2021, among the Borrower, the Agent, the Collateral Agent, the Manager and the Depositary.

“Depreciated Appraised Value” means, with respect to any Portfolio Railcar at any time, an amount equal to the Appraised Value of such Portfolio Railcar minus the product of

“Depreciated Value” means, with respect to any Portfolio Railcar at any time, the lesser of the Depreciated Appraised Value and Book Value for such Railcar.

“Depreciated Purchase Price” means, with respect to any Portfolio Railcar at any time, an amount equal to the Original Purchase Price of such Portfolio Railcar minus the product of

 

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“Derivatives Agreement” means (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement.

“Derivatives Counterparty” means (a) any Lender or Affiliate of a Lender, or (b) any entity as approved by the Agent in its sole discretion.

“Derivatives Notional Amount” means the aggregate notional amount in effect on any day under all Derivatives Agreements entered into by the Borrower.

“Derivatives Obligations” of any Person means all obligations (including, without limitation, any amounts which accrue after the commencement of any bankruptcy or insolvency proceeding with respect to such Person, whether or not allowed or allowable as a claim under the Bankruptcy Code) of such Person in respect of any Derivatives Agreement, excluding any amounts which such Person is entitled to set-off against its obligations under Applicable Law.

“Derivatives Percentage” means, for any date, the quotient of (a) the Derivatives Notional Amount, as reflected in each “confirmation” (or such other form of documentation as may be approved by the Agent, in writing, from time to time), entered into between the Borrower and a Derivatives Counterparty (inclusive of any new Derivatives Agreements) divided by (b) the aggregate principal amount of all outstanding Loans as of such date.

“Derivatives Termination Value” means, at any date after the termination of any Derivatives Agreement, after taking into account the effect of any legally enforceable netting agreements relating to such Derivatives Agreement, the amount payable by (in which case the amount shall be positive) or payable to (in which case the amount shall be negative), the Borrower as a result of the termination of such Derivatives Agreement.

“Discretionary Account” means the Discretionary Account established by the Depositary pursuant to the Depository Agreement.

“Disqualified Stock” of any Person means any Equity Interest of such Person which by its terms (or by the terms of any security for which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event or otherwise (including an

 

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event which would constitute a Change of Control), (A) matures or is mandatorily redeemable or subject to any mandatory repurchase requirement, pursuant to a sinking fund or otherwise, (B) is convertible into or exchangeable for Debt or Disqualified Stock or (C) is redeemable or subject to any repurchase requirement arising at the option of the holder thereof, in whole or in part, on or prior to the first anniversary of the Termination Date.

“Dollars” and the sign “$” means lawful money of the United States.

“Early Amortization Event” means, as of any Settlement Date beginning with the fourth Settlement Date following the Closing Date, the Debt Service Coverage Ratio is less than 1.15 to 1.00.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) above, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or clause (b) above and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligible Assignee” means (i) any Lender, (ii) any Affiliate of a Lender, (iii) any Approved Fund and (iv) any other Person (other than a natural Person) approved by the Borrower in its reasonable discretion (so long as no Event of Default has occurred and is continuing).

“Eligible Lease” means, as of any date of determination, a Lease:

 

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[Warehouse Loan Agreement]

“Eligible Railcar” means, as of any date of determination,

“Environmental Laws” means any current or future legal requirement of any Governmental Authority pertaining to (i) the protection of health, safety, and the environment, (ii) the conservation, management, damage to or use of natural resources and wildlife, (iii) the protection or use of surface water and groundwater or (iv) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic substance or material and includes, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of

 

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[Warehouse Loan Agreement]

1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq., any analogous implementing or successor law, any comparable state, local and regional laws, and any amendment, rule, regulation, order or directive issued thereunder.

“Equity Equivalents” means with respect to any Person any rights, warrants, options, convertible securities, exchangeable securities, indebtedness or other rights, in each case exercisable for or convertible or exchangeable into, directly or indirectly, Equity Interests of such Person or securities exercisable for or convertible or exchangeable into Equity Interests of such Person, whether at the time of issuance or upon the passage of time or the occurrence of some future event.

“Equity Interests” means all shares of capital stock, partnership interests (whether general or limited), limited liability company membership interests, beneficial interests in a trust and any other interest or participation that confers on a Person the right to receive a share of profits or losses, or distributions of assets, of an issuing Person, but excluding any debt securities convertible into such Equity Interests.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute, as interpreted by the rules and regulations thereunder, all as the same may be in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means: (i) a Reportable Event with respect to a Pension Plan; (ii) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA); (iii) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (iv) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (v) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (vi) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

 

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[Warehouse Loan Agreement]

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Eurodollar Reserve Percentage” means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any other entity succeeding to the functions currently performed thereby) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding five billion Dollars in respect of “Eurocurrency liabilities”, whether or not a Lender has any Eurocurrency liabilities subject to such reserve requirement at that time. Loans shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for prorations, exceptions or offsets that may be available from time to time to a Lender. The Adjusted Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage.

“Event of Default” has the meaning set forth in Section 9.01.

“Event of Loss”, with respect to any Portfolio Railcar, means any of the following events:

 

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“Excepted Payments” means amounts payable to or for the benefit of the Borrower, the Manager, the Agent, the Collateral Agent or any Lender (or any similar party as defined and used in such Lease), including, without limitation, (i) proceeds of public liability insurance (or other liability insurance maintained by or on behalf of the Borrower for its own account) payable to or for the benefit of the Borrower or the Lessee (or governmental indemnities in lieu thereof) and (ii) any rights to enforce and collect the same, but excluding, for the avoidance of doubt, payments for the use of, the loss of use of, damage to, or compensation for any loss of acquisition of any Portfolio Railcar.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Excluded Assets Amount” means, as of any date of determination, the sum (without duplication) of the following amounts (including in such calculation amounts in respect of Eligible Railcars which will become Portfolio Railcars on such date, but excluding amounts in respect of any Eligible Railcars which will cease to be Portfolio Railcars on or before such date pursuant to Section 8.12 of the Security Agreement or otherwise):

 

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[Warehouse Loan Agreement]

 

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[Warehouse Loan Agreement]

“Facility Margin” means 200185 basis points.

 

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[Warehouse Loan Agreement]

“Facility Party” means each of the Borrower and the Canadian Subsidiary, and “Facility Parties” means both of the foregoing.

“Failed Lender” has the meaning set forth in Section 2.03(e).

“Failed Loan” has the meaning set forth in Section 2.03(e).

“Failed Loan Amount” has the meaning set forth in Section 2.03(e).

“Fair Market Value” means, with respect to any Railcar, the lesser of (i) the Depreciated Appraised Value of such Railcar and (ii) the Depreciated Purchase Price of such Railcar.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements entered into in connection with the implementation of such Sections.

“Federal Funds Rate” means for any day the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Bank of America, N.A., on such day on such transactions as determined by the Agent.

“Financing Notice” means a notice in substantially the form of Exhibit A-4 hereto, with appropriate insertions.

“Follow-On Lease” has the meaning specified in Section 6.11.

“FRA” means the Federal Railroad Administration Rules and Regulations, as such regulations are amended from time to time, or corresponding provisions of future regulations.

“Full Service Lease” means a Lease under which the lessor thereunder is generally obligated to perform maintenance obligations with respect to the Railcars subject thereto.

“Funding Date” means each date on which a Loan is made to the Borrower in accordance with this Agreement.

“Funding Losses” has the meaning set forth in Section 3.04.

 

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[Warehouse Loan Agreement]

“Funding Package” means with respect to each Railcar:

 

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provided that to the extent one or more Lease Documents relating to a Railcar that is or is intended to be subject to a Lease that will become a Portfolio Lease on the applicable Funding Date has not been executed at the time such Funding Package is delivered to the Agent, drafts of such documents may be included in such Funding Package, and provided, further, that if drafts of the foregoing are submitted, final versions of such documents must be received by the Agent at least three days prior to the applicable Funding Date.

“GAAP” means at any time generally accepted accounting principles as then in effect in the United States, applied on a basis consistent (except for changes with which the independent public accountants of GBX have concurred) with the financial statements of GBX delivered to the Agent and each of the Lenders pursuant to Section 6.01(a) and (b).

“GBX” means The Greenbrier Companies, Inc., an Oregon corporation, and its successors and permitted assigns.

“GBX Leasing” means GBX Leasing, LLC, a Delaware limited liability company, and its successors and permitted assigns.

“GLC Payment Processing Account” means that certain “GLC Lease Payment Processing Trust Account” owned by the GLC Lease Payment Processing Trust and established with Wilmington Trust Company as identified in the GLC Payment Processing Agreement.

“GLC Payment Processing Agreement” means that certain Payment Processing Agreement dated as of July 16, 2016 (as amended, supplemented, restated or replaced from time to time) among Greenbrier Leasing Company LLC, GLC Lease Payment Processing Trust, Wilmington Trust Company and the owner party thereto from to time.

“GLC Payment Processing Agreement Severance” has the meaning set forth in Section 9.02(f).

“GMS” means Greenbrier Management Services, LLC, a Delaware limited liability company.

“Governmental Authority” means any federal, state, local, provincial or foreign government, authority, agency, central bank, quasi-governmental or regulatory authority, court or other body or entity, and any arbitrator with authority to bind a party at law.

“Granting Lender” has the meaning specified in Section 11.06(h).

“Greenbrier Mark” means a Mark designated “GBRX,” “AOKX,” “AOK,” or any other railcar Mark designation registered with the A.A.R. under the name of ▇▇▇▇▇▇▇▇, Manager or their respective Affiliates.

 

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“Guaranty Obligation” means, with respect to any Person, without duplication, any obligation (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guarantying, intended to guaranty, or having the economic effect of guarantying, any Debt of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (i) to purchase any such Debt or other obligation or any property constituting security therefor, (ii) to advance or provide funds or other support for the payment or purchase of such indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Debt of such other Person, (iii) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Debt or (iv) to otherwise assure or hold harmless the owner of such Debt or obligation against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Debt in respect of which such Guaranty Obligation is made.

“Head Lease” means, with respect to any Railcar, a head lease entered into between the Borrower, as lessor, and Canadian Subsidiary, as lessee, and any and all supplements and amendments related thereto.

“Hedging Event” means:

“Illegality Event” has the meaning specified in Section 3.02.

“Increased Cost” has the meaning specified in Section 3.03(a).

“Indemnified Liabilities” has the meaning set forth in Section 11.05.

“Indemnified Taxes” has the meaning set forth in Section 3.01(a).

“Indemnitee” has the meaning set forth in Section 11.05.

 

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[Warehouse Loan Agreement]

“Independent Appraisal” means a document executed by an Independent Appraiser setting forth the Appraised Value of the item of equipment being appraised and the data and explanation, all in reasonable detail, supporting such Appraised Value.

“Independent Appraiser” means Railroad Appraisal Associates, or, in substitution of the foregoing appraiser, any independent railcar appraisal expert of recognized standing selected by the Borrower and consented to by the Agent, with the consent of the Majority Lenders; provided that the Agent may select such substitute in its sole discretion so long as a Default, a Manager Event of Default or an Event of Default shall have occurred and be continuing.

“Industry” means any industry listed in column I of Schedule A hereto.

“Industry Concentration Percentage” means, with respect to an Industry Group, the percentages listed in column II of Schedule A hereto that correspond to the Industry of such Industry Group.

“Industry Group” means Railcars that operate primarily in a particular Industry (as certified by each Facility Party in each Borrowing Base Certificate).

“Insolvency Event” means any condition or event set forth in Section 9.01(g).

“Interchange Rules” means the interchange rules and supplements thereto promulgated by the A.A.R., as in effect from time to time.

“Interest Period” means (i) initially, the period from the Closing Date to the first Calculation Date following the Closing Date, and (ii) thereafter, the period from the last day of the immediately preceding Interest Period to the next succeeding Calculation Date; provided that the final Interest Period shall end on but exclude the Termination Date.

“Investment” in any Person means (i) the acquisition (whether for cash, property, services, assumption of Debt, securities or otherwise) of assets, Equity Interests, bonds, notes, debentures, time deposits or other securities of such other Person, (ii) any deposit with, or advance, loan or other extension of credit to or for the benefit of such Person (other than deposits made in connection with the purchase of equipment or inventory in the ordinary course of business) or (iii) any other capital contribution to or investment in such Person, including by way of Guaranty Obligations of any obligation of such Person, any support for a letter of credit issued on behalf of such Person incurred for the benefit of such Person or any release, cancellation, compromise or forgiveness in whole or in part of any Debt owing by such Person.

“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

“Lease” means, with respect to any Railcar, (i) any lease entered into by the Borrower, as lessor, and any and all supplements and amendments related thereto or (ii) any such lease transferred to the Borrower pursuant to a Sale Agreement.

 

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“Lease Default” means the occurrence of any default (other than a default which has been waived in compliance with Section 7.13, excluding the proviso therein) under a Lease which is not or has not become, through the giving of notice and/or passage of time or otherwise, a Lease Event of Default.

“Lease Documents” means (i) each of the Leases, Notices of Lease Assignments and Sale Agreements and (ii) each other document, certificate or opinion delivered or caused to be delivered to or for the benefit of the Borrower pursuant thereto.

“Lease Event of Default” means any default (other than a default which has been waived by the Borrower) under a Lease which, through the giving of notice, the passage of time or otherwise, has become an “event of default” or similar term (as defined and used in such Lease) thereunder, it being the intention that a Lease Event of Default shall mean a default under a Lease as to which the cure period, if any, has expired or which has no cure period.

“Lender” means each Committed Lender, Conduit Lender and each Eligible Assignee which acquires or funds a Commitment or Loan pursuant to Section 11.06(b) or 11.06(h), and their respective successors.

“Lessee” means any lessee under any Lease.

“Lessee Consent” means, with respect to any Lease, a consent, executed by the respective Lessee, to the assignment of such Lease to the applicable Borrower and to the grant of the security interest in such Lease to the Collateral Agent, in each case without any material qualifications.

“Lessee Consent Requirements” has the meaning set forth in Section 6.17.

“LIBOR” means:

(a) for any Interest Period, the rate per annum equal to the rate determined by the Agent to be the offered rate that appears on the page of the Reuters screen (or any successor thereto) that displays the ICE Benchmark Rates for one-month deposits in Dollars (for delivery on the first day of such Interest Period), determined as of approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period; or

(b) if the rate referred to in clause (a) above does not appear on such Reuters page or service or such page or service shall cease to be available, the rate per annum equal to the rate determined by the Agent to be the offered rate that appears on such other page or service that displays the ICE Benchmark Rates for one-month deposits in Dollars (for delivery on the first day of such Interest Period), determined as of approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period; or

(c) if the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by the Agent as the rate of interest (rounded upwards to the next 1/16th of 1%) at which one-month deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Loans held by Bank of America, N.A., as would be offered by the principal London Office of Bank of America to major

 

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banks in the offshore Dollar market at their request at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period; or

(d) if the rates referenced in the preceding clauses (a), (b) and (c) are not available or are not established for any reason for any Interest Period, “LIBOR” shall equal the Corporate Base Rate for each day during such Interest Period;

provided, that, if the result of the foregoing is that LIBOR would be a rate less than zero for any Interest Period, it shall be deemed to be zero for such Interest Period.

“LIBOR Replacement Date” has the meaning specified in Section 2.15.

“LIBOR Successor Rate” has the meaning specified in Section 2.15(a).

“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Corporate Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of Business Day, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).

“Lien” means, with respect to any asset, any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement or memorandum of lien under the Uniform Commercial Code or comparable laws of any jurisdiction), including the interest of a purchaser of accounts receivable, chattel paper, payment intangibles or promissory notes. For the avoidance of doubt, a security interest granted by a Lessee on such ▇▇▇▇▇▇’s leasehold interest with respect to any Railcar shall not be a “Lien” for purposes of this Agreement so long as such grant would not entitle the grantee to any interest in such Railcar (other than an interest in the Lessee’s leasehold interest as evidenced by the Lease) under Applicable Law.

“Liquidity Fee” has the meaning set forth in Section 2.09.

“Liquidity Reserve Account” means the Liquidity Reserve Account established by the Depositary pursuant to the Depository Agreement.

“Liquidity Reserve Target Amount”, as calculated on any Calculation Date, means an amount equal to six times the sum of (i) the aggregate interest expense payable on the Loans for

 

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the Interest Period ending on such Calculation Date (which shall be calculated on the basis of a 360-day year consisting of 12 months of 30 days each) minus (ii) any amounts (other than any Derivatives Termination Value) owed to the Borrower as of the related Settlement Date under any Derivatives Agreement plus (iii) any amounts (other than any Derivatives Termination Value) owed by the Borrower as of the related Settlement Date under any Derivatives Agreement (for purposes of this calculation, the amounts referred to in clauses (ii) and (iii) shall only include amounts accruing during the Interest Period as to which the amount in clause (i) is computed).

“Loan” means a loan made under Section 2.01.

“Loan Documents” means this Agreement, the Notes and the Collateral Documents, collectively, and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto, in each case as the same may be amended, modified or supplemented from time to time.

“Maintenance Reserve Account” means the Maintenance Reserve Account established by the Depositary pursuant to the Depository Agreement.

“Majority Lenders” means, collectively, Lenders whose aggregate Credit Exposure constitutes more than 50.00% of the Credit Exposure of all Lenders at such time.

“Management Agreement” means the Rail Equipment Services Agreement, substantially in the form of Exhibit H hereto, dated as of the date hereof, between the Borrower, the Canadian Subsidiary and the Manager.

“Management Documents” means the Management Agreement and the Administrative Services Agreement.

“Manager” means GMS, and its successors and permitted assigns.

“Manager Advances” means any advance (other than any advance giving rise to a Reimbursement Amount) made by the Manager (from time to time in the Manager’s sole discretion) to the Borrower in respect of one or more delinquent Lease payments which the Manager reasonably determines will ultimately be recoverable to be deposited in the Collection Account on any Settlement Date or otherwise. Outstanding Manager Advances shall bear interest at a rate per annum equal to the rate set forth in clause (i) of the definition of the Applicable Rate and shall be repaid on each Settlement Date in the order of priority of payments set forth in the applicable provisions of Section 2.07(c).

“Manager Event of Default” means a “Manager Termination Event” as defined in the Management Agreement.

“Manager’s Fee” means as of any Settlement Date an amount equal to (i) the Reimbursable Amounts and (ii) either (a) compensation payable to Manager pursuant to Section 7(A) of the Management Agreement, without giving effect to any adjustment, amendment or other modification thereto not expressly approved in writing by the Agent (acting with the prior written consent of the Majority Lenders), if the Manager is GMS or one of its Affiliates or (b) the Monthly Rent actually collected under each Portfolio Lease by the Manager on behalf of the

 

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Company for such calendar month multiplied by either (x) 5.0% or (y) such other percentage as may be agreed among the Successor Manager, the Borrower and each of the Committed Lenders, if the Manager is not GMS, the Agent or one of their Affiliates.

“Manufacturer” means the relevant manufacturer of each Railcar.

“Margin Stock” means “margin stock” as such term is defined in Regulation U.

“Market Disruption Event” has the meaning set forth in Section 3.05.

“Marks” means identification marks of Railcars.

“Material Adverse Effect” means, with respect to any Facility Party, any event or circumstance which will have a material adverse effect, individually or in the aggregate with other events or circumstances, on (i) the operations, business, properties or condition (financial or otherwise) of any Facility Party (after taking into account any applicable insurance and any applicable indemnification (to the extent the provider of such insurance or indemnification has the financial ability to support its obligations with respect thereto and is not disputing or refusing to acknowledge the same)), considered either individually or as a whole, (ii) the ability of any Facility Party to consummate the transactions contemplated hereby to occur on the Closing Date, (iii) the ability of any Facility Party to perform any of its obligations under any Transaction Document, (iv) the validity or enforceability of the rights and benefits of the Lenders under any Transaction Document, (v) the collectability of all or a material portion of the receivables originated by, or transferred to, such Person or the collections or related rights related thereto or any other Collateral, or (vi) the ability of the Manager, or any replacement or successor to it, to service or administer the Railcars, receivables, collections or related security.

“Maturity Date” means the date that is the second anniversary of the Revolving Termination Date.

“Maximum Advance Rate” means, as of any date of calculation, (x) 75.0% (if the weighted average age of all the Eligible Railcars that are Portfolio Railcars from their respective dates of manufacture is less than or equal to eight (8) years) or (y) 72.50% (if the weighted average age of all the Eligible Railcars that are Portfolio Railcars from their respective dates of manufacture is greater than eight (8) years).

“Measuring Period”, as determined with respect to any Settlement Date, means the period from the second preceding Calculation Date to the then most recent Calculation Date.

“Modifications and Improvements Account” means the Modifications and Improvements Account established by the Depositary pursuant to the Depository Agreement.

“Monthly Depreciation” means with respect to any Measuring Period, the aggregate depreciation expense of the Borrower for such Measuring Period in respect of the Portfolio Railcars, calculated for each such Portfolio Railcar as the product of (i)(a) from the Closing Date until the Revolving Termination Date, 0.214% and (b) for the period from the Revolving Termination Date until the Maturity Date, 0.417% and (ii) the Original Purchase Price for such Portfolio Railcar based upon the Original Purchase Price therefor paid by the Borrower (in the

 

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case of Portfolio Railcars purchased by the Borrower from a seller other than GBX Leasing or an Affiliate thereof) or GBX Leasing (in the case of Portfolio Railcars transferred to the Borrower under the Asset Contribution and Sale Agreement).

“Monthly Rent” means the aggregate amount of monthly “Basic Rent” payments (or other similar term used to describe scheduled monthly payments) actually paid by each Lessee under the applicable Lease plus the aggregate amount (if any) applied from Security Deposits to cover such “Basic Rent” payments; provided that if any Lease requires scheduled payments of rent other than on a monthly basis, an amount of such rent shall be allocated to each month on a pro rata basis for the purpose of determining the aggregate amount of “Monthly Rent”.

“Monthly Report” means a report by the Manager in substantially the form of Exhibit A-5 hereto or such other form as may hereafter be agreed by the Majority Lenders, the Manager and the Agent, with appropriate insertions, or with such other non-material changes as may be reasonably agreed to by the Agent.

“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc., a Delaware corporation, and its successors.

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“Net Cash Proceeds” means:

 

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“Net Lease” means a Lease under which the lessee thereunder is generally obligated to perform maintenance obligations with respect to the Railcars subject thereto.

“Non-U.S. Lender” has the meaning set forth in Section 3.01(d).

“Note” means a promissory note, substantially in the form of Exhibit B hereto, evidencing the obligation of the Borrower to repay outstanding Loans, as such note may be amended, modified, supplemented, extended, renewed or replaced from time to time.

“Notice of Borrowing” means a request by the Borrower for a Borrowing, substantially in the form of Exhibit A-2 hereto.

“Notice of Lease Assignment” means a Notice of Lease Assignment, substantially in the form of Exhibit E-4 hereto.

“Obligations” means, at any date, (i) all Credit Obligations and (ii) all Derivatives Obligations of the Borrower owed or owing to any Derivatives Counterparty.

“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Off-Lease” means, with respect to any Railcar, a Railcar that has not been subject to a Lease for sixty (60) days or more and is not subject to a binding lease proposal or letter of intent.

“On-Lease” means, with respect to any Railcar, any Railcar that is not Off-Lease.

“Organization Documents” means: (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (ii) with respect to any limited liability company, the certificate of formation and operating agreement (or articles of organization, as the case may be); and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state or other jurisdiction of its formation, in each case as amended from time to time.

“Original Purchase Price” means, with respect to any Railcar at any time, the original purchase price of such Railcar paid by the Borrower (in the case of Railcars purchased by the Borrower from a seller other than GBX Leasing) or GBX Leasing (in the case of Railcars transferred to the Borrower under the Asset Contribution and Sale Agreement).

“Other Taxes” has the meaning set forth in Section 3.01(b).

“Part” or “Parts” means all appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment of whatever nature, which may from time to time be installed on, incorporated in or attached to, a Railcar and, so long as such items remain subject to this

 

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Agreement, all such items which are subsequently removed therefrom and which are owned by the Borrower.

“Participant Register” has the meaning set forth in Section 11.06(e).

“Patriot Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended and supplemented from time to time.

“Payment Notice/Lessor Rights Notice” has the meaning set forth in the Form of Payment Notice/Lessor Rights Notice in the form of Exhibit E-3 hereto.

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or all of its functions under ERISA.

“Pension Plan” means an “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

“Perfection Certificate” means a certificate, substantially in the form of Exhibit E-2 to this Agreement, completed and supplemented with the schedules and attachments contemplated thereby to the satisfaction of the Agent and duly executed by a Responsible Officer of the Borrower.

“Permit” means any license, permit, franchise, right or privilege, certificate of authority or order, or any waiver of the foregoing, issued or issuable by any Governmental Authority.

“Permitted Liens” means with respect to any Portfolio Railcar: (i) the Liens granted by the Borrower to the Collateral Agent under the Loan Documents; (ii) the respective rights of a Lessee under the Lease with respect to such Portfolio Railcar (including, for the avoidance of doubt, the rights of any sublessee of the Lessee, to the extent such sublease was entered into in accordance with the Lease); (iii) the rights of Canadian Subsidiary under a Head Lease with respect to such Portfolio Railcar; (iv) Liens for Taxes payable by the Borrower either not yet due or being contested in good faith by appropriate proceedings diligently conducted so long as (x) such proceedings do not involve any imminent danger of the sale, forfeiture or loss of such Portfolio Railcar or any interest therein and (y) adequate reserves (maintained on a fleet-wide basis for all Railcars owned by GBX and its Subsidiaries) have been established in accordance with GAAP with respect to such Taxes; (v) materialmen’s, suppliers’, mechanics’, workmen’s, repairmen’s, employees’ or other like Liens arising in the ordinary course of business for amounts the payment of which is either not yet delinquent or is being contested in good faith by appropriate proceedings diligently conducted so long as (x) such proceedings do not involve any imminent danger of the sale, forfeiture or loss of such Portfolio Railcar or any interest therein and (y) adequate reserves (maintained on a fleet-wide basis for all Railcars owned by GBX and its Subsidiaries) have been established in accordance with GAAP with respect to such amounts; (vi) Liens arising out of judgments or awards against the Borrower that do not give rise to any

 

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Default or Event of Default and with respect to which there shall have been secured a stay of execution pending such appeal or review; and (vii) customary salvage and similar rights of insurers under policies of insurance maintained with respect to the Collateral.

“Person” means an individual, a corporation, a partnership, an association, a limited liability company, a trust or an unincorporated association or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Physical Inspection Report” means with respect to each Railcar, a physical inspection report of an independent inspector mutually acceptable to the Borrower and the Agent, which report shall set forth, among other things, any material unrepaired damage or maintenance deficiencies and the total number of hours and miles with respect to such Railcar.

“Portfolio” means, collectively, all of the Portfolio Railcars and the Portfolio Leases.

“Portfolio Lease” means a Lease with respect to a Portfolio Railcar.

“Portfolio Railcar” means a Railcar which is owned by the Borrower and which has been funded in whole or in part by a Loan hereunder or included as a Replacement Railcar or otherwise added to the Portfolio in accordance with Section 2.02(a) and not released from the Lien of the Security Agreement pursuant to Section 8.12 of the Security Agreement or otherwise.

“Pre-Adjustment Successor Rate” has the meaning specified in Section 2.15(a).

“Prohibited Nations Acts” means the Trading with the Enemy Act, 50 U.S.C. app. §§ 1-44 (2006), the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701- 1707 (2006), the USA Patriot Act, the Cuban Liberty and Democratic Solidarity Act (▇▇▇▇▇-▇▇▇▇▇▇ Act), Pub. L. No. 104-114, 110 Stat. 785 (1996), related regulations issued by OFAC or the U.S. Department of State, including the Cuban Assets Control Regulations in each case as may be amended or updated from time to time, and any similar acts or governmental actions of the United States to the extent applicable (including but not limited to economic or financial sanctions, sectoral sanctions, trade embargoes and anti-terrorism laws).

“Protected Party” means, without duplication, the Agent, the Collateral Agent, the Depository, each Creditor, each Support Party and any participant, successor or permitted assign of any thereof.

“Purchase Price” means, with respect to any Railcar, the aggregate purchase price payable by the Borrower under the applicable Sale Agreement for such Railcar, as such purchase price is certified in the applicable Request.

“Railcar” means a covered ▇▇▇▇▇▇ car, tank car, boxcar, flat car or other railcar or unit of railroad rolling stock (other than a locomotive), including (i) any and all Parts relating thereto and (ii) any Replacement Railcars and any and all Parts relating thereto, together with any and all accessions, additions, improvements and replacements from time to time incorporated or installed in any item thereof and together with all options, warranties, service contracts, program services, test rights, maintenance rights, support rights, improvement rights and indemnifications relating to any of the foregoing.

 

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“Railcar Documentation” means with respect to each Railcar, (i) the documents (including microfilm), data, manuals, diagrams and other written information originally furnished by the Manufacturer and/or the seller thereof on or about the relevant Funding Date, (ii) the documents, records, logs and other data maintained (or required to be maintained) in respect of the Railcars pursuant to the terms of Leases related to such Railcars during the term of such Leases, (iii) the documents, records, logs and other data maintained (or required to be maintained) in respect of the Railcars pursuant to any Applicable Law and (iv) the documents, records, logs and other data maintained (or recommended to be maintained) in respect of the Railcars pursuant to the applicable Manufacturer’s recommendations.

“Railroad Mileage Credits” means the mileage credit payments made by the railroads under their applicable tariffs to the owner of the Marks on the Railcar.

“Register” has the meaning set forth in Section 11.06(d).

“Related Adjustment” means, in determining any LIBOR Successor Rate, the first relevant available alternative set forth in the order below that can be determined by the Agent applicable to such LIBOR Successor Rate:

(i) the spread adjustment, or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the relevant Pre-Adjustment Successor Rate (taking into account the interest period, interest payment date or payment period for interest calculated and/or tenor thereto) and which adjustment or method (x) is published on an information service as selected by the Agent from time to time in its reasonable discretion or (y) solely with respect to Term SOFR, if not currently published, which was previously so recommended for Term SOFR and published on an information service acceptable to the Agent; or

(ii) the spread adjustment that would apply (or has previously been applied) to the fallback rate for a derivative transaction referencing the ISDA Definitions (taking into account the interest period, interest payment date or payment period for interest calculated and/or tenor thereto).

“Regulation O, T, U or X” means Regulation O, T, U or X, respectively, of the Board of Governors of the Federal Reserve System as amended, or any successor regulation.

“Reimbursable Amounts” has the meaning given to the term “Operating Expenses” in the Management Agreement.

“Reimbursement Amount” has the meaning specified in Section 2.07(c)(i).

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York.

“Replacement Railcar” means (i) with respect to any Lease, a Railcar that qualifies under the terms of such Lease to replace a Railcar subject to such Lease and to thereby become a “car” as defined in such Lease and (ii) with respect to any Railcars not subject to a Lease, a Railcar or

 

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Railcars having (in the aggregate), in the reasonable judgment of the Manager, a Depreciated Purchase Price, age and utility at least equal to, and being in at least as good an operating and maintenance condition as, and having been maintained in a substantially similar or better manner as, the Railcar being replaced (assuming that such Railcar had been maintained in accordance with this Agreement).

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.

“Request” means a Request in substantially the form attached hereto as Exhibit A-1, with appropriate insertions, or with such other changes as may be reasonably agreed to by the Agent.

“Required Time Period” means:

“Rescindable Amount” has the meaning as defined in Section 2.16(b).

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Responsible Officer” means with respect to any Facility Party, the president, any vice president, chief financial officer, treasurer or assistant treasurer of such Facility Party (or, in the case of a Facility Party which is a partnership, limited liability company or trust, any such officer of the general partner, manager, trustee or Person performing similar management functions in respect thereof). Any document delivered hereunder that is signed by a Responsible Officer of a Facility Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Facility Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Facility Party.

“Restricted Payment” means (i) any dividend or other distribution, direct or indirect, on account of any class of Equity Interests or Equity Equivalents of the Borrower, now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of Equity Interests or Equity Equivalents of the Borrower, now or hereafter outstanding, (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any class of Equity Interests or Equity Equivalents of the Borrower, now or hereafter outstanding, and (iv) any loan, advance, tax sharing payment or indemnification payment to, or investment in, any Affiliate of the Borrower.

“Revolving Termination Date” means the earlier of (i) 24 months from the Closing DateAugust 26, 2025, or such later date to which the Revolving Termination Date may have been extended pursuant to Section 2.08 , (ii) unless waived by the Majority Lenders, the date on

 

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which a Manager Event of Default has occurred (provided, however, if the applicable Manager Event of Default requires that a condition exist for fewer than 30 days prior to the occurrence of such Manager Event of Default, the Revolving Termination Date shall not occur until 30 days have elapsed from the first date on which such condition existed), or (iii) such earlier date upon which the Commitments shall have been terminated in their entirety in accordance with this Agreement.

“S&P” means Standard & Poor’s Ratings Services, a division of McGraw Hill Financial, a New York corporation, and its successors.

“Sale Agreement” means, with respect to any Railcar and related Lease, if applicable, the Asset Contribution and Sale Agreement, or such other agreement or agreements, in each case in form and substance acceptable to the Agent in its reasonable discretion, between the applicable seller thereof and the applicable Borrower as shall provide for the purchase of such Railcar and related Lease, if applicable, by the applicable Borrower.

“Sanctioned Person” means: (a) any Person that is, or is majority owned or Controlled by Persons that are, the subject of Sanctions; (b) a legal entity that is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity by Sanctioned Persons; or (c) any other Person with whom a U.S. Person may not engage in transactions under any Prohibited Nations Act in the absence of general or specific governmental authorization.

“Sanctions” has the meaning assigned to such term in Section 5.23.

 

“Screen Rate” means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for Dollars for the relevant period and reported on the Reuters Screen LIBOR Page (or any applicable successor pageScheduled Unavailability Date” has the meaning specified in Section 2.15(b).

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Securitization” means any asset-backed offering sponsored by the Borrower, GBX and/or their Affiliates, and involving all or any of the Portfolio Railcars and Portfolio Leases.

“Security Agreement” means the Security Agreement, substantially in the form of Exhibit E-1 hereto, dated as of April 1, 2021, between the Borrower, the Collateral Agent and the Agent.

“Security Deposit” means any cash held by or for the benefit of the Borrower as a “security deposit” (or other similar term) pursuant to any Lease.

“Services Standard” has the meaning assigned to such term in the Management Agreement.

 

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“Settlement Date” means the 20th calendar day of each calendar month; provided that if such day is not a Business Day, the applicable “Settlement Date” shall be the next succeeding Business Day.

“SOFR” with respect to any Business Day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source) at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day and, in each case, that has been selected or recommended by the Relevant Governmental Body.

“SOFR Adjustment” means 0.11448% (11.448 basis points).

“Solvent” means, with respect to any Person as of a particular date, that on such date (i) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (ii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (iii) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s assets would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (iv) the fair value of the assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (v) the aggregate fair saleable value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that could be obtained for the assets in question within such period by a capable and diligent businessman from an interested buyer who is willing to purchase under ordinary selling conditions) of the assets of such Person will exceed its debts and other liabilities (including contingent, subordinated, unmatured and unliquidated debts and liabilities). For purposes of this definition, “debt” means any liability on a claim, and “claim” means (i) a right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (ii) a right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right is an equitable remedy, is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.

“STB” means the United States Surface Transportation Board and its successors.

“Step-Up Margin” means, on the Revolving Termination Date, a rate per annum equal to 50 basis points, which will increase cumulatively by an additional 50 basis points on each anniversary thereof.

“Subsidiary” means with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which (i) if a corporation, more than 50.00% of the total voting power of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a

 

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combination thereof, or (ii) if a partnership, limited liability company, association or business entity other than a corporation, more than 50.00% of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have more than 50.00% ownership interest in a partnership, limited liability company, association or other business entity if such Person or Persons shall be allocated more than 50.00% of partnership, association or other business entity gains or losses or shall be or control the managing director, manager or a general partner of such partnership, association or other business entity.

“Successor Manager” has the meaning set forth in the Management Agreement.

“Successor Rate” has the meaning specified in Section 2.15(b).

“Supplemental Manager’s Fee” means the compensation payable to Manager pursuant to Section 7(B) and Section 7(C) of the Management Agreement.

“Support Facility” shall mean any liquidity or credit support agreement or other facility with a Conduit Lender which relates, either generally or specifically, to this Agreement (including any agreement to purchase an assignment of or participation in, or to make loans or other advances in respect of, Notes or Loans).

“Support Party” shall mean any bank, insurance company or other entity extending or having a commitment to extend funds to or for the account of a Conduit Lender (including by agreement to purchase an assignment of or participation in, or to make loans or other advances in respect of, Notes or Loans) under a Support Facility.

“Taxes” has the meaning set forth in Section 3.01.

 

“Term SOFR” means the forward-looking term rate for any period that is approximately (as determined by the Agent) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected by the Agent from time to time in its reasonable discretion” means, with respect to any Interest Period or portion thereof, (i) with respect to the aggregate principal amount of the Loans outstanding as of the first day of such Interest Period, the rate per annum equal to the Term SOFR Screen Rate with a term equivalent to such Interest Period on the day that is two (2) U.S. Government Securities Business Days prior to the commencement of such Interest Period; and (ii) with respect to the outstanding principal amount of any Loan made during such Interest Period, from the related Funding Date until and including the the last day of such Interest Period, the rate per annum equal to the Term SOFR Screen Rate with one month tenor on the day that is two (2) U.S. Government Securities Business Days prior to such Funding Date; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such Interest Period; provided that if the rates referenced above are not available or not established for

 

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any reason for any Interest Period, “Term SOFR” shall equal the Corporate Base Rate for each day during such Interest Period; provided further that if Term SOFR determined in accordance with the foregoing would otherwise be less than zero, Term SOFR shall be deemed zero for purposes of this Agreement.

“Term SOFR Replacement Date” has the meaning specified in Section 2.15(b).

“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time).

“Termination Date” means the date on which all outstanding Credit Obligations of the Borrower have been repaid in full, the Revolving Termination Date has occurred and all Commitments have been terminated.

“Transaction Documents” means the Loan Documents and the Management Documents, collectively.

“Treasury Regulations” means the regulations, including temporary and proposed regulations, promulgated by the United States Department of Treasury with respect to the Code, as such regulations are amended from time to time, or corresponding provisions of future regulations.

“Two Year USD Swap Rate” means, on any Settlement Date, the rate calculated by the Agent on such Settlement Date as the fixed rate which would be payable by a fixed rate payer (exclusive of credit spreads) in exchange for floating rate payments equal to LIBORTerm SOFR under a two-year United States Dollar interest rate swap agreement, with monthly settlement, having a notional amount equal to the outstanding principal amount of the Loans on such Settlement Date.

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“United States” means the United States of America, including the States and the District of Columbia but excluding its territories and possessions.

“Unused Committed Amount” means, as of any date of determination, the amount by which (i) the then applicable Committed Amount exceeds (ii) the aggregate principal amount of all outstanding Loans as of such date.

 

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“U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.

“U.S. Person” means: (a) a U.S. citizen, (b) a U.S. resident, (c) an individual or entity located in the United States, (d) an entity organized under U.S. law, or (e) an entity owned or controlled by any of the above.

“Write-Down and Conversion Powers” means:

(a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

(b) with respect to the United Kingdom, any powers of the applicable UK Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

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(x) the Maximum Advance Rate, or up to 100.00% if the aggregate amount of the Loans which would be outstanding, after giving effect to the Loans to be advanced on such Funding Date is equal to or less than the Borrowing Base; and

(y) the Aggregate FMV with respect to all the Eligible Railcars to be added to the Portfolio on such Funding Date and that are On-Lease Railcars on such Funding Date; plus

(x) 65.00%, or up to 100.00% if the aggregate amount of the Loans which would be outstanding, after giving effect to the Loans to be advanced on such Funding Date is equal to or less than the Borrowing Base; and

(y) the Aggregate FMV with respect to all the Eligible Railcars to be added to the Portfolio on such Funding Date and that are Off-Lease Railcars on such Funding Date; or

Each Borrowing shall be in a minimum aggregate principal amount of $5,000,000, in the case of the first Borrowing hereunder, or $1,000,000, in the case of subsequent Borrowings, and shall be made from the several Committed Lenders ratably in proportion to their respective Commitments. The Lenders have no obligation to make any Loan hereunder except as expressly set forth in this Agreement. Within the foregoing limits, the Borrower may borrow under this Section 2.01, repay, or, to the extent permitted by Section 2.07, prepay, Loans and reborrow under this Section 2.01. In connection with the transactions on any Funding Date, the Agent may in its sole discretion grant the Borrower a temporary waiver for a specified period of time (which, for the avoidance of doubt, shall last for a period of no longer than 5 Business Days) to perform its obligations under clauses

 

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(i) or (ii) of the penultimate sentence of clause (c) of Section 2.02 and to fulfill the conditions set forth in Section 4.02 (other than clauses (a), (b), (c), (d), (f), (g), (j), or (k) thereof).

 

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and attaching a pro forma Borrowing Base Certificate giving effect to all Loans requested pursuant to such Notice of Borrowing and the pledge of all Railcars and Leases to be added to the Portfolio on the proposed Funding Date. The Agent shall deliver to all Committed Lenders a copy of the Funding Package with respect to all Railcars funded on any Funding Date within 10 Business Days after such Funding Date.

A Notice of Borrowing, once delivered to the Agent, shall be irrevocable and binding on the Borrower. Following such Notice of Borrowing, the applicable Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill, on or before the proposed Funding Date specified in the Notice of Borrowing, the conditions set forth in Section 4.02, including any loss, cost or expense incurred by reason of the liquidation or re-employment of deposits or such funds acquired by the Lenders to fund the Loans to be made pursuant to this Section 2.03(b). Any such loss, cost or expense shall be paid in accordance with Section 2.07(c) after any Lender shall have furnished to the

 

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Borrower and the Agent, with reasonable supporting calculations, a notice specifying the amounts thereof.

 

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provided, however, that if the payment of such amount pursuant to Section 2.07(b)(v)(a), Section 2.07(b)(v)(b) or Section 2.07(b)(v)(c), together with the occurrence of any related Event of Loss or any release of Railcars from the Portfolio or the application of cash or Cash Equivalents from the Liquidity Reserve Account pursuant to any provision hereof would result in a Collateral Deficiency, such payment amount shall be increased (up to the amount of the total Net Cash Proceeds being applied on such date) to the extent required to prevent such Collateral Deficiency from occurring.

first, to the payment of any fees or indemnities payable or expenses or Taxes (other than as set forth in clause fourth below) (including the Manager’s Fee payable on such Settlement Date, including, without limitation, amount distributed to Lessees in respect of Railroad Mileage Credits together with the aggregate amount of any Manager’s Fees which were due and payable on any

 

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previous Settlement Date and remain unpaid) permitted under this Agreement or any other Loan Document;

second, if a Manager Event of Default has occurred and is continuing, to reimburse the Collateral Agent and the Agent for any fees and expenses incurred by the Collateral Agent or the Agent, as the case may be (including, without limitation, reasonable attorney’s fees and expenses and the fees and expenses of any person appointed by the Agent to replace the Manager pursuant to the Management Agreement) in connection with any Manager Event of Default and the exercise by the Agent and/or the Collateral Agent of any right or remedy hereunder and not previously reimbursed or paid by the Lenders;

third, ratably (x) to the payment of accrued and unpaid interest on the Loans, (y) to the payment of Derivatives Obligations (other than for the payment of Derivatives Termination Values payable by the Borrower), if any, then due and payable and (z) to the payment of Liquidity Fees then due and payable;

fourth, to the payment of all indemnities in respect of Taxes, Other Taxes, stamp Taxes, funding losses referred to in Section 3.04, increased costs referred to in Section 3.03, losses, costs and expenses referred to in Section 2.03(b) and other amounts, other than principal of or interest on the Loans, payable to any Protected Party in accordance with the Loan Documents;

fifth, deposit to the Liquidity Reserve Account the positive difference (if any) between (x) the Liquidity Reserve Target Amount and (y) the balance of the Liquidity Reserve Account, in each case as determined on the immediately preceding Calculation Date;

sixth, deposit to the Maintenance Reserve Account and/or the Modifications and Improvements Account, in each case the amount determined by the Borrower in their sole discretion;

seventh, to the ratable payment of the unpaid principal of the Loans in an amount not exceeding an amount such that, after giving effect to such payment, no Collateral Deficiency then exists;

eighth, to the Derivatives Counterparties for the payment of Derivatives Termination Values payable by the Borrower;

ninth, if an Early Amortization Event or Manager Event of Default has occurred and is continuing and/or on any Settlement Date that is more than 364 days after the Revolving Termination Date, to the ratable payment of the unpaid principal amount of the Loans;

tenth, to reimburse the Manager for outstanding Manager Advances, together with accrued interest thereon and, thereafter, only if the outstanding Manager Advances have been paid in full, then to the ratable payment of the unpaid Aggregated Default Interest and any accrued and unpaid interest thereon;

 

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eleventh, if the Manager is GMS or one of its Affiliates, the Supplemental Manager’s Fee payable on such Settlement Date, together with the aggregate amount of any Supplemental Manager’s Fees which were due and payable on any previous Settlement Date and remain unpaid;

twelfth, deposit to the Discretionary Account or, subject to Section 7.07, otherwise at the direction of the Borrower.

first, to the payment of any fees or indemnities payable or expenses or Taxes (other than as set forth in clause fourth below) (including the Manager’s Fee payable on such Settlement Date, including, without limitation, amount distributed to Lessees in respect of Railroad Mileage Credits together with the aggregate amount of any Manager’s Fees which were due and payable on any previous Settlement Date and remain unpaid) permitted under this Agreement or any other Loan Document, in each case as approved by the Agent;

second, to reimburse the Collateral Agent and the Agent for any fees and expenses incurred by the Collateral Agent or the Agent, as the case may be (including, without limitation, reasonable attorney’s fees and expenses and the fees and expenses of any person appointed by the Agent to replace the Manager pursuant to the Management Agreement) in connection with any Manager Event of Default or Event of Default and the exercise by the Agent and/or the Collateral Agent of any right or remedy hereunder and not previously reimbursed or paid by the Lenders;

third, ratably (x) to the payment of accrued and unpaid interest on the Loans, (y) to the payment of Derivatives Obligations (other than for the payment of Derivatives Termination Values payable by the Borrower), if any, then due and payable and (z) to the payment of Liquidity Fees then due and payable;

 

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fourth, to the payment of all indemnities in respect of Taxes, Other Taxes, stamp Taxes, funding losses referred to in Section 3.04, increased costs referred to in Section 3.03, losses, costs and expenses referred to in Section 2.03(b) and other amounts, other than principal of or interest on the Loans, payable to any Protected Party in accordance with the Loan Documents;

fifth, to the Derivatives Counterparties for the payment of Derivatives Termination Values payable by the Borrower;

sixth, to the ratable payment of the unpaid principal amount of the Loans; and

seventh, deposit to the Discretionary Account or, subject to Section 7.07, otherwise at the direction of the Borrower.

 

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In the case of the removal of a Protected Party pursuant to this Section 2.08(b), upon payment by the Borrower (from the Discretionary Account or otherwise) to the Agent for the account of the Protected Party subject to such removal of an amount equal to the sum of (i) the aggregate principal amount of all Loans held by such Protected Party and (ii) all accrued interest, fees and other amounts owing to such Protected Party hereunder, including, without limitation, all amounts payable by the Borrower to such Protected Party under Article III or Sections 11.05 and 11.06, such Protected Party shall cease to constitute a Protected Party hereunder; provided that the provisions of this Agreement (including, without limitation, the provisions of Article III and Sections 11.05 and 11.06) shall continue to govern the rights and obligations of a removed Protected Party with respect to any Loans made or any other actions taken by such removed Protected Party while it was a Protected Party.

 

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The Borrower will, to the extent required by any Committed Lender, amend any Acceptable Derivatives Agreement which is then in effect at any time when (i) there is any increase in the outstanding principal amount of the Loans, (ii) there is any change in the contractual payment schedule of the Loans, or (iii) the Derivatives Percentage is less than 85.0% or more than 115.0%, so that such Acceptable Derivatives Agreement, as amended, would comply with the definition of “Acceptable Derivatives Agreement” if first entered into on the date of such amendment.

Amounts received by the Borrower under any Acceptable Derivatives Agreement shall be deposited into the Collection Account and applied as set forth in Section 2.07(c).

 

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(iii) the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over such administrator has made a public statement announcing that all Interest Periods and other tenors of LIBOR are no longer representative; or

(iv) syndicated loans currently being executed, or that include language similar to that contained in this Section 2.15, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR;

then, in the case of clauses (i)-(iii) above, on a date and time determined by the Agent in its discretion (any such date, the “LIBORTerm SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and (A) shall occur reasonably promptly upon the occurrence of any of the events or circumstances under clauses (i), or (iii) above and,(B) shall occur , solely with respect to clause (iib) above, no later than the Scheduled Unavailability Date, LIBORTerm SOFR will be replaced hereunder and under any Loan Document with, subject to the proviso below, the first available alternative set forth in the order below Daily Simple SOFR plus the SOFR Adjustment for any payment period for interest calculated that can be determined by the Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “LIBOR Successor Rate”; and any such rate before giving effect to the Related Adjustment, the “Pre-Adjustment Successor Rate”):.

(x) Term SOFR plus the Related Adjustment; and

(y) SOFR plus the Related Adjustment;

and in the case of clause (iv) above, the Borrower and Agent may amend this Agreement solely for the purpose of replacing LIBOR under this Agreement and under any other Loan Document in accordance with the definition of “LIBOR Successor Rate” and such amendment will become effective at 5:00 p.m., on the fifth Business Day after the Agent shall have notified all Lenders and the Borrower of the occurrence of the circumstances described in clause (iv) above unless, prior to such time, Lenders comprising the Majority Lenders have delivered to the Agent written notice that such Majority Lenders object to the implementation of a LIBOR Successor Rate pursuant to such clause;

provided that, if the Agent determines that Term SOFR has become available, is administratively feasible for the Agent and would have been identified as the Pre-Adjustment Successor Rate in accordance with the foregoing if it had been so available at the time that the LIBOR Successor Rate then in effect was so identified, and the Agent notifies the Borrower and each Lender of such availability, then from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Pre-Adjusted LIBOR Successor Rate shall be Term SOFR and the LIBOR Successor Rate shall be Term SOFR plus the relevant Related Adjustment.

 

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The Agent will promptly (in one or more notices) notify the Borrower and each Lender of (x) any occurrence of any of the events, periods or circumstances under clauses (i) through (iii) above, (y) a LIBOR Replacement Date and (z) the LIBOR Successor Rate.

Any LIBOR Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by the Agent.

Notwithstanding anything else herein, if at any time any LIBOR Successor Rate as so determined would otherwise be less than 0.00%, the LIBOR Successor Rate will be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents.

In connection with the implementation of a LIBOR Successor Rate, the Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Agent shall post each such amendment implementing such LIBOR Successor Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.

If the events or circumstances of the type described in 2.15 (a)(i)-(iii) have occurred with respect to the LIBOR Successor Rate then in effect, then the successor rate thereto shall be determined in accordance with the definition of “LIBOR Successor Rate.”

If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will be payable on a monthly basis.

(b) Notwithstanding anything to the contrary herein, (i) after any such determination by the Agent or receipt by the Agent of any such notice described under Section 2.15(a)(i)-(iii), as applicable, if the Agent determines that none of the LIBOR Successor RatesDaily Simple SOFR is not available on or prior to the LIBORTerm SOFR Replacement Date, or (ii) if the events or circumstances described in 2.15(a)(iv) have occurred but none of the LIBOR Successor Rates is available, or (iii) if the events or circumstances of the type described inthis Section 2.15(a)(i)-(iii) have occurred with respect to the LIBOR Successor Rate then in effect and the Agent determines that none of the LIBOR Successor Rates is available, then in each case, the Agent and the Borrower may amend this Agreement solely for the purpose of replacing LIBORTerm SOFR or any then current LIBOR Successor Rate in accordance with this Section 2.15 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, in accordance with this Section 3.03 with another alternatewith an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities syndicated and agented in the United States for such alternative benchmarksbenchmark. and, in each case, including any Related Adjustments and any other mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities syndicated and agented in the United States for such benchmarksbenchmark, which adjustment or method for

 

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calculating such adjustment shall be published on an information service as selected by the Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a LIBOR “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Majority Lenders have delivered to the Agent written notice that such Majority Lenders object to such amendment.

(c) If, at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, no LIBOR Successor Rate has been determined in accordance with clauses (a) or (b) of this Section 2.15 and the circumstances under clauses (a)(i) or (a)(iii) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to the extent of the affected Eurodollar Rate Loans, Interest Periods, interest payment dates or payment periods), and (y) the Eurodollar Rate component shall no longer be utilized in determining the Corporate Base Rate, until the LIBOR Successor Rate has been determined in accordance with clauses (a) or (b). Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans, Interest Periods, interest payment dates or payment periods) or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Corporate Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.

The Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate.

Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Agent.

Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero (0)%, the Successor Rate will be deemed to be zero (0)% for the purposes of this Agreement and the other Loan Documents.

In connection with the implementation of a Successor Rate, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.

 

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and the result of any of the foregoing is to increase the cost to such Protected Party of making, converting into, continuing or maintaining any Loans or to reduce any amount receivable hereunder in respect thereof (any such increased cost or reduction hereinafter referred to as an “Increased Cost”), then, in any such case, upon notice to the Borrower from such Protected Party, through the Agent, in accordance herewith, the Borrower shall be obligated to pay such Protected Party, in accordance with Section 2.07(c), any additional amounts necessary to compensate such Protected Party on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.

 

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The delivery of each Notice of Borrowing shall constitute a representation and warranty by the Borrower of the correctness of the matters specified in subsections (b), (c), (d), (e), (h) and (l) above.

The Borrower represents and warrants as of the Closing Date and as of each Funding Date that:

 

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Each Facility Party agrees that so long as any Lender has any Commitment hereunder or any Obligation or other amount payable hereunder or under any Note or other Loan Document remains unpaid:

in each case setting forth in comparative form figures for the preceding fiscal year, all such financial statements to be in reasonable form and detail and audited by KPMG LLP or other independent certified public accountants of recognized national standing reasonably acceptable to the Agent and accompanied by an opinion of such accountants (which shall not be qualified or

 

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limited in any material respect) to the effect that such financial statements have been prepared in accordance with GAAP and present fairly the consolidated financial position and results of operations and cash flows of GBX Leasing and its consolidated Subsidiaries in accordance with GAAP consistently applied (except for changes with which such accountants concur).

 

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Upon the request of the Collateral Agent from time to time, the Borrower will promptly and duly execute and deliver any and all such further instruments and documents as may be specified in such request which are reasonably necessary to perfect, preserve or protect the security interests created or intended to be created for the Replacement Railcars referred to herein, or to establish that the Borrower has title to such Railcars.

 

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The Agent also may at any time and from time to time obtain an Independent Appraisal of any Railcar (in addition to the Independent Appraisal required pursuant to this Section 6.10(c)) at its own expense. Each Independent Appraisal delivered pursuant to this Section 6.10(c) shall be in form and substance reasonably satisfactory to the Agent; provided that with respect to any Railcar, when appropriate and acceptable to the Agent, any such Independent Appraisal may be in the form of a letter from an Independent Appraiser confirming the Independent Appraisal previously delivered by such Independent Appraiser with respect to such Railcar; provided further that, Independent Appraisals of any Railcar shall be based on the most recent Physical Inspection Report (if any) of such Railcar.

 

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Each Lessee Consent shall be in form and substance sufficient to satisfy the Lessee Consent Requirements of such Lease. If, in accordance with the terms set forth above, a Lessee Consent complying with this Section 6.17 is not obtained from the applicable Lessee within 60 days of the date on which such Lessee Consent Requirement arose, the applicable Railcars shall be excluded from the calculation of the Borrowing Base until such time as such Lessee Consent has been obtained.

The Borrower agrees that so long as any Lender has any Commitment hereunder or any Obligations or other amount payable hereunder or under any Note or other Loan Document remains unpaid:

 

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in the case of each of clause (i)(A) or (i)(B) hereof, without regard to whether sufficient Cash Flow or Net Cash Proceeds are available for such payment on such date; or

 

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Notwithstanding the foregoing, if an Event of Default specified in Section 9.01(g) shall occur, then the Commitments shall automatically terminate and all Loans, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to the Lenders hereunder and under the other Loan Documents shall immediately become due and payable without the giving of any notice or other action by the Collateral Agent, the Agent or the Lenders, which notice or other action is expressly waived by the Borrower.

Notwithstanding the fact that enforcement powers reside primarily with the Collateral Agent and the Agent, each Lender has, to the extent permitted by law, a separate right of payment and shall be considered a separate “creditor” holding a separate “claim” within the meaning of Section 101(5) of the Bankruptcy Code or any other insolvency statute.

In case any one or more of the covenants and/or agreements set forth in this Agreement or any other Loan Document shall have been breached by any Borrower, then the Collateral Agent and the Agent may proceed to protect and enforce the Lenders’ rights either by suit in equity and/or by action at law, including an action for damages as a result of any such breach and/or an action for specific performance of any such covenant or agreement contained in this

 

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Agreement or such other Loan Document. Without limitation of the foregoing, the Borrower agrees that failure to comply with any of the covenants contained herein may cause irreparable harm and that specific performance shall be available as a remedy in the event of any breach thereof. Each of the Agent and the Collateral Agent acting pursuant to this paragraph shall be indemnified by the Borrower against all liability, loss or damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses) in accordance with Section 11.05.

 

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Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above, (i) each Lender is entitled to vote as such ▇▇▇▇▇▇ sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein and (ii) the Majority Lenders may consent to allow the Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding.

The various requirements of this Section 11.03 are cumulative. Each Lender and each holder of a Note shall be bound by any waiver, amendment or modification authorized by this Section 11.03 regardless of whether its Note shall have been marked to make reference therein, and any consent by any Lender or holder of a Note pursuant to this Section 11.03 shall bind any Person subsequently acquiring a Note from it, whether or not such Note shall have been so marked.

 

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The Borrower shall pay promptly on demand, but in any event by the next Settlement Date following demand, (i) all reasonable filing fees and attorneys’ fees and expenses incurred by the Collateral Agent and the Agent and all reasonable fees and expenses of special STB or other collateral or regulatory counsel as the case may be, in connection with the preparation and review of the Collateral Documents and the other Loan Documents from time to time entered into or reviewed pursuant to this Agreement and all documents related thereto, the search of railcar conveyance and Lien records, the recordation of documents with the STB or other applicable Governmental Authority, inspection and appraisal fees and the making of the Loans hereunder, whether or not any Funding Date or other transaction contemplated hereby closes and (ii) all Taxes which the Collateral Agent or any Protected Party may be required to pay by reason of the security interests granted in the Collateral (including any applicable transfer Taxes) or to free any of the Collateral from the lien thereof.

In addition, the Borrower shall pay promptly on demand, but in any event by the next Settlement Date following demand, all reasonable out of pocket expenses (including, without limitation, reasonable attorneys’ fees and expenses and fees and expenses of any expert witnesses) incurred by the Agent the Collateral Agent in connection with the enforcement and protection of the rights of the Agent and the Collateral Agent under any of the Loan Documents and any amendments thereto and waivers thereof and any Manager Event of Default, Event of Default, including without limitation, the performance by the Agent or the Lenders of any act any Facility Party has covenanted to do under the Loan Documents and/or the Management Documents to the extent such Facility Party fails to comply with any such covenant.

The Borrower shall pay all fees and expenses in connection with the Depository Agreement including, without limitation, all fees (including any annual fee payable to the Depositary pursuant to the Depository Agreement), expenses and any indemnity payments to the Depositary and all fees and expenses in creating, maintaining and administrating the Accounts.

Except as expressly provided above, this Section 11.04 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

 

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The Borrower shall, no later than 20 days following demand, reimburse any Indemnitee for any Indemnified Liability referred to above or, upon request from any Indemnitee, shall pay such amounts directly. Any payment made to or on behalf of any Indemnitee pursuant to this Section 11.05 shall be adjusted to such amount as will, after taking into account all Taxes imposed with respect to the accrual or receipt of such payment (as the same may be increased pursuant to this sentence), equal the amount of the payment. To the extent that any Facility Party in fact indemnifies any Indemnitee pursuant to the provisions of this Section 11.05 (other than in respect of Taxes), such Facility Party shall be subrogated to such Indemnitee’s rights in the affected transaction and shall have a right to determine the settlement of claims therein.

If a claim of the type described above is made against an Indemnitee and such Indemnitee has notice thereof, such Indemnitee shall promptly, upon receiving such notice, give notice of such claim to the Borrower; provided that the failure to provide such notice shall not release any Facility Party from any of its obligations hereunder except if and to the extent that such failure results in an increase in any Facility Party’s indemnification obligations hereunder. The Facility Parties shall be entitled, in each case at their sole cost and expense, acting through counsel reasonably acceptable to the relevant Indemnitee: (i) in any judicial or administrative proceeding

 

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that involves solely a claim of the type described above, to assume responsibility for and control thereof, (ii) in any judicial or administrative proceeding involving a claim of the type described above and other claims related or unrelated to the transactions contemplated by this Agreement or any other Loan Document (other than with respect to Taxes), to assume responsibility for and control of such claim, to the extent that the same may be and is severed from such other claims (and such Indemnitee shall use its best efforts to obtain such severance), and (iii) in any other case, to be consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee. Notwithstanding anything in the foregoing to the contrary, no Facility Party shall be entitled to assume responsibility for and control of any such judicial or administrative proceedings: (A) while an Event of Default shall have occurred and be continuing; (B) if such proceedings will involve any risk of criminal liability or a material risk of the sale, forfeiture or loss of any part of the Collateral; or (C) to the extent that the Indemnitee has defenses available to it which are not available to any Facility Party and allowing such Facility Party to assert such defenses will be prejudicial to the interests of such Indemnitee; provided that the limitation on the Facility Parties’ ability to control such judicial or administrative proceeding shall apply only to those aspects of such proceeding which address issues with respect to which such defenses are available.

The relevant Indemnitee shall supply the Borrower with such information reasonably requested by the Borrower as is necessary or advisable for either Facility Party to control or participate in any proceeding to the extent permitted by this Section 11.05. Such Indemnitee shall not enter into a settlement or other compromise with respect to any covered claim without the prior written consent of the Borrower, which consent shall not be unreasonably withheld or delayed, unless such Indemnitee waives its right to be protected with respect to such covered claim.

 

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provided further, however, notwithstanding anything to the contrary contained herein, upon the occurrence and during the continuance of an Event of Default hereunder, any Lender may assign all or a portion of its obligations under this Agreement in accordance with clause (iii) above.

 

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“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

“Covered Entity” means any of the following:

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

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[Signature Pages Follow]

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

	GBXL I, LLC By: GBX Leasing, LLC, its sole member By:  Name:  Title:
	GBXL I (CANADA) LTD. By:  Name:  Title:

 

 

 

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[Warehouse Loan Agreement]

	BANK OF AMERICA, N.A., as Agent By:  Name:  Title: By:  Name:  Title:

 

 

 

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[Warehouse Loan Agreement]

	BANK OF AMERICA, N.A., as a Committed Lender By:  Name:  Title: By:  Name:  Title:

 

 

 

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[Warehouse Loan Agreement]

	WILMINGTON TRUST COMPANY,   as Collateral Agent and Depositary By:  Name:  Title:

 

 

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