-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ron0YCoV/hfngexjTl16CmEu2m2Sisnc8t7AGzQr8uRWasSBnsC09FGMO3AuLyK0 fyeQZ/IeN2u1NUusJ7eM+A== 0000950134-02-001481.txt : 20020414 0000950134-02-001481.hdr.sgml : 20020414 ACCESSION NUMBER: 0000950134-02-001481 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20020215 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020219 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRINITY INDUSTRIES INC CENTRAL INDEX KEY: 0000099780 STANDARD INDUSTRIAL CLASSIFICATION: RAILROAD EQUIPMENT [3743] IRS NUMBER: 750225040 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-06903 FILM NUMBER: 02553189 BUSINESS ADDRESS: STREET 1: 2525 STEMMONS FREEWAY CITY: DALLAS STATE: TX ZIP: 75207-2401 BUSINESS PHONE: 2146314420 FORMER COMPANY: FORMER CONFORMED NAME: TRINITY STEEL CO INC DATE OF NAME CHANGE: 19720407 8-K 1 d94365e8-k.txt FORM 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): February 15, 2002 TRINITY INDUSTRIES, INC. (Exact name of Registrant as specified in its charter) DELAWARE 1-6903 75-0225040 (State or other (Commission File Number) (IRS Employer jurisdiction of Identification incorporation) Number) 2525 STEMMONS FREEWAY, DALLAS, TEXAS 75207-2401 (Address of principal executive offices) (Zip Code) (214) 631-4420 (Registrant's telephone number, including area code) N/A (Former name or former address, if changed since last report) ITEM 5. OTHER EVENTS On February 15, 2002, Trinity Industries, Inc. (the "Company") announced that its wholly-owned subsidiary, Trinity Industries Leasing Company ("Trinity Leasing") completed a $170,000,000 million private placement of secured debt securities (the "Offering"). Pass through trust certificates (the "Certificates") were issued by a pass through trust (the "Trust") formed for the purpose of consummating the Offering. As collateral for the Certificates, Trinity Leasing issued $170 million of senior secured notes (the "Notes") to the Trust. The Notes are secured by certain of Trinity Leasing's railcars and related leases, and also are guaranteed by the Company. In connection with the Offering the Company entered into a Pass Through Trust Agreement and three Indentures, which are filed as exhibits 4.1, 4.2, 4.3 and 4.4, respectively, to this Current Report on Form 8-K. A copy of the press release relating to the Offering is filed as Exhibit 99.1 to this Current Report on Form 8-K. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS [c] The following exhibits are filed with this report: 4.1 Pass Through Trust Agreement dated as of February 15, 2002 among Trinity Industries Leasing Company, Trinity Industries, Inc. and Wilmington Trust Company, as Trustee. 4.2 [A] Trust Indenture and Security Agreement dated as of February 15, 2002 among Trinity Industries Leasing Company, Trinity Industries, Inc. and The Bank of New York, as Trustee. 4.3 [B] Trust Indenture and Security Agreement dated as of February 15, 2002 among Trinity Industries Leasing Company, Trinity Industries, Inc. and The Bank of New York, as Trustee. 4.4 [C] Trust Indenture and Security Agreement dated as of February 15, 2002 among Trinity Industries Leasing Company, Trinity Industries, Inc. and The Bank of New York, as Trustee. 99.1 Press release, dated February 15, 2002. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized. TRINITY INDUSTRIES, INC., a Delaware corporation Date: February 19, 2002 By: /s/ JIM S. IVY -------------------------------------- Name: Jim S. Ivy Title: Vice President and Chief Financial Officer 3 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION ------- ----------- 4.1 Pass Through Trust Agreement dated as of February 15, 2002 among Trinity Industries Leasing Company, Trinity Industries, Inc. and Wilmington Trust Company, as Trustee. 4.2 [A] Trust Indenture and Security Agreement dated as of February 15, 2002 among Trinity Industries Leasing Company, Trinity Industries, Inc. and The Bank of New York, as Trustee. 4.3 [B] Trust Indenture and Security Agreement dated as of February 15, 2002 among Trinity Industries Leasing Company, Trinity Industries, Inc. and The Bank of New York, as Trustee. 4.4 [C] Trust Indenture and Security Agreement dated as of February 15, 2002 among Trinity Industries Leasing Company, Trinity Industries, Inc. and The Bank of New York, as Trustee. 99.1 Press release, dated February 15, 2002.
EX-4.1 3 d94365ex4-1.txt PASS THROUGH TRUST AGREEMENT EXHIBIT 4.1 ================================================================================ PASS THROUGH TRUST AGREEMENT TRINITY INDUSTRIES LEASING COMPANY, Company TRINITY INDUSTRIES, INC., Guarantor And WILMINGTON TRUST COMPANY, Trustee Dated as of February 15, 2002 $170,000,000 Trinity Industries Leasing Company 2002-1 Pass Through Trust 7.755% Pass Through Certificates, Series 2002-1 ================================================================================ TABLE OF CONTENTS
Page ---- ARTICLE I. DEFINITIONS Section 1.01. Definitions.....................................................................................1 Section 1.02. Compliance Certificates and Opinions............................................................8 Section 1.03. Form of Documents Delivered to Trustee..........................................................8 Section 1.04. Acts of Holders.................................................................................9 ARTICLE II. ACQUISITION OF EQUIPMENT NOTES; ORIGINAL ISSUANCE OF CERTIFICATES Section 2.01. Issuance of Certificates; Acquisition of Equipment Notes.......................................10 Section 2.02. Acceptance by Trustee..........................................................................10 Section 2.03. Limitation of Powers...........................................................................10 ARTICLE III. THE CERTIFICATES Section 3.01. Form of Certificates...........................................................................11 Section 3.02. Restrictive Legends............................................................................12 Section 3.03. Execution, Authentication and Denomination of Certificates.....................................13 Section 3.04. Temporary Certificates.........................................................................13 Section 3.05. Registration of Transfer and Exchange of Certificates..........................................14 Section 3.06. Book-Entry Provisions for Global Certificates..................................................15 Section 3.07. Special Transfer Provisions....................................................................16 Section 3.08. Mutilated, Destroyed, Lost or Stolen Certificates..............................................18 Section 3.09. Persons Deemed Owners..........................................................................18 Section 3.10. Cancellation...................................................................................18 Section 3.11. Limitation of Liability for Payments...........................................................19 ARTICLE IV. DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS Section 4.01. Certificate Account and Special Payments Account...............................................19 Section 4.02. Distributions from Certificate Account and Special Payments Account............................19 Section 4.03. Statements to Certificateholders...............................................................20 Section 4.04. Investment of Special Payment Moneys...........................................................21 ARTICLE V. DEFAULT Section 5.01. Events of Default..............................................................................22 Section 5.02. Incidents of Sale of Equipment Notes...........................................................22
-i- Section 5.03. Judicial Proceedings Instituted by Trustee.....................................................23 Section 5.04. Control by Certificateholders..................................................................24 Section 5.05. Waiver of Past Defaults........................................................................24 Section 5.06. Undertaking to Pay Court Costs.................................................................25 Section 5.07. Right of Certificateholders to Receive Payments Not to Be Impaired.............................25 Section 5.08. Certificateholders May Not Bring Suit Except Under Certain Conditions..........................25 Section 5.09. Remedies Cumulative............................................................................26 ARTICLE VI. THE TRUSTEE Section 6.01. Certain Duties and Responsibilities............................................................26 Section 6.02. Notice of Defaults.............................................................................27 Section 6.03. Certain Rights of Trustee......................................................................28 Section 6.04. Not Responsible for Recitals or Issuance of Certificates.......................................29 Section 6.05. May Hold Certificates..........................................................................29 Section 6.06. Money Held in Trust............................................................................29 Section 6.07. Compensation and Reimbursement.................................................................29 Section 6.08. Corporate Trustee Required; Eligibility........................................................30 Section 6.09. Resignation and Removal; Appointment of Successor..............................................31 Section 6.10. Acceptance of Appointment by Successor.........................................................32 Section 6.11. Merger, Conversion, Consolidation or Succession to Business....................................32 Section 6.12. Maintenance of Agencies........................................................................33 Section 6.13. Money for Certificate Payments to Be Held in Trust.............................................34 Section 6.14. Registration of Equipment Notes in Trustee's Name..............................................34 Section 6.15. Representations and Warranties of Trustee......................................................35 Section 6.16. Withholding Taxes; Information Reporting; Tax Returns..........................................35 Section 6.17. Trustee's Liens................................................................................36 ARTICLE VII. THE COMPANY Section 7.01. Maintenance of Corporate Existence.............................................................36 Section 7.02. Consolidation, Merger, Etc.....................................................................36 ARTICLE VIII. CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE Section 8.01. The Company to Furnish Trustee with Names and Addresses of Certificateholders..................37 Section 8.02. Preservation of Information; Communications to Certificateholders..............................37 Section 8.03. Reports by the Company.........................................................................38 ARTICLE IX. SUPPLEMENTAL TRUST AGREEMENTS Section 9.01. Supplemental Trust Agreements Without Consent of Certificateholders............................39 Section 9.02. Supplemental Trust Agreements with Consent of Certificateholders...............................39
-ii- Section 9.03. Documents Affecting Immunity or Indemnity......................................................40 Section 9.04. Execution of Supplemental Trust Agreements.....................................................40 Section 9.05. Effect of Supplemental Trust Agreements........................................................40 Section 9.06. Reference in Certificates to Supplemental Trust Agreements.....................................41 ARTICLE X. AMENDMENTS TO TRANSACTION DOCUMENTS Section 10.01. Amendments and Supplements to Transaction Documents............................................41 ARTICLE XI. TERMINATION OF TRUST Section 11.01. Termination of the Trust.......................................................................41 ARTICLE XII. MISCELLANEOUS PROVISIONS Section 12.01. Limitation on Rights of Certificateholders.....................................................42 Section 12.02. Certificates Nonassessable and Fully Paid......................................................42 Section 12.03. Notices........................................................................................43 Section 12.04. Governing Law..................................................................................43 Section 12.05. Severability of Provisions.....................................................................43 Section 12.06. Effect of Headings and Table of Contents.......................................................43 Section 12.07. Successors and Assigns.........................................................................43 Section 12.08. Benefits of Trust Agreement....................................................................44 Section 12.09. Legal Holidays.................................................................................44 Section 12.10. Counterpart....................................................................................44 Section 12.11. Tax Treatment..................................................................................44 Section 12.12. No Partnership.................................................................................44
Exhibit A Form of Certificate Exhibit B Form of Letter of Representations Exhibit C Form of Certificate for Unlegended Certificates Exhibit D Form of Certificate to Be Delivered in Connection with Transfers Pursuant to Regulation S Exhibit E Form of Transfer Notice -iii- This PASS THROUGH TRUST AGREEMENT (this "Trust Agreement"), dated as of February 15, 2002, among TRINITY INDUSTRIES LEASING COMPANY, a Delaware corporation (the "Company"), TRINITY INDUSTRIES, INC., a Delaware corporation (the "Guarantor"), and WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual capacity but solely as trustee hereunder (unless otherwise specified) (the "Trustee"). WITNESSETH: WHEREAS, the Company and the Trustee hereby declare the creation of the Trust for the benefit of the Holders of the Certificates to be issued hereunder, and the initial Holders of the Certificates, as the grantors of the Trust, by their respective acceptances of the Certificates, hereby join in the creation of the Trust with the Trustee; WHEREAS, all Certificates will evidence fractional undivided interests in the Trust; and WHEREAS, the Trustee on behalf of the Trust shall purchase three issues of Equipment Notes issued by the Company pursuant to three separate Indentures, having the identical interest rate as, and final maturity dates not later than the final expected Regular Distribution Date of, the Certificates and shall hold such Equipment Notes in trust for the benefit of the Certificateholders. NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I. DEFINITIONS Section 1.01. Definitions. For all purposes of this Trust Agreement, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms used herein that are defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular; (2) all references in this Trust Agreement to designated "Articles", "Sections" and other subdivisions are to the designated Articles, Sections and other subdivisions of this Trust Agreement; and (3) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or other subdivision. "Act" when used with respect to any Holder, has the meaning specified in Section 1.04. -1- "Affiliate" of any specified Person, means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authorized Agent" means any Paying Agent or Registrar. "Book-Entry Certificates" means a beneficial interest in the Certificates, ownership and transfers of which shall be made through book entries by a Clearing Agency. "Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in New York, New York, or the city in which the Trustee or the Indenture Trustee maintains its Corporate Trust Office are authorized or obligated by law, executive order, or governmental decree to be closed. "Certificate" means any one of the certificates executed and authenticated by the Trustee, substantially in the form of Exhibit A hereto. "Certificate Account" means the account or accounts created and maintained pursuant to Section 4.01(a). "Certificate Owner" means, when used in Section 3.09, the Person for whom a Clearing Agency Participant acts. "Certificated Certificates" has the meaning specified in Section 3.01(d). "Certificateholder or Holder" means the Person in whose name a Certificate is registered in the Register, except when used in connection with a Book-Entry Certificate, where such term shall mean the Person who holds an interest in such Book-Entry Certificate through a Clearing Agency pursuant to Section 3.06. "Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. "Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects, directly or indirectly, book entry transfers and pledges of securities deposited with the Clearing Agency. "Clearstream" means Clearstream Banking, societe anonyme. "Closing Date" means February 15, 2002. "Code" means the Internal Revenue Code of 1986, as amended. -2- "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, and any successor agency. "Company" means Trinity Industries Leasing Company, a Delaware corporation, its successors in interest and permitted assigns. "Consideration" has the meaning specified in Section 2.01(a). "Corporate Trust Office" with respect to the Trustee and the Indenture Trustee, means the Corporate Trust Administration department of such trustee in the city at which at any particular time its corporate trust business shall be principally administered. "Depository" means The Depository Trust Company, and any successor entity to the Depository as depositary for the Certificates. "Direction" has the meaning specified in Section 1.04(c). "Distribution Date" means any Regular Distribution Date or Special Distribution Date. "Equipment Note" means any of the equipment notes issued under an Indenture, including without limitation any equipment note issued under such Indenture in replacement or substitution therefor, held by the Trustee. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, or any successor federal statute. "Euroclear" means Euroclear Bank S.A./N.V. "Event of Default" means an event described in Section 5.01. "Fractional Undivided Interest" means the fractional undivided interest in the Trust that is evidenced by a Certificate. "Global Certificates" has the meaning specified in Section 3.01(d). "Guarantor" means Trinity Industries, Inc., a Delaware corporation, its successors in interest and permitted assigns. "Holder" has the meaning specified in the definition of "Certificateholder or Holder". "Indenture" means any of the [A] Trust Indenture and Security Agreement, [B] Trust Indenture and Security Agreement or [C] Trust Indenture and Security Agreement, each dated as of the date hereof among the Company, the Guarantor and The Bank of New York, as trustee, providing for the issuance of a series of Equipment Notes, as each such Indenture may from time to time be amended or supplemented. -3- "Indenture Default" with respect to any Indenture, means any Indenture Event of Default as such term is defined in such Indenture. "Indenture Trustee" means The Bank of New York, as indenture trustee under each of the Indentures; and any successor to such Indenture Trustee as such trustee. "Items of Equipment" with respect to any Equipment Note, has the meaning ascribed thereto in the Indenture pursuant to which such Equipment Note was issued. "Letter of Representations" means the agreement among the Company, the Trustee and the Depository, substantially in the form attached hereto as Exhibit B. "Non-U.S. Person" means a Person that is not a U.S. person, as defined in Regulation S. "Officer's Certificate" means, with respect to the Company, a certificate signed by the Chairman, the Vice Chairman, the President, any Vice President, any Assistant Vice President, the Treasurer or the Secretary, and means, with respect to the Indenture Trustee, a certificate signed by a Responsible Officer of the Indenture Trustee and delivered to the Trustee. "Opinion of Counsel" means a written opinion of legal counsel, who may be (a) an attorney employed by the Company or the Guarantor or (b) such other counsel designated by the Company or the Indenture Trustee, whether or not such counsel is an employee of any of them and who shall be reasonably acceptable to the Trustee. "Outstanding" when used with respect to Certificates, means, as of any date of determination, all Certificates theretofore authenticated and delivered under this Trust Agreement, except: (i) Certificates theretofore cancelled by the Registrar or delivered to the Trustee or the Registrar for cancellation; (ii) Certificates for which amounts in the aggregate original principal amount of such Certificates have been theretofore deposited with the Trustee or any Paying Agent in trust for the Holders of such Certificates as provided in Section 4.01 pending distribution of such money to the Certificateholders pursuant to the final distribution payment to be made pursuant to Section 11.01 hereof; and (iii) Certificates in exchange for or in lieu of which other Certificates have been authenticated and delivered pursuant to this Trust Agreement. "Paying Agent" means the paying agent maintained and appointed pursuant to Section 6.12(b). "Permanent Regulation S Global" has the meaning specified in Section 3.01(c). -4- "Permitted Investments" means obligations of the United States of America for the payment of which the full faith and credit of the United States of America is pledged, maturing in not more than sixty (60) days or such lesser time as is necessary for payment of any Special Payments on a Special Distribution Date. "Person" means any person, including any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof. "Pool Balance" means, with respect to the Certificates as of any date, , the aggregate unpaid principal amount of the Equipment Notes held in the Pass Through Trust on that date plus any amounts in respect of principal of the Equipment Notes held by the Pass Through Trustee and not yet distributed. The Pool Balance as of any Regular Distribution Date or Special Distribution Date shall be computed after giving effect to the payment of principal, if any, on the Equipment Notes or other Trust Property held in the Trust and the distribution thereof to be made on such date. "Pool Factor" means, with respect to any Certificate as of any date, the quotient (rounded to the seventh decimal place, with 0.00000005 being rounded upward) computed by dividing (i) the Pool Balance as of such date by (ii) the original aggregate face amount of the Certificates. The Pool Factor as of any Regular Distribution Date or Special Distribution Date shall be computed after giving effect to the payment of principal, if any, on the Equipment Notes or other Trust Property held in the Trust and the distribution thereof to be made on such date. "Private Placement Legend" has the meaning specified in Section 3.02(a). "QIB" means a "qualified institutional buyer" as defined in Rule 144A. "Record Date" means (i) for Scheduled Payments to be distributed on any Regular Distribution Date, other than the final distribution, the 15th day (whether or not a Business Day) preceding such Regular Distribution Date and (ii) for Special Payments to be distributed on any Special Distribution Date, other than the final distribution, the 15th day (whether or not a Business Day) preceding such Special Distribution Date. "Register and Registrar" means the register maintained and the registrar appointed pursuant to Section 3.05. "Regular Distribution Date" means, with respect to distributions of Scheduled Payments, each date designated as such in this Trust Agreement, until payment of all the Scheduled Payments to be made under the Equipment Notes held in the Trust have been made or until such Equipment Notes have been redeemed or otherwise prepaid in full. "Regulation S" means Regulation S under the Securities Act. "Regulation S Certificated Certificates" has the meaning specified in Section 3.01(d). -5- "Regulation S Global" has the meaning specified in Section 3.01(c). "Request" means a written request by the Company setting forth the subject matter of the request accompanied by an Officer's Certificate and an Opinion of Counsel as provided in Section 1.02. "Responsible Officer" when used with respect to the initial Trustee or the initial Indenture Trustee, means any officer in the Corporate Trust Office; when used with respect to any successor Trustee or successor Indenture Trustee, means the chairman or vice-chairman of the board of directors or trustees, the chairman or vice-chairman of the executive or standing committee of the board of directors or trustees, the president, the chairman of the committee on trust matters, any vice-president, any second vice-president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the comptroller and any assistant comptroller; and, when used with respect to the Trustee or the Indenture Trustee, also means any other officer of the Trustee or the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Restricted Global" has the meaning specified in Section 3.01(b). "Rule 144A" means Rule 144A under the Securities Act. "Scheduled Payment", with respect to a Distribution Date, means any payment (other than a Special Payment) of principal or interest on an Equipment Note, due from the obligor thereon, which payment represents the payment of principal at the stated maturity of such Equipment Note or any regularly scheduled installment of principal at the due date thereof, or the payment of regularly scheduled interest accrued on such Equipment Note. "Securities Act" means the Securities Act of 1933, as amended from time to time. "Special Distribution Date" means (i) with respect to any payment described in clause (i) of the definition of Special Payment, the day on which such prepayment is scheduled to occur pursuant to the terms of the applicable Indenture and (ii) with respect to any Special Payment relating to an Equipment Note other than as described in clause (i) of the definition of Special Payments, 20 days after the earliest day for which it is practicable for the Trustee to give notice pursuant to Section 4.02(c). "Special Payment", with respect to an Equipment Note, means (i) any payment of principal, premium, if any, and interest on such Equipment Note resulting from the redemption of such Equipment Note pursuant to Section 2.12 of the applicable Indenture, except a payment described in clause (iii) below, (ii) any payment of principal and interest (including any interest accruing upon default) on, or any other amount in respect of, such Equipment Note upon an Indenture Event of Default in respect thereof or upon the exercise of remedies under the Indenture relating to such Equipment Note, (iii) any Scheduled Payment or any Special Payment referred to in clause (i) of this definition which is not in fact paid within five days of the -6- Distribution Date applicable thereto or (iv) any proceeds from the sale of any Equipment Note by the Trustee pursuant to Article V hereof and "Special Payments" means all of such Special Payments. "Special Payments Account" means the account or accounts created and maintained pursuant to Section 4.01(b). "Specified Investments" means (i) direct obligations of the United States of America and agencies thereof for which the full faith and credit of the United States is pledged, (ii) obligations fully guaranteed by the United States of America, (iii) certificates of deposit issued by, or bankers' acceptances of, or time deposits with, any bank, trust company or national banking association incorporated or doing business under the laws of the United States of America or one of the States thereof having combined capital and surplus and retained earnings of at least five hundred million dollars ($500,000,000) (including the Indenture Trustee or the Trustee if such conditions are met), (iv) commercial paper of companies (including the Company), banks, trust companies or national banking associations incorporated or doing business under the laws of the United States of America or one of the States thereof and in each case having a rating assigned to such commercial paper by Standard & Poor's Ratings Group, a division of the McGraw Hill Companies, Inc., or Moody's Investors Service, Inc. (or, if neither such organization shall rate such commercial paper at any time, by any nationally recognized rating organization in the United States of America) equal to the highest rating assigned by such organization, and (v) repurchase agreements with any financial institution having a combined capital and surplus of at least seven hundred and fifty million dollars ($750,000,000) fully collateralized by obligations of the type described in clauses (i) through (iv) above; provided that if all of the above investments are unavailable, the entire amount to be invested may be used to purchase Federal funds from an entity described in (iii) above; and provided, further that no investment shall be eligible as a "Specified Investment" unless it is held to maturity and the final maturity or date of return of such investment is 91 days or less from the date of purchase thereof. "Temporary Regulation S Global" has the meaning specified in Section 3.01(c). "Transaction Documents" means, with respect to any Equipment Note, the related Indenture, as each such document may hereafter be amended or supplemented in accordance with its respective terms. "Trust" means the trust created by this Trust Agreement, the estate of which consists of the Trust Property. "Trust Property" means the Equipment Notes held as the property of the Trust created hereby and all monies at any time paid thereon and all monies due and to become due thereunder, funds from time to time deposited in the Certificate Account and the Special Payments Account and any proceeds from the sale by the Trustee pursuant to Article V hereof of any Equipment Note. -7- "Trustee" means the institution executing this Trust Agreement not in its individual capacity but solely in its capacity as trustee hereunder (unless otherwise specified), or its successor in interest, and any successor trustee appointed as provided herein. "U.S. Certificated Certificates" has the meaning specified in Section 3.01(d). "U.S. Person" has the meaning specified in Rule 902 under the Securities Act. Section 1.02. Compliance Certificates and Opinions. Upon any application or request by the Company or the Indenture Trustee to the Trustee to take any action under any provision of this Trust Agreement, the Company or the Indenture Trustee, as the case may be, shall furnish to the Trustee an Officer's Certificate stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Trust Agreement relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Trust Agreement relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Trust Agreement shall include: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 1.03. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters and any such Person may certify or give an opinion as to such matters in one or several documents. Any Opinion of Counsel stated to be based on the opinion of other counsel shall be accompanied by a copy of such other opinion. -8- Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Trust Agreement, they may, but need not, be consolidated and form one instrument. Section 1.04. Acts of Holders. (a) Any direction, consent, waiver or other action provided by this Trust Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company or the Indenture Trustee. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Trust Agreement and (subject to Section 6.01) conclusive in favor of the Trustee, the Company and the Indenture Trustee, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or such other officer and where such execution is by an officer of a corporation or association or a member of a partnership, on behalf of such corporation, association or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner which the Trustee deems sufficient. (c) In determining whether the Holders of the requisite Fractional Undivided Interests of Certificates outstanding have given any direction, consent or waiver (a "Direction"), under this Trust Agreement, Certificates owned by the Company, the Guarantor or any Affiliate of any such Person shall be disregarded and deemed not to be Outstanding under this Trust Agreement for purposes of any such determination. In determining whether the Trustee shall be protected in relying upon any such Direction, only Certificates which the Trustee has actual knowledge of such ownership shall be so disregarded. Notwithstanding the foregoing, (i) if any such Person owns 100% of the Certificates Outstanding, such Certificates shall not be so disregarded as aforesaid, and (ii) if any amount of Certificates so owned by any such Person have been pledged in good faith, such Certificates shall not be disregarded as aforesaid if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Certificates and that the pledgee is not the Company, the Guarantor or any Affiliate of any such Persons. (d) Any Direction or other action by the Holder of any Certificate shall bind the Holder of every Certificate issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such action is made upon such Certificate. -9- (e) Except as otherwise provided in Section 1.04(c), Certificates owned by or pledged to any Person shall have an equal and proportionate benefit under the provisions of this Trust Agreement, without preference, priority, or distinction as among all of the Certificates. ARTICLE II. ACQUISITION OF EQUIPMENT NOTES; ORIGINAL ISSUANCE OF CERTIFICATES Section 2.01. Issuance of Certificates; Acquisition of Equipment Notes. Upon request of the Company and the satisfaction of the closing conditions with respect to the purchase of Equipment Notes to be purchased on the Closing Date, the Trustee shall execute, deliver and authenticate on the Closing Date Certificates equaling in the aggregate the total aggregate principal amount of the Equipment Notes expected to be purchased by the Trustee, evidencing the entire ownership of the Trust. The Trustee shall issue and sell such Certificates on the Closing Date, in authorized denominations and in such Fractional Undivided Interests, so as to result in the receipt by the Trustee of consideration in an amount equal to the aggregate principal amount of all such Equipment Notes (the "Consideration"). The Trustee shall purchase the Equipment Notes on the Closing Date at an aggregate purchase price for all such Equipment Notes equal to the amount of the Consideration. Except as provided in Sections 3.04, 3.05 and 3.08 hereof, the Trustee shall not execute or deliver Certificates in an aggregate amount in excess of the aggregate amount specified in this paragraph. Section 2.02. Acceptance by Trustee. (a) The Trustee, upon the execution and delivery of this Trust Agreement, acknowledges its acceptance of all right, title, ownership and interest in and to the Equipment Notes acquired pursuant to Section 2.01 hereof and declares that the Trustee holds and will hold such right, title, ownership and interest, together with all other property constituting the Trust Property, for the benefit of all present and future Certificateholders, upon the terms herein set forth. (b) The Company shall deliver to the Trustee, prior to or promptly following the establishment of the Trust, copies of all Indentures and the related Indenture supplements, unless the Pass Through Trustee shall have previously received such documents. (c) In connection herewith, the Trustee shall execute and deliver the Letter of Representations. Section 2.03. Limitation of Powers. The Trust is constituted solely for the purpose of making the investment in the Equipment Notes, and, except as set forth herein, the Trustee is not authorized or empowered to acquire any other investments or engage in any other activities and, in particular, the Trustee is not authorized or empowered to do anything that would cause the Trust to fail to qualify as a "grantor trust" (within the meaning of Subpart E, Part I of Subchapter J of the Code) for U.S. federal income tax purposes (including, as subject to this restriction, acquiring any Item of Equipment (as defined in the respective Indentures) by bidding on the Equipment Notes or otherwise, or taking any action with respect to any such Item of Equipment once acquired). -10- ARTICLE III. THE CERTIFICATES Section 3.01. Form of Certificates. (a) The Certificates shall be in registered form without coupons and shall be substantially in the form attached hereto as Exhibit A, with such omissions, variations and insertions as are permitted by this Trust Agreement, and may have such letters, numbers or other marks of identification and such legends or endorsements printed, lithographed or engraved thereon, as may be required to comply with the rules of any Clearing Agency or to conform to any usage in respect thereof, or as may, consistently herewith, be prescribed by the Trustee or by the officer executing such Certificates, such determination by said officer to be evidenced by such officer signing the Certificates. (b) Certificates offered and sold in reliance on Rule 144A shall be issued initially in the form of a permanent global Certificate in registered form, substantially in the form set forth in Exhibit A (the "Restricted Global"), registered in the name of a nominee of the Depository, deposited with the Trustee, as custodian for the Depository, duly executed and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of a Restricted Global may from time to time be increased or decreased by adjustments made on the records of the Registrar as hereinafter provided. (c) Certificates offered and sold in offshore transactions in reliance on Regulation S shall be issued initially in the form of a temporary global Certificate in registered form substantially in the form set forth in Exhibit A (the "Temporary Regulation S Global") registered in the name of a nominee of the Depository for the accounts of Euroclear and Clearstream, deposited on behalf of the purchasers of the Certificates represented thereby with the Trustee, as custodian for the Depository, duly executed and authenticated by the Trustee as hereinafter provided. At any time following March 27, 2002, upon receipt by the Trustee and the Company of a certificate substantially in the form of Exhibit C hereto, one or more permanent global Certificates in registered form substantially in the form set forth in Exhibit A (the "Permanent Regulation S Global" and, together with the Temporary Regulation S Global, the "Regulation S Global") duly executed and authenticated by the Trustee as hereinafter provided shall be deposited with the Trustee, as custodian for the Depository which shall reflect on its books and records the date and a decrease in the principal amount of the Temporary Regulation S Global in an amount equal to the principal amount of the beneficial interest in the Temporary Regulation S Global transferred. The aggregate principal amount of a Regulation S Global may from time to time be increased or decreased by adjustments made in the records of the Trustee, as custodian for the Depository or its nominee, as herein provided. (d) Certificates issued pursuant to Section 3.06 in exchange for interests in the Regulation S Global shall be in the form of definitive Certificates in registered form substantially in the form set forth in Exhibit A (the "Regulation S Certificated Certificates"). Certificates issued pursuant to Section 3.06 in exchange for interests in the Restricted Global shall be in the form of definitive Certificates in registered form substantially in the form set forth in Exhibit A (the "U.S. Certificated Certificates"). -11- The Regulation S Certificated Certificates and the U.S. Certificated Certificates are sometimes collectively referred to herein as the "Certificated Certificates." The Restricted Global and Regulation S Global are sometimes collectively herein referred to as the "Global Certificates." The Certificated Certificates shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner determined by the officers executing such Certificates, as evidenced by their execution of such Certificates. Section 3.02. Restrictive Legends. (a) Certificate Legends. Each Restricted Global, Temporary Regulation S Global and U.S. Certificated Certificate shall bear the legend (the "Private Placement Legend") set forth below on the face thereof: THIS PASS THROUGH CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS PASS THROUGH CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS PASS THROUGH CERTIFICATE, BY ITS ACCEPTANCE HEREOF, AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS PASS THROUGH CERTIFICATE MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT PURCHASER OF THIS PASS THROUGH CERTIFICATE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. (b) Global Certificate Legend. Each Global Certificate shall also bear the following legend on the face thereof: UNLESS THIS GLOBAL CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR -12- OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.07 OF THE TRUST AGREEMENT REFERRED TO HEREIN. (c) Each Certificate shall bear the following legend on the face thereof: BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT EITHER (I) IT IS NOT (A) AN "EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA, (B) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, (C) AN ENTITY THE UNDERLYING ASSETS OF WHICH INCLUDE THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR (D) A GOVERNMENTAL OR OTHER PLAN THAT IS SUBJECT TO ANY LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, OR (II) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR INTEREST THEREIN BY SUCH HOLDER WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA, SECTION 4975 OF THE CODE OR ANY SUBSTANTIALLY SIMILAR LAW FOR WHICH AN EXEMPTION IS NOT AVAILABLE. Section 3.03. Execution, Authentication and Denomination of Certificates. (a) The Certificates shall be executed on behalf of the Trustee by manual or facsimile signature of a Responsible Officer of the Trustee. Certificates bearing the manual or facsimile signature of an individual who was, at the time when such signature was affixed, authorized to sign on behalf of the Trustee shall be valid and binding obligations of the Trustee, notwithstanding that such individual has ceased to be so authorized prior to the authentication and delivery of such Certificates or did not hold such office at the date of such authentication and delivery. No Certificate shall be entitled to any benefit under this Trust Agreement, or be valid for any purposes, unless there appears on such Certificate a certificate of authentication substantially in the form set forth in Exhibit A hereto executed by the Trustee by manual signature, and such certificate upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder. All Certificates shall be dated the date of their authentication. (b) The Certificates shall be issued in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof, except that one Certificate may be in a denomination of less than $1,000. (c) The Trustee, on the Closing Date, upon the order of the Company, will cause to be authenticated and delivered, simultaneously with the sale, assignment, and transfer to the Trustee of the Equipment Notes pursuant to Section 2.01 hereof, Certificates duly authenticated by the Trustee, in authorized denominations equaling in the aggregate the aggregate principal amount of the Equipment Notes so purchased and evidencing the entire ownership of the Trust. Section 3.04. Temporary Certificates. Pending the preparation of definitive Certificates, the Trustee may execute, authenticate and deliver temporary Certificates which are -13- printed, lithographed, typewritten, or otherwise produced, in any denomination, containing substantially the same terms and provisions as set forth in Exhibit A, except for such appropriate insertions, omissions, substitutions and other variations relating to their temporary nature as the officer executing such temporary Certificates may determine, as evidenced by such officer's execution of such temporary Certificates. If temporary Certificates are issued, the Trustee will cause definitive Certificates to be prepared without unreasonable delay. After the preparation of definitive Certificates, the temporary Certificates shall be exchangeable for definitive Certificates upon surrender of the temporary Certificates at the Corporate Trust Office of the Trustee, or at the office or agency of the Trustee maintained in accordance with Section 6.12, without charge to the holder. Upon surrender for cancellation of any one or more temporary Certificates, the Trustee shall execute, authenticate and deliver in exchange therefor definitive Certificates of authorized denominations of a like aggregate Fractional Undivided Interest. Until so exchanged, such temporary Certificates shall in all respects be entitled to the same benefits under this Trust Agreement as definitive Certificates. Section 3.05. Registration of Transfer and Exchange of Certificates. The Trustee shall cause to be kept at the office or agency to be maintained by it in accordance with the provisions of Section 6.12 a register (the "Register") in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee shall initially be the registrar (the "Registrar") for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. Upon surrender for registration of transfer of any Certificate at the Corporate Trust Office or such other office or agency, the Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate Fractional Undivided Interest. At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate Fractional Undivided Interest, upon surrender of the Certificates to be exchanged at any such office or agency. Whenever any Certificates are so surrendered for exchange, the Trustee shall execute, authenticate and deliver the Certificates that the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar. No service charge shall be made to a Certificateholder for any registration of transfer or exchange of Certificates, but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Certificates. All Certificates surrendered for registration of transfer and exchange shall be cancelled and subsequently destroyed by the Trustee. -14- Section 3.06. Book-Entry Provisions for Global Certificates. (a) Each Restricted Global and Regulation S Global initially shall (i) be registered in the name of the Depository or the nominee of such Depository, (ii) be delivered to the Trustee as custodian for such Depository and (iii) bear legends as set forth in Section 3.02 hereof. Clearing Agency Participants shall have no rights under this Trust Agreement with respect to any Global Certificate held on their behalf by the Depository, or the Trustee as its custodian, or under any Global Certificate, and the Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Certificate for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and the Clearing Agency Participants, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Certificate. (b) Transfers of a Global Certificate shall be limited to transfers of such Global Certificate in whole, but not in part, to the Depository, its successors or their respective nominees. Transfers of interests in one Global Certificate to parties who will hold the interests through the same Global Certificate will be effected in the ordinary way in accordance with the respective rules and operating procedures of the Depository, Euroclear or Clearstream, as the case may be, and the provisions of Section 3.07 hereof. In addition, U.S. Certificated Certificates or Regulation S Certificated Certificates shall be issued to all beneficial owners in exchange for their beneficial interests in a Restricted Global or a Regulation S Global, respectively, if (i) the Depository notifies the Company that it is no longer willing or able to continue as a depositary or the Depositary ceases to be a Clearing Agency and a successor is not appointed within 90 days of such notice or cessation, (ii) the Company, at its option, advises the Trustee in writing that it elects to cause the issuance of Certificated Certificates or (iii) after the occurrence of an Event of Default, Holders of Book-Entry Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust, by Act of said Holders delivered to the Company and the Trustee, advise the Trustee and the Depository through the Clearing Agency Participants in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interests of the Holders. (c) Any beneficial interest in one of the Global Certificates that is transferred to a Person who takes delivery in the form of an interest in the other Global Certificate will, upon transfer, cease to be an interest in such Global Certificate and become an interest in the other Global Certificate and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Global Certificate for as long as it remains such an interest. (d) In connection with the transfer of all the beneficial interests in a Restricted Global or Regulation S Global to beneficial owners pursuant to paragraph (b) of this Section 3.06, the Restricted Global or Regulation S Global, as the case may be, shall be deemed to be surrendered to the Trustee for cancellation, and the Trustee shall execute, authenticate and deliver, to each beneficial owner identified by the Depository in exchange for its beneficial interest in the Restricted Global or Regulation S Global, as the case may be, an equal aggregate -15- principal amount of U.S. Certificated Certificates or Regulation S Certificated Certificates, as the case may be, of authorized denominations. (e) The registered holder of a Global Certificate may grant proxies and otherwise authorize any Person, including Clearing Agency Participants and Persons that may hold interests through Clearing Agency Participants, to take any action which a Holder is entitled to take under this Trust Agreement or the Certificates. (f) Whenever this Trust Agreement requires or permits actions to be taken based upon instructions or directions of Holders of Certificates evidencing a specified percentage of the Fractional Undivided Interests in the Trust, the Depository shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Certificateholders or Clearing Agency Participants owning or representing, respectively, such required percentage of the Fractional Undivided Interests in the Trust and has delivered such instructions to the Trustee; provided that the Trustee shall have no obligation to determine whether the Depository has in fact received any such instructions. Section 3.07. Special Transfer Provisions. (a) Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer to a QIB (excluding Non-U.S. Persons): (i) If the Certificates to be transferred consists of Certificated Certificates or an interest in a Temporary Regulation S Global, the Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on the form of Certificate stating, or has otherwise advised the Company and the Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee which has signed the certification provided for on the form of Certificate stating, or has otherwise advised the Company and the Registrar in writing, that it is purchasing the Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Trust and/or the Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration under the Securities Act provided by Rule 144A. (ii) If the transferor is a Clearing Agency Participant holding a beneficial interest in the Restricted Global, upon receipt by the Registrar of the documents referred to in clause (i) and instructions given in accordance with the Depository's and the Registrar's procedures, the Registrar shall reflect on its books and records the date and an increase in the principal amount of such Restricted Global in an amount equal to the principal amount of the interests U.S. Certificated Certificates or in the Temporary Regulation S Global, as the case may be, to be transferred, and the Trustee shall cancel such Certificated Certificates or decrease the amount of such Temporary Regulation S Global so transferred. -16- (b) Transfers of Interests in Permanent Regulation S Global or Regulation S Certificated Certificates to U.S. Persons. The Registrar shall register any transfer of interests in the Permanent Regulation S Global or Regulation S Certificated Certificates without requiring any additional certification. (c) Transfers to Non-U.S. Persons at Any Time. The following provisions shall apply with respect to any transfer of a Certificate to a Non-U.S. Person: (i) The Registrar shall register any proposed transfer to any Non-U.S. Person if the Certificate to be transferred is an interest in a Restricted Global only upon receipt of a certificate substantially in the form of Exhibit D from the proposed transferor. (ii) (A) If the proposed transferor is a Clearing Agency Participant holding a beneficial interest in a Restricted Global, upon receipt by the Registrar of (x) the documents required by paragraph (i) and (y) instructions in accordance with the Depository's and the Registrar's procedures, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of such Restricted Global in an amount equal to the principal amount of the beneficial interest in the Restricted Global to be transferred, and (B) the proposed transferee is a Clearing Agency Participant, upon receipt by the Registrar of instructions given in accordance with the Depository's and the Registrar's procedures, the Registrar shall reflect on its books and records the date and an increase in the principal amount of such Regulation S Global in an amount equal to the principal amount of the U.S. Certificated Certificates or the Restricted Global, as the case may be, to be transferred, and the Trustee shall cancel such Certificated Certificates, if any, so transferred or decrease the amount of the Restricted Global. (d) Private Placement Legend. Upon the registration of transfer, exchange or replacement of Certificates not bearing the Private Placement Legend, the Registrar shall deliver Certificates that do not bear the Private Placement Legend. Upon the registration of transfer, exchange or replacement of Certificates bearing the Private Placement Legend, the Registrar shall deliver only Certificates that bear the Private Placement Legend unless either (i) the Private Placement Legend is no longer required by Section 3.02 or (ii) there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. (e) General. By its acceptance of any Certificate bearing the Private Placement Legend, each Holder of such a Certificate acknowledges the restrictions on transfer of such Certificate set forth in this Trust Agreement and in the Private Placement Legend and agrees that it will transfer such Certificate only as provided in this Trust Agreement. The Registrar shall not register a transfer of any Certificate unless such transfer complies with the restrictions on transfer of such Certificate set forth in this Trust Agreement. In connection with any transfer of Certificates, each Certificateholder agrees by its acceptance of the Certificates to furnish to the Registrar and the Trustee such certificates, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the Securities Act; provided that the Registrar shall not be -17- required to determine the sufficiency of any such certifications, legal opinions or other information. Until such time as no Certificates remain outstanding, the Registrar shall retain, in accordance with its customary procedures, copies of all letters, notices and other written communications received pursuant to Section 3.06 or this Section 3.07. The Trustee shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar. (f) Notwithstanding anything contained herein to the contrary, subject to compliance with the provisions of this Section 3.07, the Trustee shall not be responsible for independently ascertaining whether any transfer in fact complies with the registration requirements or exemptions therefrom under the Securities Act or the Securities Act of 1934, as amended, applicable state or other federal securities law or the Investment Company Act of 1940, as amended. Section 3.08. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any mutilated Certificate is surrendered to the Registrar, or the Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (b) there is delivered to the Registrar and the Trustee such security, indemnity or bond, as may be required by them to save each of them harmless, then, in the absence of notice to the Registrar or the Trustee that such Certificate has been acquired by a protected purchaser, the Trustee shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like Fractional Undivided Interest with the same final Distribution Date. In connection with the issuance of any new Certificate under this Section 3.08, the Trustee shall require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and the Registrar) connected therewith. Any duplicate Certificate issued pursuant to this Section 3.08 shall constitute conclusive evidence of the appropriate Fractional Undivided Interest in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time. Section 3.09. Persons Deemed Owners. Prior to due presentation of a Certificate for registration of transfer, the Trustee, the Registrar, and any Paying Agent of the Trustee shall treat the person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions pursuant to Section 4.02 and for all other purposes whatsoever, and neither the Trustee, the Registrar, nor any Paying Agent of the Trustee shall be affected by any notice to the contrary. Section 3.10. Cancellation. All Certificates surrendered for payment, registration of transfer or exchange shall, if surrendered to any Person or party hereto other than the Registrar, be delivered by such Person to the Registrar for cancellation. No Certificates shall be authenticated in lieu of or in exchange for any Certificates cancelled as provided in this Section, except as expressly permitted by this Trust Agreement. All cancelled Certificates held by the Registrar shall be destroyed and a certification of their destruction delivered to the Trustee. -18- Section 3.11. Limitation of Liability for Payments. All payments or distributions made to Certificateholders under this Trust Agreement shall be made only from the Trust Property and only to the extent that the Trustee shall have sufficient income or proceeds from the Trust Property to make such payments in accordance with the terms of Article IV of this Trust Agreement. Each Holder of a Certificate, by its acceptance of such Certificate, agrees that it will look solely to the income and proceeds from the Trust Property to the extent available for distribution to the Holder thereof as provided in this Trust Agreement. ARTICLE IV. DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS Section 4.01. Certificate Account and Special Payments Account. (a) The Trustee shall establish and maintain on behalf of the Certificateholders the Certificate Account with the Trustee as one or more non-interest bearing accounts. The Trustee shall hold the Certificate Account in trust for the benefit of the Certificateholders, and shall make or permit withdrawals therefrom only as provided in this Trust Agreement. On each day when a Scheduled Payment is made under any Indenture to the Trustee, as holder of the Equipment Notes issued under such Indenture, the Trustee upon receipt shall immediately deposit the aggregate amount of such Scheduled Payment in the Certificate Account. (b) The Trustee shall establish and maintain on behalf of the Certificateholders the Special Payments Account with the Trustee as one or more accounts, which shall be non-interest bearing except as provided in Section 4.04. The Trustee shall hold the Special Payments Account in trust for the benefit of the Certificateholders, and shall make or permit withdrawals therefrom only as provided in this Trust Agreement. On each day when a Special Payment is made under any Indenture to the Trustee, as holder of the Equipment Notes issued under such Indenture, the Trustee upon receipt shall immediately deposit the aggregate amount of such Special Payments in the Special Payments Account. (c) The Trustee shall present to the Indenture Trustee to which an Equipment Note relates such Equipment Note on the date of its stated final maturity, or in the case of any Equipment Note which is to be prepaid in whole pursuant to the relevant Indenture, on the applicable prepayment date under such Indenture. Section 4.02. Distributions from Certificate Account and Special Payments Account. (a) Subject to Section 6.07(b), on each Regular Distribution Date or as soon thereafter as the Trustee has confirmed receipt of the payment of the Scheduled Payments due on the Equipment Notes, the Trustee shall distribute out of the Certificate Account the entire amount deposited therein pursuant to Section 4.01(a). There shall be so distributed to each Certificateholder of record on the Record Date with respect to such Regular Distribution Date (other than as provided in Section 11.01 concerning the final distribution) by check mailed to such Certificateholder at the address appearing in the Register such Certificateholder's pro rata share (based on the aggregate Fractional Undivided Interest held by such Certificateholder) of the aggregate amount in the Certificate Account, except that, with respect to Certificates -19- registered on the Record Date in the name of the Depository (or its nominee), such distribution shall be made by wire transfer in immediately available funds to the account designated by the Depository (or such nominee). (b) On each Special Distribution Date with respect to any Special Payment or as soon thereafter as the Trustee has confirmed receipt of the Special Payments due on the Equipment Notes or realized upon the sale of any Equipment Note, the Trustee shall distribute out of the Special Payments Account the entire amount deposited therein pursuant to Section 4.01(b). There shall be so distributed to each Certificateholder of record on the Record Date with respect to such Special Distribution Date (other than as provided in Section 11.01 concerning the final distribution) by check mailed to such Certificateholder at the address appearing in the Register such Certificateholder's pro rata share (based on the aggregate Fractional Undivided Interest held by such Certificateholder) of the aggregate amount in the Special Payments Account on account of such Special Payment, except that, with respect to Certificates registered on the Record Date in the name of the Depository (or its nominee), such distribution shall be made by wire transfer in immediately available funds to the account designated by the Depository (or such nominee). (c) The Trustee shall at the expense of the Company cause notice of each Special Payment to be mailed to each Holder of a Certificate at his address as it appears in the Register. In the event of prepayment of Equipment Notes, such notice shall be mailed not less than 20 days prior to the date any such Special Payment is scheduled to be distributed. In the case of any other Special Payments, such notice shall be mailed as soon as practicable after the Trustee has confirmed that it has received funds for such Special Payment and shall state the Special Distribution Date for such Special Payment, which shall occur 20 days after the date of such notice of Special Payment or (if such 20th day is not practicable) as soon as practicable thereafter. Notices mailed by the Trustee shall set forth: (i) the Special Distribution Date and the Record Date therefor (except as otherwise provided in Section 11.01), (ii) the amount of the Special Payment for each $1,000 face amount Certificate and the amount thereof constituting principal, premium, if any, and interest, (iii) the reason for the Special Payment, and (iv) if the Special Distribution Date is the same date as a Regular Distribution Date, the total amount to be received on such date for each $1,000 face amount Certificate. If the amount of premium payable upon the prepayment of an Equipment Note has not been calculated at the time that the Trustee mails notice of a Special Payment, it shall be sufficient if the notice sets forth the other amounts to be distributed and states that any premium received will also be distributed. Section 4.03. Statements to Certificateholders. (a) On each Regular Distribution Date and Special Distribution Date, the Trustee will include with each distribution to -20- Certificateholders of record a statement, giving effect to such distribution to be made on such Regular Distribution Date or Special Distribution Date, as the case may be, setting forth the following information (per a $1,000 face amount Certificate as to (i) and (ii) below): (i) the amount of such distribution allocable to principal and the amount allocable to premium, if any; and (ii) the amount of such distribution allocable to interest; and (iii) the Pool Balance and the Pool Factor. With respect to the Certificates registered in the name of the Depository or its nominee, on the Record Date prior to each Regular Distribution Date and Special Distribution Date, the Trustee will request from the Depository a securities position listing setting forth the names of all the Clearing Agency Participants reflected on the Depository's books as holding interests in the Certificates on such Record Date. On each Regular Distribution Date and Special Distribution Date, the Trustee will mail to each such Clearing Agency Participant the statement described above and will make available additional copies as requested by such Clearing Agency Participants for forwarding to holders of the Certificates. (b) Within a reasonable period of time after the end of each calendar year but not later than the latest date permitted by law, the Trustee shall furnish to each Person who at any time during such calendar year was a Certificateholder of record a statement containing the sum of the amounts determined pursuant to clauses (a) (i) and (a) (ii) with respect to the Trust for such calendar year or, in the event such Person was a Certificateholder of record during a portion of such calendar year, for the applicable portion of such year, and such other items as are readily available to the Trustee and which a Certificateholder shall reasonably request in writing as necessary for the purpose of such Certificateholder's preparation of its Federal income tax returns. With respect to Certificates registered in the name of the Depository or its nominee, such statement and such other items shall be prepared on the basis of information supplied to the Trustee by the Clearing Agency Participants and shall be delivered by the Trustee to such Clearing Agency Participants to be available for forwarding by such Clearing Agency Participants to the holders of interests in the Certificates. Section 4.04. Investment of Special Payment Moneys. Any money received by the Trustee pursuant to Section 4.01(b) representing a Special Payment which is not to be promptly distributed shall, to the extent practicable, be invested in Permitted Investments by the Trustee pending distribution of such Special Payment pursuant to Section 4.02. Any investment made pursuant to this Section 4.04 shall be in such Permitted Investments having maturities not later than the date that such moneys are required to be used to make the payment required under Section 4.02 on the applicable Special Distribution Date and the Trustee shall hold any such Permitted Investments until maturity. The Trustee shall have no liability with respect to any investment made pursuant to this Section 4.04, other than by reason of the willful misconduct or gross negligence (or negligence in the handling of funds) of the Trustee. All income and earnings from such investments shall be distributed on such Special Distribution Date as part of such Special Payment. -21- ARTICLE V. DEFAULT Section 5.01. Events of Default. If any Indenture Default under any Indenture (an "Event of Default") shall occur and be continuing, then, and in each and every case, so long as such Event of Default shall be continuing, the Trustee may, but shall have no duty to, vote all of the Equipment Notes held in the Trust to which such Event of Default relates, and upon the direction of the holders of Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust, the Trustee shall vote a corresponding majority of such Equipment Notes, in favor of directing the Indenture Trustee to which such Event of Default relates, to declare the unpaid principal amount of the Equipment Notes then outstanding to which such Event of Default relates and accrued interest thereon to be due and payable under, and in accordance with the provisions of, the relevant Indenture. In addition, subject to Section 5.04, if an Indenture Default shall have occurred and be continuing under any Indenture, the Trustee may, but shall have no duty to, and upon the direction of the holders of Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust, the Trustee shall, in accordance with the relevant Indenture, vote the Equipment Notes held in the Trust to which such Event of Default relates to direct the Indenture Trustee regarding the exercise of remedies provided in Article IV of such Indenture. The Trustee shall so vote only Equipment Notes issued under an Indenture with respect to which an Indenture Default has occurred and is continuing. In addition, after an Event of Default shall have occurred and be continuing with respect to any Equipment Notes, the Trustee may, but shall be under no duty to, in its discretion, and upon the direction of the Certificateholders evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust shall, by such officer or agent as it may appoint, sell, convey, transfer and deliver such Equipment Note or Equipment Notes, without recourse to or warranty by the Trustee or any Certificateholder, to any Person. In any such case, the Trustee shall sell, assign, contract to sell or otherwise dispose of and deliver such Equipment Note or Equipment Notes in one or more parcels at public or private sale or sales, at any location or locations at the option of the Trustee, all upon such terms and conditions as it may reasonably deem advisable and at such prices as it may reasonably deem advisable, for cash. If the Trustee so decides or is required to sell or otherwise dispose of any Equipment Note pursuant to this Section, the Trustee shall take such of the actions described above as it may reasonably deem most effective to complete the sale or other disposition of such Equipment Note, so as to provide for the payment in full of all amounts due on the Certificates. The Trustee shall give notice to the Company promptly after any such sale. Notwithstanding the foregoing, any action taken by the Trustee under this Section shall not, in the reasonable judgment of the Trustee, be adverse to the best interests of the Certificateholders. Section 5.02. Incidents of Sale of Equipment Notes. Upon any sale of all or any part of the Equipment Notes made either under the power of sale given under this Trust Agreement or otherwise for the enforcement of this Trust Agreement, the following shall be applicable: -22- (1) Certificateholders and Trustee May Purchase Equipment Notes. Any Certificateholder, the Trustee in its individual or any other capacity or any other Person may bid for and purchase any of the Equipment Notes, and upon compliance with the terms of sale, may hold, retain, possess and dispose of such Equipment Notes in their or its or his own absolute right without further accountability. (2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the Trustee or of the officer making such sale shall be a sufficient discharge to any purchaser for his purchase money, and, after paying such purchase money and receiving such receipt, such purchaser or his personal representative or assigns shall not be obliged to see to the application of such purchase money, or be in any way answerable for any loss, misapplication or nonapplication thereof. (3) Application of Moneys Received upon Sale. Any moneys collected by the Trustee upon any sale made either under the power of sale given by this Trust Agreement or otherwise for the enforcement of this Trust Agreement, shall be applied as provided in Section 4.02. Section 5.03. Judicial Proceedings Instituted by Trustee. (a) If there shall be a failure to make payment of the principal of, premium, if any, or interest on any Equipment Note, then the Trustee, in its own name, and as trustee of an express trust, as holder of such Equipment Notes, shall be, to the extent permitted by and in accordance with the terms of the Transaction Documents, entitled and empowered to institute any suits, actions or proceedings at law, in equity or otherwise, for the collection of the sums so due and unpaid on such Equipment Notes and may prosecute any such claim or proceeding to judgment or final decree with respect to the whole amount of any such sums so due and unpaid. (b) The Trustee in its own name, or as trustee of an express trust, or as attorney-in-fact for the Certificateholders, or in any one or more of such capacities (irrespective of whether distributions on the Certificates shall then be due and payable, or the payment of the principal on the Equipment Notes shall then be due and payable, as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand to the Indenture Trustee for the payment of overdue principal, premium (if any) or interest on the Equipment Notes), shall be entitled and empowered to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Certificateholders allowed in any receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or any other judicial proceedings relative to the Company or a Lessor, their respective creditors or property. Any receiver, assignee, trustee, liquidator, sequestrator (or similar official) in any such judicial proceeding is hereby authorized by each Certificateholder to make payments in respect of such claim to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Certificateholders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts owed to the Trustee under Section 6.07. Nothing contained in this Trust Agreement shall be deemed to give to the Trustee any right to accept or consent to any plan of reorganization or otherwise by -23- action of any character in any such proceeding to waive or change in any way any right of any Certificateholder. Section 5.04. Control by Certificateholders. The Certificateholders evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee under this Trust Agreement, including any right of the Trustee as holder of the Equipment Notes, provided that: (1) such direction shall not be in conflict with any rule of law or with this Trust Agreement and would not involve the Trustee in personal liability or expense for which indemnification acceptable in form and substance to the Trustee has not been provided, (2) the Trustee shall not determine that the action so directed would be unjustly prejudicial to the Certificateholders not taking part in such direction, (3) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and (4) if an Indenture Default under any Indenture shall have occurred and be continuing, such direction shall not obligate the Trustee to vote more than a corresponding majority of the related Equipment Notes held by the Trust in favor of directing any action by the Indenture Trustee with respect to such Indenture Default. Section 5.05. Waiver of Past Defaults. The Certificateholders evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust may on behalf of the Certificateholders of all the Certificates waive any past Event of Default hereunder and its consequences or may instruct the Trustee to waive any past default under any Indenture or this Trust Agreement and its consequences, except a default (1) in the deposit of any Scheduled Payment or Special Payment under Section 4.01 or in the distribution of any payment under Section 4.02 on the Certificates, or (2) in the payment of the principal of (or premium, if any) or interest on any Equipment Notes, or (3) in respect of a covenant or provision hereof which under Article IX hereof cannot be modified or amended without the consent of the Certificateholder of each Outstanding Certificate affected. Upon any such waiver, such default shall cease to exist with respect to this Trust Agreement, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Trust Agreement and any direction given by the Trustee on behalf of such holders to the Indenture Trustee shall be annulled with respect thereto; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent -24- thereon. Upon any such waiver, the Trustee shall vote the Equipment Notes issued under the relevant Indenture to waive the corresponding Indenture Default. Section 5.06. Undertaking to Pay Court Costs. All parties to this Trust Agreement, and each Certificateholder by his acceptance of a Certificate, shall be deemed to have agreed that any court may in its discretion require, in any suit, action or proceeding for the enforcement of any right or remedy under this Trust Agreement, or in any suit, action or proceeding against the Trustee for any action taken or omitted by it as Trustee hereunder, the filing by any party litigant in such suit, action or proceeding of an undertaking to pay the costs of such suit, action or proceeding, and that such court may, in its discretion, assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, action or proceeding, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided, however, that the provisions of this Section shall not apply to (a) any suit, action or proceeding instituted by any Certificateholder or group of Certificateholders evidencing Fractional Undivided Interests aggregating more than 10% of the Trust, (b) any suit, action or proceeding instituted by any Certificateholder for the enforcement of the distribution of payments pursuant to Section 4.02 hereof on or after the respective due dates expressed herein or (c) any suit, action or proceeding instituted by the Trustee. Section 5.07. Right of Certificateholders to Receive Payments Not to Be Impaired. Anything in this Trust Agreement to the contrary notwithstanding, including, without limitation, Section 5.08 hereof, the right of any Certificateholder to receive distributions of payments required pursuant to Section 4.02 hereof on the Certificates when due, or to institute suit for the enforcement of any such payment on or after the applicable Distribution Date or Special Distribution Date, shall not be impaired or affected without the consent of such Certificateholder. Section 5.08. Certificateholders May Not Bring Suit Except Under Certain Conditions. A Certificateholder shall not have the right to institute any suit, action or proceeding at law or in equity or otherwise with respect to this Trust Agreement, for the appointment of a receiver or for the enforcement of any other remedy under this Trust Agreement, unless: (1) such Certificateholder previously shall have given written notice to the Trustee of a continuing Event of Default; (2) the Certificateholders evidencing Fractional Undivided Interests aggregating not less than a majority in interest of the Trust shall have requested the Trustee in writing to institute such action, suit or proceeding and shall have offered to the Trustee indemnity as provided in Section 6.03(e); (3) the Trustee shall have refused or neglected to institute any such action, suit or proceeding for 60 days after receipt of such notice, request and offer of indemnity; and (4) no direction inconsistent with such written request has been given to the Trustee during such 60 day period by the Certificateholders evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust. -25- It is understood and intended that no one or more of the Certificateholders shall have any right in any manner whatever hereunder or under the Certificates to (i) surrender, impair, waive, affect, disturb or prejudice any property which is part of the Trust Property or the lien of any Indenture on any property subject thereto, or the rights of the Certificateholders or the holders of the Equipment Notes, (ii) obtain or seek to obtain priority over or preference to any other such Holder or (iii) enforce any right under this Trust Agreement, except in the manner herein provided and for the equal, ratable and common benefit of all the Certificateholders subject to the provisions of this Trust Agreement. Section 5.09. Remedies Cumulative. Every remedy given hereunder to the Trustee or to any of the Certificateholders shall not be exclusive of any other remedy or remedies, and every such remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter given by statute, law, equity or otherwise. ARTICLE VI. THE TRUSTEE Section 6.01. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default: (1) the Trustee undertakes to perform such duties as are specifically set forth in this Trust Agreement, and no implied covenants or obligations shall be read into this Trust Agreement against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Trust Agreement; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Trust Agreement. (b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Trust Agreement, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided however, that the Trustee shall take no action that would cause the Trust to cease to qualify as a "grantor trust" (within the meaning of Subpart E, Part I, Subchapter J of the Code) for U.S. federal income tax purposes. (c) No provision of this Trust Agreement shall be construed to relieve the Trustee from liability for its own grossly negligent action (or negligent action in the handling of funds), its own grossly negligent failure to act (or negligent failure to act in the handling of funds), or its own willful misconduct, except that: -26- (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Certificateholders evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust (unless this Trust Agreement expressly provides for a different aggregate amount) relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee on behalf of the Holders or the Trust, or managing the Trust or exercising any trust or power conferred upon the Trustee for the benefit of such Holders or the Trust, under this Trust Agreement; and (4) no provision of this Trust Agreement shall require the Trustee to expend or risk its own funds in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. (d) Whether or not herein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. (e) The Trustee is authorized and directed to execute such other documents and take such other action as Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust specifically direct in written instructions delivered to the Trustee; provided, however, that the Trustee shall not be required to take any action if the Trustee shall determine, or shall be advised by counsel, that such action is likely to result in personal liability or is contrary to applicable law or any agreement to which the Trustee is a party or would cause the Trust to cease to qualify as a "grantor trust" (within the meaning of Subpart E, Part I, Subchapter J of the Code) for U.S. federal income tax purposes. The Trustee shall have the right to obtain an opinion of counsel to the effect that such action would not cause the Trust to cease to qualify as a "grantor trust" (within the meaning of Subpart E, Part I, Subchapter J of the Code) for U.S. federal income tax purposes. Section 6.02. Notice of Defaults. As promptly as practicable, and in any event within 90 days after, the occurrence of any default (as such term is defined below) hereunder actually known to the Trustee, the Trustee shall transmit by mail to the Company and the Indenture Trustee in accordance with Section 12.03 and to all Certificateholders, as their names and addresses appear in the Register, notice of such default, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Equipment Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive -27- committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Certificateholders. For the purpose of this Section, the term "default" means an event which is, or after notice or lapse of time or both would become, an Event of Default pursuant to any Indenture. Section 6.03. Certain Rights of Trustee. Except as otherwise provided in Section 6.01: (a) the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Request; (c) whenever in the administration of this Trust Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate of the Company or the Indenture Trustee; (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Certificateholders pursuant to this Trust Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document; and (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (h) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Trust Agreement, other than any liabilities arising out of its own gross negligence (or negligence in the handling of funds) or willful misconduct; -28- (i) the permissive rights of the Trustee to do things enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its gross negligence (or negligence in the handling of funds) or wilful misconduct; (j) the Trustee shall not be required to give any note or surety in respect of the execution of the trusts and powers hereunder or otherwise in respect of the premises; and (k) except for (i) a payment default and (ii) any other event of which the Trustee has "actual knowledge", which event is or, with the giving of notice or the passage of time or both, would constitute an Event of Default, the Trustee shall not be deemed to have notice of any such default or event unless specifically notified in writing of such event by the Company, any Indenture Trustee or any Holder; as used herein, the term "actual knowledge" means the actual fact or statement of knowing, without any duty to make any investigation with regard thereto. Section 6.04. Not Responsible for Recitals or Issuance of Certificates. The recitals contained herein and in the Certificates, except the certificates of authentication, shall not be taken as the statements of the Trustee, and the Trustee assumes no responsibility for their correctness. Subject to Section 6.15, the Trustee makes no representations as to the validity or sufficiency of this Trust Agreement, any Indenture, the Equipment Notes or the Certificates, except that the Trustee hereby represents and warrants that this Trust Agreement has been, and each Certificate will be, executed and delivered by one of its officers who is duly authorized to execute and deliver such document on its behalf. Section 6.05. May Hold Certificates. The Trustee, any Paying Agent, the Registrar or any other agent, in their respective individual or any other capacity, may become the owner or pledgee of Certificates and may otherwise deal with the Company or the Indenture Trustee with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other agent. Section 6.06. Money Held in Trust. Money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required herein or by law and neither the Trustee nor any Paying Agent shall have any liability for interest upon any such moneys except as provided for herein. Section 6.07. Compensation and Reimbursement. (a) The Company agrees: (1) to pay, or cause to be paid, to the Trustee from time to time such compensation for all services rendered by it hereunder as the Company and the Trustee may agree in writing from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse, or cause to be reimbursed, the Trustee upon its request for all reasonable out of pocket expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Trust Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the gross negligence (or negligence in -29- the handling of funds), willful misconduct or bad faith of the Trustee or as may be incurred due to the Trustee's breach of its representations, warranties and agreements set forth in Sections 6.04, 6.15 and 6.17 or the Trustee's failure to perform any of its obligations hereunder in accordance with its standard of care; and (3) to indemnify, or cause to be indemnified, the Trustee, solely in its individual capacity, for, and to hold it harmless against, any loss, liability, tax (other than any tax referred to in the next paragraph or any tax attributable to the Trustee's compensation for serving as such), cost or expense incurred without gross negligence (or negligence in the handling of funds), willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of any Trust, including the costs and expenses of (a) defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder or (b) contesting the imposition of any such tax, except in each case for any such loss, liability, tax, cost or expense incurred by reason of the Trustee's breach of its representations and warranties set forth in Section 6.04 or 6.15 or the Trustee's failure to perform any of its obligations hereunder in accordance with its standard of care. The Trustee shall notify the Company promptly of any claim or tax for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel with the consent of the Company and the Company will pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made or any taxes paid, in settlement or otherwise, without its consent. (b) In addition, the Trustee shall be entitled to reimbursement from, and shall have a lien prior to the Certificates upon, all property and funds held or collected by the Trustee in its capacity as Trustee for any tax (and if an Event of Default shall have occurred and be continuing, any and all amounts then due and payable to the Trustee under this Trust Agreement which is not paid by the Company within 30 days after demand to the Company for such payment) incurred without gross negligence, bad faith or willful misconduct, on its part, arising out of or in connection with the acceptance or administration of the Trust created hereby (other than any tax attributable to the Trustee's compensation for serving as such), including any costs and expenses incurred in contesting the imposition of any such tax. If the Trustee reimburses itself for any such tax it will within 30 days mail a brief report setting forth the circumstances thereof to the Company and to all Certificateholders as their names and addresses appear in the Register. (c) If and when the Trustee incurs expenses or renders service after an Event of Default arising as a result of any bankruptcy or insolvency of the Company, the expenses and compensation for such services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration in any such bankruptcy or insolvency proceeding. Section 6.08. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be an institution organized and doing business under the laws of the United States of America or of any state, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus (together with that of its parent) of at least -30- $100,000,000, and subject to supervision or examination by Federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Section 6.09. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 6.10. (b) The Trustee may resign at any time by giving written notice thereof to the Company, the Authorized Agents and the Indenture Trustee. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Company and the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. (c) The Trustee may be removed at any time by Act of the Holders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust delivered to the Trustee and to the Company and the Indenture Trustee. (d) If at any time: (1) the Trustee shall cease to be eligible under Section 6.08 and shall fail to resign after written request therefor by the Company or by any Certificateholder; or (2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any case, (i) the Company may remove the Trustee or (ii) subject to Section 5.06, any Certificateholder who has been a bona fide Holder of a Certificate for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (e) If a Responsible Officer of the Trustee shall obtain actual knowledge of an Avoidable Tax (as hereinafter defined) which has been or is likely to be asserted, the Trustee shall promptly notify the Company thereof and shall, within 30 days of such notification, resign hereunder unless within such 30-day period the Trustee shall have received notice that the Company has agreed to pay such tax. The Company shall promptly appoint a successor Trustee in a jurisdiction where there are no Avoidable Taxes. As used herein an Avoidable Tax means a state or local tax: (i) upon (w) the Trust, (x) the Trust Property, (y) Holders of the Certificates or (z) the Trustee for which the Trustee is entitled to seek reimbursement from the Trust Property, and (ii) which would be avoided if the Trustee were located in another state, or jurisdiction -31- within a state, within the United States. A tax shall not be an Avoidable Tax if the Company shall agree to pay, and shall pay, such tax. (f) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Trustee for any reason, the Company shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust delivered to the Company, the Indenture Trustee and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed as provided above. If no successor Trustee shall have been so appointed as provided above and accepted appointment in the manner hereinafter provided, any Certificateholder who has been a bona fide Holder of a Certificate for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. (g) The successor Trustee shall give notice of the resignation and removal of the Trustee and appointment of the successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Certificates as their names and addresses appear in the Register. Each notice shall include the name of such successor Trustee and the address of its Corporate Trust Office. Section 6.10. Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 6.07. Upon request of any such successor Trustee, the Company, the retiring Trustee and such successor Trustee shall execute and deliver any and all instruments containing such provisions as shall be necessary or desirable to transfer and confirm to, and for more fully and certainly vesting in, such successor Trustee all such rights, powers and trusts. No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. Section 6.11. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided -32- such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Certificates shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Certificates so authenticated with the same effect as if such successor Trustee had itself authenticated such Certificates. Section 6.12. Maintenance of Agencies. (a) There shall at all times be maintained an office or agency where Certificates may be presented or surrendered for registration of transfer or for exchange, and for payment thereof and where notices and demands to or upon the Trustee in respect of the Certificates or of this Trust Agreement may be served. Such office or agency shall be initially at the Corporate Trust Office. Written notice of each such other office or agency and of any change of location thereof shall be given by the Trustee to the Company, the Indenture Trustee and the Certificateholders. In the event that no such office or agency shall be maintained or no such notice of location or of change of location shall be given, presentations and demands may be made and notices may be served at the Corporate Trust Office of the Trustee. (b) There shall at all times be a Registrar and a Paying Agent hereunder. Each such Authorized Agent shall be a bank or trust company, shall be a corporation organized and doing business under the laws of the United States or any state, with a combined capital and surplus (together with that of its parent) of at least $100,000,000, and shall be authorized under such laws to exercise corporate trust powers, subject to supervision by Federal or state authorities. The Trustee shall initially be the Paying Agent and, as provided in Section 3.05, Registrar hereunder. Each Registrar shall furnish to the Trustee, at stated intervals of not more than six months, and at such other times as the Trustee may request in writing, a copy of the Register. (c) Any corporation into which any Authorized Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authorized Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authorized Agent, shall be the successor of such Authorized Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authorized Agent or such successor corporation. (d) Any Authorized Agent may at any time resign by giving written notice of resignation to the Trustee, the Company and the Indenture Trustee. The Company may, and at the request of the Trustee shall, at any time terminate the agency of any Authorized Agent by giving written notice of termination to such Authorized Agent and to the Trustee. Upon the resignation or termination of an Authorized Agent or in case at any time any such Authorized Agent shall cease to be eligible under this Section (when, in either case, no other Authorized Agent performing the functions of such Authorized Agent shall have been appointed), the Company shall promptly appoint one or more qualified successor Authorized Agents, reasonably satisfactory to the Trustee, to perform the functions of the Authorized Agent which has resigned or whose agency has been terminated or who shall have ceased to be eligible under this Section. -33- The Company shall give written notice of any such appointment made by it to the Trustee and the Indenture Trustee; and in each case the Trustee shall mail notice of such appointment to all Holders as their names and addresses appear on the Register. (e) The Company agrees to pay, or cause to be paid, from time to time to each Authorized Agent the compensation as set forth in the schedule agreed to by each Authorized Agent and the Company for its services and to reimburse it for its reasonable expenses. Section 6.13. Money for Certificate Payments to Be Held in Trust. All moneys deposited with any Paying Agent for the purpose of any payment on Certificates shall be deposited and held in trust for the benefit of the Holders of the Certificates entitled to such payment, subject to the provisions of this Section. Moneys so deposited and held in trust shall constitute a separate trust fund for the benefit of the Holders of the Certificates with respect to which such money was deposited. The Trustee will cause each Paying Agent other than the Trustee to execute and deliver to it an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will: (1) hold all sums held by it for payments on Certificates in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by any obligor upon the Certificates in the making of any such payment; and (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Trustee may at any time, for the purpose of obtaining the satisfaction and discharge of this Trust Agreement or for any other purpose, direct any Paying Agent to pay to the Trustee all sums held in trust by such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Section 6.14. Registration of Equipment Notes in Trustee's Name. The Trustee agrees that all Equipment Notes and Specified Investments, if any, shall be issued in the name of the Trustee or its nominee and held by the Trustee, or, if not so held, the Trustee or its nominee shall be reflected as the owner of such Equipment Notes or Specified Investments, as the case may be, in the register of the issuer of such Equipment Notes or Specified Investments. In no event shall the Trustee invest in, or hold, Equipment Notes or Specified Investments in a manner that would cause the Trustee not to have the ownership interest in such Equipment Notes or Specified Investments under the applicable provisions of the Uniform Commercial Code in effect where the Trustee holds such Equipment Notes or Specified Investments, or other applicable law then in effect. -34- Section 6.15. Representations and Warranties of Trustee. The Trustee hereby represents and warrants that: (i) the Trustee is a Delaware banking corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware; (ii) the Trustee has full corporate power, authority and legal right under the laws of the State of Delaware and the laws of the United States pertaining to its banking and trust powers to execute, deliver, and perform this Trust Agreement and has taken all necessary action to authorize the execution, delivery, and performance by it of this Trust Agreement; (iii) the execution, delivery and performance by the Trustee of this Trust Agreement will not contravene any law, rule or regulation of the State of Delaware or any United States governmental authority or agency regulating the Trustee's banking or trust powers or any judgment or order applicable to or binding on the Trustee and will not contravene or result in any breach of, or constitute a default under, the Trustee's charter or by-laws or the provision of any indenture, mortgage, contract or other agreement to which it is a party or by which it or any of its properties is bound; (iv) the execution, delivery and performance by the Trustee of this Trust Agreement will not require the authorization, consent, or approval of, the giving of notice to, the filing or registration with, or the taking of any other action in respect of, any United States or Delaware governmental authority or agency regulating the banking and trust activities of the Trustee; and (v) this Trust Agreement has been duly executed and delivered by the Trustee and constitutes the legal, valid, and binding agreements of the Trustee, enforceable in accordance with its terms, provided that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and general principles of equity. Section 6.16. Withholding Taxes; Information Reporting; Tax Returns. The Trustee, as trustee of a grantor trust, shall exclude and withhold from each distribution of principal, premium, if any, and interest and other amounts due hereunder or under the Certificates any and all federal withholding taxes applicable thereto as required by federal law. The Trustee agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld with respect to any amounts payable in respect of the Certificates, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the Holders of the Certificates, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each Holder of a Certificate appropriate documentation showing the payment thereof, together with such additional documentary evidence as such Holders may reasonably request from time to time. The Trustee agrees to file any other information reports and tax returns and forms as it may be required to file relating to such withholding taxes and shall otherwise file any other information reports as it may be -35- requested and directed to file under applicable law. The Trustee shall be permitted to rely upon any properly completed certificate presented by a Holder of Certificates claiming an exemption from or reduction of withholding taxes, absent bad faith on the part of the Trustee. Each Certificateholder agrees to indemnify (on an after-tax basis) and hold harmless the Trustee against any United States withholding taxes and related interest and penalties which the Trustee fails to withhold on payments to such Certificateholder as a result of the invalidity of any certificate or form provided by such Certificateholder to the Trustee. Any amount payable by a Certificateholder hereunder shall be paid within 30 days after receipt by a Certificateholder of a written demand thereof. Section 6.17. Trustee's Liens. The Trustee, in its individual capacity, agrees that it will at its own cost and expense promptly take any action as may be necessary to duly discharge and satisfy in full any mortgage, pledge, lien, charge, encumbrance, security interest or claim ("Trustee's Liens") on or with respect to the Trust Property which is either (i) attributable to the Trustee in its individual capacity and which is unrelated to the transactions contemplated by this Trust Agreement or the other Transaction Documents, or (ii) which is attributable to the Trustee as trustee hereunder or in its individual capacity and which arise out of acts or omissions which are prohibited by this Trust Agreement. ARTICLE VII. THE COMPANY Section 7.01. Maintenance of Corporate Existence. The Company, at its own cost and expense, will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights and franchises, except as otherwise specifically permitted in Section 7.02; provided, however, that the Company shall not be required to preserve any right or franchise if the Company determines that the preservation thereof is no longer desirable in the conduct of the business of the Company. Section 7.02. Consolidation, Merger, Etc. (a) Each of the Company and the Guarantor agrees that it shall not consolidate with or merge into any other corporation under circumstances where the Company or the Guarantor is not the surviving corporation or convey, transfer or lease substantially all of its assets as an entirety to any Person (other than the Guarantor) unless the corporation formed by such consolidation or into which the Company or Guarantor is merged or the Person that acquires by conveyance, transfer or lease substantially all of the assets of the Company or the Guarantor, as the case may be, as an entirety shall be organized and validly existing under the laws of the United States of America or any state thereof or the District of Columbia, and such corporation or Person executes and delivers to the Trustee an agreement in form and substance reasonably satisfactory to the Trustee containing an assumption by such successor or transferee entity of the due and punctual performance and observance of each covenant and condition of this Trust Agreement. (b) Upon any such consolidation, merger, conveyance, transfer or lease, the successor or transferee entity shall succeed to, and be substituted for, and may exercise every -36- right and power of, the Company or the Guarantor, as the case may be, under this Trust Agreement with the same effect as if such successor or transferee entity had been named as the Company or the Guarantor herein. (c) Immediately after giving effect to such transaction, no Event of Default or event which with notice or the passage of time or both would be an Event of Default shall have occurred and be continuing. (d) The Trustee may receive an Officer's Certificate and an Opinion of Counsel of the Company or the Guarantor, as the case may be, as conclusive evidence that any such consolidation, merger, conveyance, transfer or lease, and any such assumption, complies with the provisions of this Section 7.02. ARTICLE VIII. CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE Section 8.01. The Company to Furnish Trustee with Names and Addresses of Certificateholders. The Company will furnish to the Trustee within 15 days after each Record Date with respect to a Scheduled Payment, and at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list, in such form as the Trustee may reasonably require, of all information in the possession or control of the Company as to the names and addresses of the Holders of Certificates, in each case as of a date not more than 15 days prior to the time such list is furnished; provided, however, that so long as the Trustee is the sole Registrar, no such list need be furnished; and provided further, however, that no such list need be furnished for so long as a copy of the Register is being furnished to the Trustee pursuant to Section 6.12(b). Section 8.02. Preservation of Information; Communications to Certificateholders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Holders of Certificates contained in the most recent list furnished to the Trustee as provided in Section 6.12(b) or Section 8.01, as the case may be, and the names and addresses of Holders of Certificates received by the Trustee in its capacity as Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 6.12(b) or Section 8.01, as the case may be, upon receipt of a new list so furnished. (b) If three or more Holders of Certificates (such Holders hereinafter referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Certificate for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Certificates with respect to their rights under this Trust Agreement or under the Certificates and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, at its election, either: -37- (ii) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 8.02(a); or (iii) inform such applicants as to the approximate number of Holders of Certificates whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 8.02(a), and as to the approximate cost of mailing to such Certificateholders the form of proxy or other communication, if any, specified in such application. If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Certificateholder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 8.02(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five Business Days after such tender, the Trustee shall mail to such applicants, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Certificates or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the applicants shall obtain a court order, after notice to the Trustee and opportunity for hearing, so directing the Trustee, the Trustee shall mail copies of such material to all such Certificateholders with reasonable promptness after the entry of such order and the renewal of the applicants' tender. (c) Every Holder of Certificates, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Certificates in accordance with Section 8.02(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 8.02(b). Section 8.03. Reports by the Company. The Company will: (a) while any of the Certificates remain outstanding, make available, upon request, to any seller of the Certificates or any beneficial interest therein the information specified in Rule 144A(d)(4) under the Securities Act unless such information is not required to be so furnished pursuant to such Rule 144A(d)(4); (b) file with the Trustee, within 30 days after the Guarantor is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or if the Guarantor is not required to file information, documents or reports pursuant to either of said Sections, then it will file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and -38- periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. ARTICLE IX. SUPPLEMENTAL TRUST AGREEMENTS Section 9.01. Supplemental Trust Agreements Without Consent of Certificateholders. Without the consent of the Holder of any Certificates, the Company may, and the Trustee (subject to Section 9.03 and upon receipt of an Officer's Certificate of the Company) shall, at any time and from time to time enter into one or more agreements supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes so long as such agreement shall not cause the Trust to cease to qualify as a "grantor trust" (within the meaning of Subpart E, Part I, Subchapter J of the Code) for U.S. federal income tax purposes: (1) to evidence the succession of another corporation to the Company, and the assumption by any such successor of the obligations of the Company herein contained; or (2) to add to the covenants of the Company, for the benefit of the Holders of the Certificates, or to surrender any right or power herein conferred upon the Company; (3) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein or to make any other provisions with respect to matters or questions arising under this Trust Agreement as may be necessary or desirable; provided that any such action shall not adversely affect the interests of the Holders of the Certificates; or (4) to evidence and provide for the acceptance of appointment under this Trust Agreement of a successor Trustee with respect to the Trust and to add or change any of the provisions of this Trust Agreement as shall be necessary to provide for or facilitate the administration of the Trust, provided that any such action shall not adversely affect the interests of the Holders of the Certificates. Section 9.02. Supplemental Trust Agreements with Consent of Certificateholders. With the consent of the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust, by Act of said Holders delivered to the Company and the Trustee, the Company may, and the Trustee (subject to Section 9.03) shall, enter into an agreement or agreements supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Trust Agreement or of modifying in any manner the rights and obligations of the Holders of the Certificates under this Trust Agreement; provided, however, that no such supplemental agreement shall, without the consent of the Holder of each Outstanding Certificate affected thereby: -39- (1) reduce in any manner the amount of, or delay the timing of, any receipt by the Trustee of payments on the Equipment Notes or distributions that are required to be made herein on any Certificate, or change any date of payment on any Certificate, or change the place of payment where, or the coin or currency in which, any Certificate is payable, or impair the right to institute suit for the enforcement of any such payment or distribution on or after the Regular Distribution Date or Special Distribution Date applicable thereto; or (2) permit the disposition of any Equipment Note in the Trust Property except as permitted by this Trust Agreement, or otherwise deprive any Certificateholder of the benefit of the ownership of the Equipment Notes in the Trust; or (3) reduce the percentage of the aggregate Fractional Undivided Interests of the Trust which is required for any such supplemental agreement, or reduce such percentage required for any waiver (of compliance with certain provisions of this Trust Agreement or certain defaults hereunder and their consequences) provided for in this Trust Agreement; (4) modify any of the provisions of this Section or Section 5.05, except to increase any such percentage or to provide that certain other provisions of this Trust Agreement cannot be modified or waived without the consent of the Holder of each Certificate affected thereby; or (5) cause the Trust to cease to qualify as a "grantor trust" (within the meaning of Subpart E, Part I, Subchapter J of the Code) for U.S. federal income tax purposes. It shall not be necessary for any Act of Certificateholders under this Section to approve the particular form of any proposed supplemental agreement, but it shall be sufficient if such Act shall approve the substance thereof. Section 9.03. Documents Affecting Immunity or Indemnity. If in the opinion of the Trustee any document required to be executed by it pursuant to the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity or indemnity in favor of the Trustee under this Trust Agreement, the Trustee may in its discretion decline to execute such document. Section 9.04. Execution of Supplemental Trust Agreements. In executing, or accepting the additional trusts created by, any supplemental agreement permitted by this Article or the modifications thereby of the trusts created by this Trust Agreement, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental agreement is authorized or permitted by this Trust Agreement. Section 9.05. Effect of Supplemental Trust Agreements. Upon the execution of any supplemental agreement under this Article, this Trust Agreement shall be modified in accordance therewith, and such supplemental agreement shall form a part of this Trust Agreement for all purposes; and every Holder of Certificates theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. -40- Section 9.06. Reference in Certificates to Supplemental Trust Agreements. Certificates authenticated and delivered after the execution of any supplemental agreement pursuant to this Article may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental agreement; and, in such case, suitable notation may be made upon Outstanding Certificates after proper presentation and demand. ARTICLE X. AMENDMENTS TO TRANSACTION DOCUMENTS Section 10.01. Amendments and Supplements to Transaction Documents. In the event that the Trustee, as holder of any Equipment Note in trust for the benefit of the Certificateholders, receives a request for a consent to any amendment, modification, waiver or supplement under any Indenture, the Trustee shall forthwith send a notice of such proposed amendment, modification, waiver or supplement, to each Certificateholder registered on the Register as of such date. The Trustee shall request from the Certificateholders Directions as to (i) whether or not to direct the Indenture Trustee to take or refrain from taking any action which a holder of such Equipment Note has the option to direct, (ii) whether or not to give or execute any waivers, consents, amendments, modifications or supplements as a holder of such Equipment Note, and (iii) how to vote any Equipment Note if a vote has been called for with respect thereto. Provided such a request for Certificateholder Direction shall have been made, in directing any action or casting any vote or giving any consent as the holder of any Equipment Note, the Trustee shall vote or consent with respect to such Equipment Note in the same proportion as the Certificates were actually voted by Acts of Holders delivered to the Trustee prior to two Business Days before the Trustee directs such action or casts such vote or gives such consent. Notwithstanding the foregoing, but subject to Section 5.04, in the case that an Event of Default hereunder shall have occurred and be continuing, the Trustee may, in its own discretion and at its own direction, consent and notify the Indenture Trustee of such consent to any amendment, modification, waiver or supplement under any Indenture. Any action under an Indenture which requires the unanimous consent of all holders of the Equipment Notes outstanding under such Indenture shall require the unanimous consent of the Certificateholders. If in the opinion of the Trustee any document required to be executed by it pursuant to the terms of this Section adversely affects any interest, right, duty, immunity or indemnity in favor of the Trustee under this Trust Agreement, the Trustee may in its discretion decline to execute such document. ARTICLE XI. TERMINATION OF TRUST Section 11.01. Termination of the Trust. The respective obligations and responsibilities of the Company and the Trustee created hereby and the Trust created hereby shall terminate upon the distribution to all Certificateholders of all amounts required to be -41- distributed to them pursuant to this Trust Agreement and the disposition of all property held as part of the Trust Property; provided, however, that in no event shall the Trust created hereby continue beyond the expiration of 21 years from the death of the last survivor of the descendants of George Herbert Walker Bush, former President of the United States, living on the date of this Trust Agreement. Notice of any termination, specifying the Regular Distribution Date (or Special Distribution Date, as the case may be) upon which the Certificateholders may surrender their Certificates to the Trustee for payment of the final distribution and cancellation, shall be mailed promptly by the Trustee to Certificateholders not earlier than the 60th day and not later than the 20th day next preceding such final distribution specifying (A) the Regular Distribution Date (or Special Distribution Date, as the case may be) upon which final payment of the Certificates will be made upon presentation and surrender of Certificates at the office or agency of the Trustee therein specified, (B) the amount of any such final payment, and (C) that the Record Date otherwise applicable to such Regular Distribution Date (or Special Distribution Date, as the case may be) is not applicable, payments being made only upon presentation and surrender of the Certificates at the office or agency of the Trustee therein specified. The Trustee shall give such notice to the Registrar at the time such notice is given to Certificateholders. Upon presentation and surrender of the Certificates, the Trustee shall cause to be distributed to Certificateholders amounts distributable on such Regular Distribution Date or Special Distribution Date, as the case may be, pursuant to Section 4.02. In the event that all of the Certificateholders shall not surrender their Certificates for cancellation within six months after the date specified in the above-mentioned written notice, the Trustee shall give a second written notice to the remaining Certificateholders to surrender their Certificates for cancellation and receive the final distribution with respect thereto. In the event that any money held by the Trustee for the payment of distributions on the Certificates shall remain unclaimed for two years (or such lesser time as the Trustee shall be satisfied, after sixty days' notice from the Company, is one month prior to the escheat period provided under applicable law) after the final distribution date with respect thereto, the Trustee shall pay to the Indenture Trustee the appropriate amount of money relating to the Indenture Trustee and shall give written notice thereof to the Company. ARTICLE XII. MISCELLANEOUS PROVISIONS Section 12.01. Limitation on Rights of Certificateholders. The death or incapacity of any Certificateholder shall not operate to terminate this Trust Agreement or the Trust, nor entitle such Certificateholder's legal representatives or heirs to claim an accounting or to take any action or commence any proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations, and liabilities of the parties hereto or any of them. Section 12.02. Certificates Nonassessable and Fully Paid. Certificateholders shall not be personally liable for obligations of the Trust. The Fractional Undivided Interests -42- represented by the Certificates shall be nonassessable for any losses or expenses of the Trust or for any reason whatsoever, and Certificates upon authentication thereof by the Trustee pursuant to Section 3.02 are and shall be deemed fully paid. No Certificateholder shall have any right (except as expressly provided herein) to vote or in any manner otherwise control the operation and management of the Trust Property, the Trust established hereunder, or the obligations of the parties hereto, nor shall anything set forth herein, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association. Section 12.03. Notices. All demands, notices, and communications hereunder shall be in writing, personally delivered or mailed by certified mail return receipt requested, and shall be deemed to have been duly given upon receipt, in the case of the Company and the Guarantor, at the following address: Trinity Industries Leasing Company, 2525 Stemmons Freeway, Dallas, Texas 75207, Attention: General Counsel, and in the case of the Trustee, at the following address: Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration, or, in each case, at such other address as shall be designated by such party in a written notice to the other parties. Any notice required or permitted to be given to a Certificateholder hereunder shall be mailed by first class mail, postage prepaid, at the address of such Holder as shown in the Register. Any notice so mailed within the time prescribed in this Trust Agreement shall be conclusively presumed to have been duly given, whether or not the Certificateholder receives such notice. The Trustee shall promptly furnish the Company with a copy of each demand, notice or written communication received by the Trustee hereunder from any Certificateholder or the Indenture Trustee. Section 12.04. Governing Law. THIS TRUST AGREEMENT HAS BEEN DELIVERED IN THE STATE OF NEW YORK AND TOGETHER WITH THE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. Section 12.05. Severability of Provisions. If any one or more of the covenants, agreements, provisions, or terms of this Trust Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining covenants, agreements, provisions, or terms of this Trust Agreement and shall in no way affect the validity or enforceability of the other provisions of this Trust Agreement or the Trust, or of the Certificates or the rights of the Holders thereof. Section 12.06. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 12.07. Successors and Assigns. All covenants, agreements, representations and warranties in this Trust Agreement by the Trustee and the Company shall bind and, to the extent permitted hereby, shall inure to the benefit of and be enforceable by their respective successors and assigns, whether so expressed or not. -43- Section 12.08. Benefits of Trust Agreement. Nothing in this Trust Agreement or in the Certificates, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of Certificates, any benefit or any legal or equitable right, remedy or claim under this Trust Agreement. Section 12.09. Legal Holidays. In any case where any Regular Distribution Date or Special Distribution Date relating to any Certificate shall not be a Business Day, then (notwithstanding any other provision of this Trust Agreement) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such Regular Distribution Date or Special Distribution Date, and no interest shall accrue during the intervening period. Section 12.10. Counterpart. For the purpose of facilitating the execution of this Trust Agreement and for other purposes, this Trust Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument. Section 12.11. Tax Treatment. For United States federal income tax purposes, the Equipment Notes shall be treated as debt obligations, and interest and other income arising thereunder shall be treated as from sources within the United States in accordance with United States federal income tax principles and the Trust shall be treated as a "grantor trust" (within the meaning of Subpart E, Part I, Subchapter J of the Code) so that each Certificateholder will be treated as owning a pro rata undivided interest in the Equipment Notes. Section 12.12. No Partnership. All parties to this Trust Agreement and each Certificateholder, by his acceptance of a Certificate, specifically disavow any intent to form a partnership or joint venture for U.S. federal income tax purposes or otherwise, and agree not to make any filings or take any positions inconsistent with such intent. -44- IN WITNESS WHEREOF, the Company, the Guarantor and the Trustee have caused this Trust Agreement to be duly executed by their respective officers, all as of the day and year first above written. TRINITY INDUSTRIES LEASING COMPANY, Company By: ------------------------------- Name: Title: TRINITY INDUSTRIES, INC., Guarantor By: -------------------------------- Name: Title: WILMINGTON TRUST COMPANY, Trustee By: -------------------------------- Name: Title: -45- EXHIBIT A [FORM OF CERTIFICATE] TRINITY INDUSTRIES LEASING COMPANY 2002-1 PASS THROUGH TRUST THIS PASS THROUGH CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS PASS THROUGH CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS PASS THROUGH CERTIFICATE, BY ITS ACCEPTANCE HEREOF, AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS PASS THROUGH CERTIFICATE MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT PURCHASER OF THIS PASS THROUGH CERTIFICATE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. UNLESS THIS GLOBAL CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.07 OF THE TRUST AGREEMENT REFERRED TO HEREIN. BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT EITHER (I) IT IS NOT (A) AN "EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA, (B) A PLAN SUBJECT TO SECTION 4975 OF THE CODE, (C) AN ENTITY THE UNDERLYING ASSETS OF WHICH INCLUDE THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR (D) A GOVERNMENTAL OR OTHER PLAN THAT IS SUBJECT TO ANY LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, OR (II) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR INTEREST THEREIN BY SUCH HOLDER WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA, SECTION 4975 OF THE CODE OR ANY SUBSTANTIALLY SIMILAR LAW FOR WHICH AN EXEMPTION IS NOT AVAILABLE. -2- TRINITY INDUSTRIES LEASING COMPANY 2002-1 PASS THROUGH TRUST 7.755% Pass Through Certificate, Series 2002-1 CUSIP --------- Final Expected Regular Distribution Date: ----------- Evidencing a fractional undivided interest in a trust, the property of which includes certain equipment notes, each secured by certain railcars owned by Trinity Industries Leasing Company Certificate No. $_________ fractional Undivided Interest representing .000588235% of the Trust per $1,000 face amount THIS CERTIFIES THAT ____________, for value received, is the registered owner of a $__________ (_____________ Dollars) (as such amount may be increased or decreased from time to time as provided in the Agreement) Fractional Undivided Interest in the Trinity Industries Leasing Company 2002-1 Pass Through Trust (the "Trust") created pursuant to a Pass Through Trust Agreement dated as of February 15, 2002 (as amended from time to time, the "Agreement"), among Trinity Industries Leasing Company, a corporation incorporated under Delaware law (the "Company"), Trinity Industries, Inc., a corporation incorporated under Delaware law (the "Guarantor") and Wilmington Trust Company, as trustee (the "Trustee"), a summary of certain of the pertinent provisions of which is set forth below. To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Agreement. This Certificate is one of the duly authorized Certificates designated as "7.755% Pass Through Certificates, Series 2002-1" (herein called the "Certificates"). This Certificate is issued under and is subject to the terms, provisions, and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. The property of the Trust includes certain Equipment Notes and certain funds received in connection therewith (the "Trust Property"). Each issue of Equipment Notes is secured by a security interest in railroad rolling stock owned by the Company and fully and unconditionally guaranteed by the Guarantor. Subject to and in accordance with the terms of the Agreement, from funds then available to the Trustee, there will be distributed on each February 15 and August 15 (each, a "Regular Distribution Date"), commencing on August 15, 2002, to the Person in whose name this Certificate is registered at the close of business on the day of the month which is 15 days preceding the Regular Distribution Date, an amount in respect of the Scheduled Payments on the Equipment Notes due on such Distribution Date, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the -3- sum of such Scheduled Payments so received. Subject to and in accordance with the terms of the Agreement, in the event that Special Payments on the Equipment Notes are received by the Trustee, from funds then available to the Trustee, there shall be distributed on the applicable Special Distribution Date, to the Person in whose name this Certificate is registered at the close of business on the day of the month which is 15 days preceding the Special Distribution Date, an amount in respect of such Special Payments on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments so received. If a Regular Distribution Date or Special Distribution Date is not a Business Day, distribution shall be made on the immediately following Business Day and no additional interest shall accrue. The Special Distribution Date shall be the day of the month determined as provided in the Agreement. The Trustee shall mail notice of each Special Payment and the Special Distribution Date therefor to the Holders of the Certificates. Distributions on this Certificate will be made by the Trustee by check mailed to the Person entitled thereto, without the presentation or surrender of this Certificate or the making of any notation hereon. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Certificate will be made after notice mailed by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency of the Trustee specified in such notice. The Agreement provides that for United States federal income tax purposes, interest and other income arising under the Equipment Notes shall be treated as from sources within the United States and the Trust shall be treated as a "grantor trust" (within the meaning of Subpart E, Part I, Subchapter J of the Code) so that each Certificateholder will be treated as owning a proportionate undivided interest in the Equipment Notes. Furthermore, pursuant to the Agreement, by acceptance of a Certificate, each Certificateholder specifically disavows any intent to form a partnership or joint venture for U.S. federal income tax purposes or otherwise, and agrees not to make any filings or take any positions inconsistent with such intent. THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Reference is hereby made to the further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose. -4- IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed. WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Trustee of TRINITY INDUSTRIES LEASING COMPANY 2002-1 PASS THROUGH TRUST, By: ----------------------------------------- Name: Title: -5- [FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION] Dated: This is one of the Certificates referred to in the within-mentioned Agreement WILMINGTON TRUST COMPANY, as Trustee, By: ----------------------------------------- Authorized Signatory [Reverse of Certificate] The Certificates do not represent a direct obligation of, or an obligation guaranteed by, or an interest in, the Company or the Trustee or any Affiliate thereof. The Certificates are limited in right of payment, all as more specifically set forth on the face hereof and in the Agreement. All payments or distributions made to Certificateholders under the Agreement shall be made only from the Trust Property and only to the extent that the Trustee shall have sufficient income or proceeds from the Trust Property to make such payments in accordance with the terms of the Agreement. Each Holder of this Certificate, by its acceptance hereof, agrees that it will look solely to the income and proceeds from the Trust Property to the extent available for distribution to such Holder as provided in the Agreement. This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby. A copy of the Agreement may be examined during normal business hours at the principal office of the Trustee, and at such other places, if any, designated by the Trustee, by any Certificateholder upon request. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Certificateholders under the Agreement at any time by the Company and the Trustee with the consent of the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Register upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee in its capacity as Registrar, or by any successor Registrar, duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Registrar duly executed by the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust will be issued to the designated transferee or transferees. The Certificates are issuable only as registered Certificates without coupons in minimum denominations of $100,000 Fractional Undivided Interest and integral multiples of $1,000 in excess thereof except that one Certificate may be in a denomination of less than $1,000. As provided in the Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange, but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith. The Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat the person in whose name this Certificate is registered as the owner hereof for all purposes, and neither the Trustee, the Registrar, nor any such agent shall be affected by any notice to the contrary. The obligations and responsibilities created by the Agreement and the Trust created thereby shall terminate upon the distribution to Certificateholders of all amounts required to be distributed to them pursuant to the Agreement and the disposition of all property held as part of the Trust Property. -2- EXHIBIT B FORM OF LETTER OF REPRESENTATIONS B-1 EXHIBIT C to Trust Agreement Form of Certificate for Unlegended Certificates Wilmington Trust Company [Address] [DATE] Attention: Corporate Trust Administration Re: Trinity Industries Leasing Company 2002-1 Pass Through Trust 7.755% 2002-1 Pass Through Certificates (the "Certificates") Ladies and Gentlemen: This letter relates to $ ____________ Fractional Undivided Interest of Certificates represented by a Certificate (the "Legended Certificate") which bears a legend outlining restrictions upon transfer of such Legended Certificate. Pursuant to Section 3.01 of the Pass Through Trust Agreement (the "Agreement") dated as of February 15, 2002 relating to the Certificate, we hereby certify that we are (or we will hold such Certificate on behalf of) a person outside the United States to whom the Certificates could be transferred in accordance with Rule 904 of Regulation S promulgated under the U.S. Securities Act of 1933, as amended. Accordingly, you are hereby requested to exchange the legended certificate for an unlegended certificate representing an identical principal amount of Certificates, all in the manner provided for in the Agreement. You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S. Very truly yours, [Name of Holder] By: ---------------------------- Authorized Signature C-1 EXHIBIT D to Trust Agreement Form of Certificate to Be Delivered in Connection with Transfers Pursuant to Regulation S Wilmington Trust Company [Address] [DATE] Attention: Corporate Trust Administration Re: Trinity Industries Leasing Company 2002-1 Pass Through Trust 7.755% 2002-1 Pass Through Certificates (the "Certificates") Ladies and Gentlemen: In connection with our proposed sale of $ _______ Fractional Undivided Interest of the Certificates, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the Securities Act of 1933, as amended, and, accordingly, we represent that: 1. the offer of the Certificates was not made to a person in the United States; 2. at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States; 3. no directed selling efforts have been made by us in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and 4. the transaction is not part of a plan or scheme to evade the registration requirements of the U.S. Securities Act of 1933. You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S. Very truly yours, [Name of Transferor] By: ---------------------------- Authorized Signature D-1 EXHIBIT E to Trust Agreement [FORM OF TRANSFER NOTICE] FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto Insert Taxpayer Identification No. - -------------------------------------------------------------------------------- Please print or typewrite name and address including zip code of assignee - -------------------------------------------------------------------------------- the within Certificate and all rights thereunder, hereby irrevocably constituting and appointing ______________________________________ attorney to transfer said Certificate on the books of the Company with full power of substitution in the premises. [THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES OTHER THAN UNLEGENDED REGULATION S GLOBAL AND UNLEGENDED REGULATION S CERTIFICATED CERTIFICATES] In connection with any transfer of this Certificate occurring prior to the date which is the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising that: [Check One] [ ](a) this Certificate is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder. or [ ](b) this Certificate is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Certificate and the Trust Agreement. If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to register this Certificate in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 3.07 of the Indenture shall have been satisfied. E-1 Date: --------------- ----------------------------------------------- NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED. The undersigned represents and warrants that it is purchasing this Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company and/or the Trust as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A. Dated: -------------- ----------------------------------------------- NOTICE: To be executed by an executive officer E-2 EX-4.2 4 d94365ex4-2.txt [A] TRUST INDENTURE AND SECURITY AGREEMENT EXHIBIT 4.2 ================================================================================ [A] TRUST INDENTURE AND SECURITY AGREEMENT Dated as of February 15, 2002 among TRINITY INDUSTRIES LEASING COMPANY and TRINITY INDUSTRIES, INC. and THE BANK OF NEW YORK, Trustee ================================================================================ TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS Section 1.01 Certain Definitions.........................................................................3 ARTICLE II THE EQUIPMENT NOTES Section 2.01 Form of Equipment Notes.....................................................................3 Section 2.02 Execution, Authentication and Denominations.................................................4 Section 2.03 Registrar and Paying Agent..................................................................4 Section 2.04 Paying Agent to Hold Money in Trust.........................................................5 Section 2.05 Transfer and Exchange.......................................................................5 Section 2.06 Replacement Equipment Notes.................................................................6 Section 2.07 Outstanding Equipment Notes.................................................................6 Section 2.08 Cancellation................................................................................7 Section 2.09 Application of Payments to Principal Amount and Interest....................................7 Section 2.10 Termination of Interest in Indenture Estate.................................................7 Section 2.11 Equally and Ratably Secured.................................................................7 Section 2.12 Redemption; Notice of Redemption............................................................7 ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE INDENTURE ESTATE Section 3.01 Payments Prior to Indenture Event of Default................................................9 Section 3.02 [Reserved]..................................................................................9 Section 3.03 Payments After Indenture Event of Default...................................................9 Section 3.04 Other Payments.............................................................................10 ARTICLE IV REMEDIES OF THE TRUSTEE UPON AN INDENTURE EVENT OF DEFAULT Section 4.01 Indenture Events of Default................................................................10 Section 4.02 Acceleration; Rescission and Annulment.....................................................11 Section 4.03 Remedies with Respect to Indenture Estate..................................................12 Section 4.04 Waiver of Existing Defaults................................................................14 Section 4.05 Control by Majority........................................................................14
i Section 4.06 Limitation on Suits........................................................................15 Section 4.07 Rights of Holders to Receive Payment.......................................................15 Section 4.08 Delay or Omission Not Waiver...............................................................15 Section 4.09 Remedies Cumulative........................................................................15 Section 4.10 Discontinuance of Proceedings..............................................................16 Section 4.11 Undertaking for Costs......................................................................16 ARTICLE V THE TRUSTEE Section 5.01 Acceptance of Trusts and Duties............................................................16 Section 5.02 Certain Duties and Responsibilities........................................................16 Section 5.03 Notice of Indenture Defaults...............................................................17 Section 5.04 Certain Rights of Trustee..................................................................17 Section 5.05 Not Responsible for Recitals or Issuance of Equipment Notes................................18 Section 5.06 May Hold Equipment Notes...................................................................19 Section 5.07 Indenture Supplements......................................................................19 Section 5.08 Effect of Replacements.....................................................................19 Section 5.09 Withholding Taxes..........................................................................19 Section 5.10 No Representations or Warranties as to the Items of Equipment or Documents.................19 Section 5.11 No Segregation of Moneys; No Interest; Investments.........................................19 Section 5.12 No Compensation from Holders or Indenture Estate...........................................20 Section 5.13 Limitation on Duty of Trustee in Respect of Indenture Estate...............................20 Section 5.14 No Liability of Trustee....................................................................20 ARTICLE VI INDEMNIFICATION AND COMPENSATION OF TRUSTEE Section 6.01 Scope of Indemnification...................................................................21 Section 6.02 Compensation...............................................................................21 ARTICLE VII SUCCESSOR TRUSTEES Section 7.01 Resignation of Trustee; Appointment of Successor...........................................22 Section 7.02 Appointment of Co-Trustee..................................................................23 Section 7.03 No Liability for Clean-up of Hazardous Materials...........................................24 ARTICLE VIII SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS Section 8.01 Supplemental Indentures....................................................................24
ii Section 8.02 Trustee Protected..........................................................................26 Section 8.03 Request of Substance, Not Form.............................................................26 Section 8.04 Documents Mailed to Holders................................................................26 Section 8.05 Notation on or Exchange of Equipment Notes.................................................26 ARTICLE IX COVENANTS OF THE COMPANY Section 9.01 Payment of Equipment Notes.................................................................27 Section 9.02 Maintenance of Corporate Existence.........................................................27 Section 9.03 Consolidation, Merger or Sale of Assets of the Company.....................................27 Section 9.04 Annual Statements as to Compliance by the Company..........................................28 Section 9.05 Notices of Indenture Defaults..............................................................28 Section 9.06 Liens......................................................................................28 Section 9.07 Maintenance; Compliance with Laws; Possession; Identification Marks........................28 Section 9.08 Replacement of Parts.......................................................................29 Section 9.09 Insurance..................................................................................29 Section 9.10 Age of Equipment...........................................................................30 Section 9.11 Replacement of Items of Equipment upon Event of Loss.......................................30 Section 9.12 Scope of Business Activities Abroad........................................................31 Section 9.13 Filings and Opinions.......................................................................31 Section 9.14 Substitution and Replacement of Equipment..................................................32 ARTICLE X GUARANTEE Section 10.01 Guarantee..................................................................................33 Section 10.02 Consolidation, Merger or Sale of Assets of Guarantor.......................................34 ARTICLE XI MISCELLANEOUS Section 11.01 Release of Property........................................................................35 Section 11.02 Defeasance and Covenant Defeasance.........................................................35 Section 11.03 No Legal Title to Indenture Estate in Holders..............................................38 Section 11.04 Sale of Items of Equipment by Trustee Is Binding...........................................38 Section 11.05 Indenture and Equipment Notes for Benefit of the Company, Guarantor, Trustee and Holders Only..................................................................................38 Section 11.06 Further Assurances.........................................................................38 Section 11.07 Compliance Certificates and Opinions.......................................................39 Section 11.08 Form of Documents Delivered to Trustee.....................................................39 Section 11.09 Acts of Holders............................................................................39 Section 11.10 Notices....................................................................................40 Section 11.11 Severability...............................................................................40
iii Section 11.12 Separate Counterparts......................................................................40 Section 11.13 Successors and Assigns.....................................................................41 Section 11.14 Headings...................................................................................41 Section 11.15 Governing Law..............................................................................41 Section 11.16 No Partnership.............................................................................41
EXHIBIT A - Form of Trust Indenture Supplements EXHIBIT B - Form of Equipment Notes EXHIBIT C - Form of Notice to Lessees EXHIBIT D - Form of Memorandum of Trust EXHIBIT E - Form of Memorandum of Lease APPENDIX A - Definitions iv [A] TRUST INDENTURE AND SECURITY AGREEMENT This [A] TRUST INDENTURE AND SECURITY AGREEMENT, dated as of February 15, 2002 (this "Indenture"), by and among Trinity Industries Leasing Company, a Delaware corporation (the "Company"), Trinity Industries, Inc. a Delaware corporation (the "Guarantor"), and The Bank of New York, a New York banking corporation, as Trustee hereunder, and any successor appointed in accordance with the terms hereof (the "Trustee"); WITNESSETH: WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of the 7.755% Equipment Notes (the "Equipment Notes") issuable as provided in this Indenture; WHEREAS, the Company and the Guarantor desire by this Indenture, among other things, to provide for (i) the issuance by the Company of the Equipment Notes, (ii) the guarantee by the Guarantor of the Company's obligations in respect of the Equipment Notes and under this Indenture, and (iii) the assignment, mortgage and pledge by the Company to the Trustee, as part of the Indenture Estate hereunder, among other things, of, and the grant of a security interest in, all of the Company's right, title and interest in and to the Items of Equipment, the Leases and the proceeds thereof, in accordance with the terms hereof, in trust, as security for, among other things, the Company's obligations to the holders of the Equipment Notes for the equal and ratable benefit of such holders; WHEREAS, all things have been done to make the Equipment Notes, when executed by the Company and authenticated and delivered by the Trustee hereunder, the valid, binding and enforceable obligations of the Company; and WHEREAS, all things necessary to make this Indenture the legal, valid and binding obligation of the Company, the Guarantor and the Trustee, for the uses and purposes herein set forth, in accordance with its terms, have been done and performed and have happened. GRANTING CLAUSE NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT WITNESSETH that, to secure the prompt payment of the principal of and interest and premium, if any, on and all other amounts due with respect to, the Equipment Notes from time to time outstanding hereunder and the performance and observance by the Company of all the agreements, covenants and provisions herein and in the Equipment Notes all for the benefit of the holders of the Equipment Notes, and for the uses and purposes and subject to the terms and provisions hereof, and in consideration of the premises and of the covenants herein contained, the Company does hereby sell, assign, transfer, convey, mortgage, pledge and confirm unto the Trustee, its successors and assigns, for the security and benefit of the holders of the Equipment Notes from time to time, a first priority security interest in and mortgage lien on all right, title and interest of the Company in and to the following described property, rights, interests and privileges (which collectively, including all property hereafter specifically subjected to the Lien of this Indenture by any instrument supplemental hereto, being herein called the "Indenture Estate"), to wit: (i) the Items of Equipment including, without limitation, all additions, alterations or modifications thereto or replacements of any part thereof, whenever made or performed or acquired and all other items of tangible personal property of any kind acquired by the Company in connection with the acquisition of the Items of Equipment, in each case whether acquired at the time of acquisition of the Items of Equipment or thereafter acquired pursuant to this Indenture or otherwise; and (ii) all Leases, including, without limitation, all amounts of rent, insurance proceeds and other payments of any kind for or with respect to the Equipment subject to each Lease; (iii) all monies and securities now or hereafter paid or deposited or required to be paid or deposited with the Trustee pursuant to any provision of this Indenture, or any Lease or required to be held by the Trustee hereunder or thereunder; and (iv) all right, title and interest of the Company in and to all proceeds, rents, issues, profits, products, revenues and other income, from and on account of the property, rights and privileges subjected or required to be subjected to the Lien of this Indenture. TO HAVE AND TO HOLD all and singular the aforesaid property unto the Trustee, its successors and assigns, in trust for the benefit and security of the holders of the Equipment Notes from time to time, without any priority of any one Equipment Note over any other Equipment Note, and for the uses and purposes, and subject to the terms and provisions, set forth in this Indenture. UPON CONDITION that, unless and until an Event of Default shall have occurred and be continuing, the Company shall be permitted, to the exclusion of the Trustee, to possess and use the Indenture Estate and exercise all rights with respect thereto. It is expressly agreed that anything herein contained to the contrary notwithstanding, the Company shall remain liable under each of the Operative Documents and Leases to which it is a party to perform all of the obligations, if any, assumed by it thereunder, all in accordance with and pursuant to the terms and provisions thereof, and the Trustee and the holders shall have no obligation or liability under any of the Operative Documents or Leases to which the Company is a party by reason of or arising out of this assignment, nor shall the Trustee or the holders of Equipment Notes be required or obligated in any manner to perform or fulfill any obligations of the Company under or pursuant to any of the Operative Documents or Leases to which the Company is a party or, except as herein expressly provided, to make any payment, or to make any inquiry as to the nature or sufficiency of any payment received by it, or present or file any claim, or take any action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times. The Company does hereby constitute the Trustee the true and lawful attorney of the Company, irrevocably, with full power (in the name of the Company or otherwise) to ask, require, demand, receive, compound and give acquittance for any and all money and claims for 2 money due and to become due to the Company which are part of the Indenture Estate, to endorse any checks or other instruments or orders in connection therewith and to file any notices or claims or take any action or institute any proceedings which the Trustee may deem to be necessary or advisable in the premises. The Company agrees that at any time and from time to time, the Company will promptly and duly execute, deliver and file or cause to be executed, delivered and filed any and all such further instruments and documents as may be necessary or as the Trustee may reasonably request in order to obtain the full benefits of this assignment and of the rights and powers herein granted. The Company does hereby warrant and represent that it has not assigned or pledged, and hereby covenants that it will not assign or pledge, so long as the assignment hereunder shall remain in effect, any of its right, title or interest hereby assigned to anyone other than the Trustee and that it will not, except as provided in or permitted by this Indenture, accept any payment constituting part of the Indenture Estate or enter into an agreement amending or supplementing any of the Operative Documents, execute any waiver or modification of, or consent under the terms of any of the Operative Documents, settle or compromise any claim arising under any of the Operative Documents, or submit or consent to the submission of any dispute, difference or other matter arising under or in respect of any of the Operative Documents to arbitration thereunder. IT IS HEREBY COVENANTED AND AGREED by and among the parties hereto as follows: ARTICLE I DEFINITIONS Section 1.01 Certain Definitions. Unless the context otherwise requires, all capitalized terms used herein and not otherwise defined shall have the meanings set forth in Appendix A hereto for all purposes of this Indenture. All references to articles, sections, clauses, schedules, exhibits, annexes and appendices in this Indenture are to articles, sections, clauses, schedules, exhibits, annexes and appendices in and to this Indenture unless otherwise indicated. ARTICLE II THE EQUIPMENT NOTES Section 2.01 Form of Equipment Notes. (a) The Equipment Notes and the Trustee's certificate of authentication with respect thereto shall be substantially in the form annexed hereto as Exhibit B. The Equipment Notes may have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have letters, notations, legends or endorsements required by law, stock exchange agreements to which the Company is subject, or usage. Any portion of the text of any Equipment Note may be set forth on the reverse thereof, with an appropriate reference thereto on 3 the face of the Equipment Note. The Company shall approve the form of the Equipment Notes and any notation, legend or endorsement on the Equipment Notes. Each Equipment Note shall be dated the date of its authentication. The terms and provisions contained in the form of the Equipment Notes annexed hereto as Exhibit B shall constitute, and are hereby expressly made, a part of this Indenture. Each of the Company and the Trustee, by its execution and delivery of this Indenture, expressly agrees to the terms and provisions of the Equipment Notes applicable to it and to be bound thereby. The Equipment Notes shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner determined by the officers executing such Equipment Notes, as evidenced by their execution of such Equipment Notes. Section 2.02 Execution, Authentication and Denominations. The Equipment Notes shall be executed by an Officer of the Company authorized to execute Equipment Notes, by facsimile or manual signature, in the name and on behalf of the Company. If an officer whose signature is on an Equipment Note no longer holds that office at the time the Trustee authenticates the Equipment Note, the Equipment Note shall be valid nevertheless. An Equipment Note shall not be valid until the Trustee manually signs the certificate of authentication on the Equipment Note. The signature shall be conclusive evidence that the Equipment Note has been authenticated under this Indenture. At any time and from time to time after the execution of this Indenture, the Trustee shall, upon receipt of a Company Order, authenticate for original issue Equipment Notes in the aggregate principal amount specified in such Company Order. Such Company Order shall specify the amount of Equipment Notes to be authenticated and the date on which the issue of Equipment Notes is to be authenticated. Section 2.03 Registrar and Paying Agent. The Company shall maintain an office or agency where Equipment Notes may be presented for registration of transfer or for exchange (the "Registrar"), an office or agency where Equipment Notes may be presented for payment (the "Paying Agent"), and an office or agency where notices and demands to or upon the Company in respect of the Equipment Notes and this Indenture may be served. The Company shall cause the Registrar to keep a register of the Equipment Notes and of their transfer and exchange (the "Equipment Note Register"). The Company may have one or more additional Paying Agents. The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall give prompt written notice to the Trustee of the name and address of any such Agent and any change in the address of such Agent. If the Company fails to maintain a Registrar, Paying Agent and/or agent for service of notices and demands, the Trustee shall act as such Registrar, Paying Agent and/or agent for service of notices and demands 4 for so long as such failure shall continue. The Company may remove any Agent upon written notice to such Agent and the Trustee; provided that no such removal shall become effective until (i) the acceptance of an appointment by a successor Agent to such Agent as evidenced by an appropriate agency agreement entered into by the Company and such successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i) of this proviso. The Company or any Affiliate of the Company may act as Paying Agent, Registrar, and/or agent for service of notice and demands. The Company shall initially act as the Paying Agent. The Company initially appoints the Trustee as Registrar, Paying Agent and authenticating agent. If, at any time, the Trustee is not the Registrar, the Registrar shall make available to the Trustee on or before each Interest Payment Date and at such other times as the Trustee may reasonably request, the names and addresses of the Holders as they appear in the Equipment Note Register. Section 2.04 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent, if any, other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, or interest on the Equipment Notes (whether such money has been paid to it by the Company or the Guarantor on the Equipment Notes), and that such Paying Agent shall promptly notify the Trustee of any default by the Company (or the Guarantor on the Equipment Notes) in making any such payment. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the Trustee. If the Company or any Subsidiary of the Company or any Affiliate of any of them acts as Paying Agent, it will, on or before each due date of any principal of, premium, if any, or interest on the Equipment Notes, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such principal, premium, if any, or interest so becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and will promptly notify the Trustee of its action or failure to act as required by this Section 2.04. Section 2.05 Transfer and Exchange. The Equipment Notes are issuable only in registered form. A Holder may transfer an Equipment Note by written application to the Registrar stating the name of the proposed transferee and otherwise complying with the terms of this Indenture. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon registration of the transfer by the Registrar in the Equipment Note Register. Prior to the registration of any transfer by a Holder as provided herein, the Company, the Trustee, and any agent of the Company or the Trustee shall treat the Person in whose name the Equipment Note is registered as the owner thereof for all purposes and none of the Company, the Trustee, or any such agent shall be affected by notice to the contrary. When Equipment Notes are presented to the Registrar with a request to register the transfer or to exchange them for an equal principal amount of Equipment Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges in accordance with 5 the terms, conditions and restrictions hereof, the Company shall execute and the Trustee shall authenticate Equipment Notes. No service charge shall be made to any Holder for any registration of transfer or exchange or redemption of the Equipment Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or other similar governmental charge payable upon transfers or exchanges pursuant to Section 2.12 or 8.05). Section 2.06 Replacement Equipment Notes. If (i) a mutilated Equipment Note is surrendered to the Trustee or the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Equipment Note, and (ii) there is delivered to the Company and the Trustee such security or indemnity as may be required by them to hold each of them harmless, then, in the absence of notice to the Company, the Registrar or the Trustee that such Equipment Note has been acquired by a protected purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Equipment Note, a replacement Equipment Note of like tenor and amount; provided, however, that if any such mutilated, destroyed, lost or stolen Equipment Note has become or is about to become due and payable, the Company, in its discretion, may pay such Equipment Note instead of issuing a new Equipment Note in replacement thereof. Upon the issuance of any replacement Equipment Note under this Section, the Company may require the payment by the Holder of such Equipment Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee) connected therewith. Every replacement Equipment Note issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Equipment Note shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Equipment Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Equipment Notes duly issued hereunder. Section 2.07 Outstanding Equipment Notes. Equipment Notes outstanding at any time are all Equipment Notes that have been authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation and those described in this Section 2.07 as not outstanding. If an Equipment Note is replaced pursuant to Section 2.06, it ceases to be outstanding unless and until the Trustee and the Company receive proof reasonably satisfactory to them that the replaced Equipment Note is held by a protected purchaser. An Equipment Note does not cease to be outstanding because the Company or one of its Affiliates holds such Equipment Note; provided, however, that, in determining whether the Holders of the requisite principal amount of the outstanding Equipment Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Equipment Notes owned by the Company or any other obligor upon the Equipment Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, 6 demand, authorization, direction, notice, consent or waiver, only Equipment Notes which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Equipment Notes so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Equipment Notes and that the pledgee is not the Company or any other obligor upon the Equipment Notes or any Affiliate of the Company or of such other obligor. Section 2.08 Cancellation. The Company at any time may deliver to the Trustee for cancellation any Equipment Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever. The Registrar and the Paying Agent shall forward to the Trustee any Equipment Notes surrendered to them for registration of transfer, exchange, purchase or payment. The Trustee shall cancel all Equipment Notes surrendered for registration of transfer, exchange, purchase, payment or cancellation and shall return all such Equipment Notes to the Company. The Company shall not issue Equipment Notes to replace Equipment Notes it has paid in full or delivered to the Trustee for cancellation. Section 2.09 Application of Payments to Principal Amount and Interest. In the case of each Equipment Note, each payment of principal thereof and premium, if any, and interest thereon shall be applied, first, to the payment of accrued but unpaid interest on such Equipment Note then due thereunder (as well as any interest on any overdue principal amount) and (to the extent permitted by law) any overdue premium, if any, any overdue interest and any other overdue amounts thereunder to the date of such payment, second, to the payment of any premium then due thereon, and third, to the payment of the principal amount of such Equipment Note then due thereunder (which, in the case of any partial redemption pursuant to Section 2.12, shall be applied toward the pro rata reduction of all remaining installments of principal on such Equipment Note). Section 2.10 Termination of Interest in Indenture Estate. A Holder shall have no further interest in, or other right with respect to, the Indenture Estate when and if the principal amount of and interest on all Equipment Notes held by such Holder and all other sums payable to such Holder hereunder and under such Equipment Notes shall have been paid in full. Section 2.11 Equally and Ratably Secured. All Equipment Notes at any time outstanding under this Indenture shall be equally and ratably secured hereby without preference, priority or distinction on account of the date or dates, the actual time or times of the issue or maturity of such Equipment Notes so that all Equipment Notes at any time issued and outstanding hereunder shall have the same rights and preferences, and be entitled to the same benefits provided by the Liens created, under and by virtue of this Indenture. Section 2.12 Redemption; Notice of Redemption. (a) The Company may, at its option, on not less than 30 (and no more than 60) days' notice to the Trustee, redeem on any date the outstanding Equipment Notes in whole or in part, at a redemption price equal to the greater of (1) 100% of the principal amount of the Equipment Notes to be redeemed, and (2) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest in respect of the Equipment Notes to be redeemed (not including any portion of those payments of interest accrued as of the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day 7 months) at the Adjusted Treasury Rate plus 25 basis points, plus, in each case, accrued interest to the date of redemption. "Adjusted Treasury Rate" means, with respect to any redemption date, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that redemption date. "Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Equipment Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of those Equipment Notes. "Comparable Treasury Price" means, with respect to any redemption date, (i) the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than three Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so received. "Quotation Agent" means the Reference Treasury Dealer appointed by the Company. "Reference Treasury Dealer" means (1) J.P. Morgan Securities Inc. and its successors, provided, however, that if the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Company shall substitute another Primary Treasury Dealer, and (2) any other Primary Treasury Dealer selected by the Company. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that redemption date. Upon the redemption of any Equipment Notes pursuant to this Section 2.12(a), the Trustee shall, in accordance with Section 11.01(a), release from the Lien of this Indenture the Items of Equipment specified by the Company in a Company Order having an aggregate Fair Value as determined by the Company equal to or less than the product obtained by multiplying the aggregate Fair Value of all Items of Equipment subject to the Lien of this Indenture by a fraction, the numerator of which shall be the aggregate unpaid principal amount of the Equipment Notes so redeemed and the denominator of which shall be the aggregate unpaid principal amount of all Equipment Notes outstanding immediately prior to such redemption. (b) In connection with an Event of Loss (unless the Company shall have elected the option set forth in Section 9.11(a)(i) with respect thereto), the Company shall, on or before the relevant Loss Redemption Date (as defined in Section 9.11(a)), redeem a principal amount of the Equipment Notes equal to the product obtained by multiplying the aggregate 8 unpaid principal amount of all Equipment Notes on the date notice of the Company's election to redeem is given to the Trustee pursuant to Section 9.11(a), by a fraction, the numerator of which shall be the Fair Value of the Equipment with respect to which such Event of Loss occurred and the denominator of which shall be the aggregate Fair Value of all Equipment subject to the Lien hereof immediately prior to the occurrence of such Event of Loss. The redemption price payable upon a redemption pursuant to this Section 2.12(b) shall equal the principal amount of the Equipment Notes to be redeemed as determined pursuant to the immediately preceding sentence, together with accrued and unpaid interest on such principal amount to the date of such redemption but without the payment of any premium. (c) The Trustee shall give prompt notice to the Noteholders of any redemption pursuant to this Section 2.12. (d) The Equipment Notes are not subject to redemption or prepayment except as provided in this Section 2.12 and in Section 3.03 of this Indenture. ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE INDENTURE ESTATE Section 3.01 Payments Prior to Indenture Event of Default. Except as otherwise provided in Section 3.03, any money paid over by the Company to the Trustee for payment on the Equipment Notes shall be distributed by the Trustee as promptly as possible to the holders of the Equipment Notes to pay in full the aggregate amount of the payment or payments of principal, premium, if any, and interest (as well as any interest on overdue principal) then due, such distribution to be made ratably, in the proportion that the amount of such payment or payments then due or so scheduled with respect to each such Equipment Note bears to the aggregate amount of payments then due under all such Equipment Notes. The amount so distributed to a Holder of an Equipment Note shall be applied by such Holder in payment of such Equipment Note in accordance with the terms of Section 2.09. Section 3.02 [Reserved]. Section 3.03 Payments After Indenture Event of Default. (a) All payments received and amounts realized by the Trustee after an Indenture Event of Default shall have occurred and be continuing and after the Equipment Notes shall have been accelerated pursuant to Section 4.02 or the Trustee has elected to foreclose or otherwise enforce its rights under this Indenture (including any amounts realized by the Trustee from the exercise of any remedies pursuant to Article IV), as well as all payments or amounts then held or thereafter received by the Trustee as part of the Indenture Estate while such Indenture Event of Default shall be continuing, shall be distributed forthwith by the Trustee in the following order of priority: first, so much of such payments or amounts as shall be required to pay or reimburse the Trustee for any unpaid fees for its services under this Indenture and any tax, liability, expense (including reasonable attorneys' fees) or other loss incurred by the Trustee (to the extent reimbursable and not previously reimbursed and to the extent reasonably incurred in connection with its duties as 9 Trustee) shall be distributed to the Trustee; second, so much of such payments or amounts as shall be required to reimburse the Holders of the Equipment Notes for payments made by them to the Trustee pursuant to Article V (to the extent not previously reimbursed), shall be distributed to such Holders of the Equipment Notes, without priority of one over the other, in accordance with the amount of the payment or payments made by, or payable to, each such Holder; third, so much of such payments or amounts as shall be required to pay in full the aggregate unpaid principal amount of all Equipment Notes, plus the accrued but unpaid interest thereon to the date of distribution, shall be distributed to the Holders of the Equipment Notes, and in case the aggregate amount so to be distributed shall be insufficient to pay in full the aforesaid amounts, then, ratably, without priority of one over another, in the proportion that the aggregate unpaid principal amount of all Equipment Notes held by each such Holder, plus the accrued but unpaid interest thereon to the date of distribution, bears to the aggregate unpaid principal amount of all Equipment Notes, plus the accrued but unpaid interest thereon to the date of distribution; and fourth, the balance, if any, of such payments or amounts remaining thereafter shall be distributed to, or as directed by, the Company; (b) If an Indenture Event of Default shall have occurred and be continuing, the Trustee shall not make any distribution to the Company but shall hold amounts otherwise distributable to the Company as collateral security for the obligations secured hereby until such time as no Indenture Event of Default shall be continuing hereunder or such amounts are applied pursuant to Section 3.03(a). Section 3.04 Other Payments. Except as otherwise provided in Section 3.03, (a) any payments received by the Trustee for which no provision as to the application thereof is made elsewhere in this Article III, and (b) all payments received and amounts realized by the Trustee with respect to the Items of Equipment to the extent received or realized at any time after payment in full of the principal of and interest and premium, if any, on all Equipment Notes, as well as any other amounts remaining as part of the Indenture Estate after payment in full of the principal of and interest and premium, if any, on all Equipment Notes issued hereunder, shall be distributed forthwith by the Trustee in the order of priority set forth in Section 3.03, except that in the case of any payment described in clause (b) above, such payment shall be distributed omitting clause "third" of such Section 3.03(a). ARTICLE IV REMEDIES OF THE TRUSTEE UPON AN INDENTURE EVENT OF DEFAULT Section 4.01 Indenture Events of Default. The following events shall constitute "Indenture Events of Default" and each such Indenture Event of Default shall be deemed to exist and continue so long as, but only so long as, it shall not have been remedied: 10 (a) default by the Company in making any payment when due of any principal of or premium (if any) on, any Equipment Note; (b) default by the Company in making any payment when due of any interest on any Equipment Note, and the continuance of such default unremedied for 10 Business Days after the same shall have become due and payable; (c) any failure by the Company or the Guarantor to observe or perform in any material respect any covenant or obligation of it, in this Indenture or the Equipment Notes if, but only if, such failure is not remedied within a period of 120 days after there has been given to the Company or the Guarantor, as the case may be, by the Trustee or the Holders of 25% or more in aggregate principal amount of the Equipment Notes then outstanding a written notice specifying such failure and requiring it to be remedied; (d) any representation or warranty made by the Company hereunder, or by any representative of the Company in any document or certificate furnished to the Trustee in connection herewith or pursuant hereto, shall prove at any time to have been incorrect in any material adverse respect as of the date made and such incorrectness shall remain material and unremedied for a period of 120 days after the date on which there has been given to the Company by the Trustee or the Holders of 25% or more in aggregate principal amount of the Equipment Notes then outstanding a written notice specifying such incorrectness; (e) the Guarantee shall cease to be in full force and effect or the Guarantor shall take any action to seek to have the Guarantee declared void or unenforceable; (f) either the Company or the Guarantor shall (i) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate action to authorize any of the foregoing; or (g) an involuntary case or other proceeding shall be commenced against either the Company or the Guarantor seeking liquidation, reorganization or other relief with respect to it or its respective debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 90 days. Section 4.02 Acceleration; Rescission and Annulment. If an Indenture Event of Default (other than as described in Section 4.01(f) or (g)) shall occur and be continuing, the Trustee may, and when instructed by the Holders of at least 25% in aggregate principal amount 11 of the Equipment Notes then outstanding, shall, by written notice to the Company, declare the unpaid principal amount of all Equipment Notes then outstanding to be immediately due and payable, together with all accrued and unpaid interest thereon and all other amounts due thereunder. If an Indenture Event of Default described in Section 4.01(f) or (g) shall have occurred and be continuing, the unpaid principal amount of all Equipment Notes then outstanding, together with all accrued and unpaid interest thereon and all other amounts due thereunder, shall immediately become due and payable, without any notice or action by the Trustee or any Noteholder, to the fullest extent permitted by law. At any time after acceleration and prior to the sale of any of the Indenture Estate pursuant to this Article IV, a Majority in Interest, by written notice to the Company and the Trustee, may rescind and annul such acceleration and thereby annul its consequences if: (i) there has been paid to or deposited with the Trustee an amount sufficient to pay all overdue installments of interest on the Equipment Notes, and the principal of and premium, if any, on any Equipment Notes that have become due otherwise than by such acceleration, (ii) the rescission would not conflict with any judgment or decree, and (iii) all other Indenture Defaults and Indenture Events of Default, other than nonpayment of principal or interest on the Equipment Notes that have become due solely because of such acceleration, have been cured or waived. Section 4.03 Remedies with Respect to Indenture Estate. (a) If an Indenture Event of Default shall have occurred and be continuing, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02, then and in every such case the Trustee shall be entitled to exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to this Article IV and may recover judgment in its own name as Trustee against the Company and Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the Company and all persons claiming under the Company wholly or partly therefrom. (b) The Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given written notice of such sale to the Company at least 30 days prior to the date of such sale or the date on which the Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Trustee or the Holder or Holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the Holders may exercise such right without including the Holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of effecting any sale, assignment, transfer or delivery for enforcement of the Lien of this 12 Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Trustee may consider necessary or appropriate, with full power of substitution, the Company hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Trustee or any purchaser, the Company shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) The Company agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Trustee may take possession of all or any part of the Indenture Estate and, subject to the rights of the lessees under the Leases, may exclude the Company and all persons claiming under any of them wholly or partly therefrom. At the request of the Trustee, the Company shall promptly execute and deliver to the Trustee such instruments of title and other documents as the Trustee may deem necessary or advisable to enable the Trustee or an agent or representative designated by the Trustee, at such time or times and place or places as the Trustee may specify, to obtain possession, subject to the rights of the lessees under the Leases, of all or any part of the Indenture Estate. If the Company shall fail for any reason to execute and deliver such instruments and documents to the Trustee, the Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the Company wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and take possession of and remove the Indenture Estate, subject to the rights of the lessees under the Leases. Upon every such taking of possession, the Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem proper or as it may otherwise be directed to do so by a Majority in Interest. In each such case, and subject to the rights of the lessees under the Leases, the Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the Company relating to the Indenture Estate, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part thereof; and the Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the Company), and all other payments which the Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Trustee, and of all persons properly engaged and employed by the Trustee, including the reasonable expenses of the Trustee. Any action by the Trustee pursuant to this Section 4.03(c) 13 will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Trustee shall have obtained possession of an Item of Equipment, the Trustee shall not be obligated to cause any Person to use or operate such Item of Equipment or cause such Item of Equipment to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such Item of Equipment by any other Person unless (i) the Trustee, as directed by a Majority in Interest, shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to a Majority in Interest to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all liability for loss or damage to such Item of Equipment and for public liability and property damage resulting from use or operation of such Item of Equipment and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Trustee in its discretion to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all such liabilities. (e) If an Indenture Event of Default shall occur and be continuing, the Trustee may proceed to protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of any covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the Indenture Estate or any part thereof, or for the recovery of a judgment for the indebtedness secured hereby, or the enforcement of any other legal or equitable remedy available to a mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice. Section 4.04 Waiver of Existing Defaults. A Majority in Interest by notice to the Trustee on behalf of all Holders of the Equipment Notes may waive any past default hereunder and its consequences, except that the consent of each Holder of an Equipment Note affected thereby shall be required to waive a default (i) in the payment of the principal of, premium, if any, or interest on any Equipment Note or (ii) in respect of a covenant or provision hereof which under Article VIII hereof cannot be modified or amended without the consent of the Holder of each Equipment Note affected. Upon any such waiver, such default shall cease to exist, and any Indenture Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 4.05 Control by Majority. A Majority in Interest may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or 14 exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of the Equipment Notes not joining in the giving of such direction, and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of the Equipment Notes. Section 4.06 Limitation on Suits. A Holder may not pursue any remedy with respect to this Indenture or the Equipment Notes unless: (i) the Holder gives the Trustee written notice of a continuing Indenture Event of Default; (ii) the Holders of at least 25% in aggregate principal amount of outstanding Equipment Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, a Majority in Interest does not give the Trustee a direction that is inconsistent with the request. A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder. Section 4.07 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of an Equipment Note to receive payment of principal of, premium, if any, or interest on such Holder's Equipment Note on or after the respective due dates expressed on such Equipment Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. Section 4.08 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Indenture Event of Default shall impair any such right or remedy or constitute a waiver of any such Indenture Event of Default or an acquiescence therein. Every right and remedy given under this Indenture or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. Section 4.09 Remedies Cumulative. Each and every right, power and remedy herein specifically given to the Trustee or otherwise in this Indenture shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Trustee, and the exercise or the 15 beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the time or thereafter any other right, power or remedy. No delay or omission by the Trustee in the exercise of any right, remedy or power or in the pursuance of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Company or to be an acquiescence therein. Section 4.10 Discontinuance of Proceedings. In case the Trustee shall have proceeded to enforce any right, power or remedy under this Indenture by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in every such case the Company and, the Trustee shall be restored to their former positions and rights hereunder with respect to the Indenture Estate, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been undertaken (but otherwise without prejudice). Section 4.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorney's fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant, provided that the provisions of this Section shall not apply to any suit instituted by any Holder of an Equipment Note. ARTICLE V THE TRUSTEE Section 5.01 Acceptance of Trusts and Duties. The Trustee accepts the trusts hereby created and applicable to it and agrees to perform the same but only upon the terms of this Indenture and agrees to receive and disburse all money received by it constituting part of the Indenture Estate in accordance with the terms hereof. Section 5.02 Certain Duties and Responsibilities. (a) Except during the continuance of an Indenture Event of Default: (i) the Trustee undertakes to perform such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). 16 (b) In case an Indenture Event of Default shall occur and be continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action (or negligent action in the handling of funds), its own grossly negligent failure to act (or negligent failure to action in the handling of funds), or its own willful misconduct, except that: (i) this subsection shall not be construed to limit the effect of subsection (a) of this Section; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of a Majority in Interest relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and (iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. (d) Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 5.03 Notice of Indenture Defaults. If the Trustee shall have knowledge of any Indenture Default or Indenture Event of Default hereunder, the Trustee shall promptly give notice thereof to the Company in accordance with Section 11.10 and to all Holders, as their names and addresses appear in the Equipment Note Register, unless such Indenture Default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Equipment Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders. Section 5.04 Certain Rights of Trustee. Except as otherwise provided in Section 5.02: (a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper 17 or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer's Certificate of the Company; (c) the Trustee may consult with counsel of its choice and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the cost, expenses and liabilities which might be incurred by it in compliance with such request or direction; (e) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document; (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (g) the Trustee shall not be deemed to have notice of any Indenture Default or Indenture Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any such event is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Equipment Notes and this Indenture; and (h) the Trustee may request that the Company deliver an Officer's Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer's Certificate may be signed by any person authorized to sign an Officer's Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. Section 5.05 Not Responsible for Recitals or Issuance of Equipment Notes. The recitals contained herein and in the Equipment Notes, except the certificates of authentication, shall not be taken as the statements of the Trustee, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or the Equipment Notes, except that the Trustee hereby represents and warrants that this Indenture has been executed and delivered by one of its officers who is duly authorized to execute and deliver such document on its behalf. 18 Section 5.06 May Hold Equipment Notes. The Trustee may become the owner or pledgee of Equipment Notes and may otherwise deal with the Company with the same rights it would have if it were not Trustee. Section 5.07 Indenture Supplements. In the event there is delivered to the Trustee for execution an Indenture Supplement or a Memorandum of Trust, as contemplated by Section 9.11, 9.13 or 9.14, the Trustee agrees, subject to Section 8.02, for the benefit of the holders of the Equipment Notes and the Company, to execute and deliver such Indenture Supplement or Memorandum of Trust, as the case may be. Section 5.08 Effect of Replacements. In the event of the substitution of a Replacement Item of Equipment, all provisions of this Indenture relating to the Item of Equipment or Items of Equipment being replaced shall be applicable to such Replacement Item of Equipment with the same force and effect as if such Replacement Item of Equipment was the same Item of Equipment being replaced. Section 5.09 Withholding Taxes. The Trustee, as agent for the Company, shall exclude and withhold from each payment of principal, premium, if any, and interest and other amounts due hereunder or under the Equipment Notes any and all withholding taxes applicable thereto as required by law. The Trustee agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld by it with respect to any amounts payable in respect of the Equipment Notes, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the holders of the Equipment Notes, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each holder of an Equipment Note appropriate documentation showing the payment thereof, together with such additional documentary evidence as such holders may reasonably request from time to time. Section 5.10 No Representations or Warranties as to the Items of Equipment or Documents. THE TRUSTEE NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE (i) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE ITEMS OF EQUIPMENT OR AS TO THE TITLE THERETO, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE ITEMS OF EQUIPMENT WHATSOEVER, or (ii) any representation or warranty as to the validity, legality or enforceability of this Indenture, the Equipment Notes, or any Indenture Supplement or any other document or instrument or as to the correctness of any statement contained in any thereof (except as to the representations and warranties made by the Trustee herein). Section 5.11 No Segregation of Moneys; No Interest; Investments. (a) Subject to Section 5.12(b), no money received by the Trustee hereunder need be segregated in any manner except to the extent required by law, and any such money may be deposited under such general conditions for the holding of trust funds as may be prescribed by law applicable to the Trustee, and, except as otherwise agreed by the Trustee, the Trustee shall not be liable for any interest thereon. 19 (b) Any amounts held by the Trustee pursuant to the express terms of this Indenture and not required to be distributed as herein provided shall be invested and reinvested by the Trustee from time to time in Specified Investments at the written direction and at the risk and expense of the Company, except that in the absence of any such direction or after an Indenture Event of Default shall have occurred and be continuing, such amounts shall be so invested by the Trustee in Specified Investments of the type specified in clause (f) of the definition thereof, except as provided below, and the Trustee shall hold any such Specified Investments until maturity. Any net income or gain realized as a result of any such investments shall be held as part of the Indenture Estate and shall be applied by the Trustee at the same times, on the same conditions and in the same manner as the amounts in respect of which such income or gain was realized are required to be distributed in accordance with the provisions hereof pursuant to which such amounts were required to be held and if no Indenture Event of Default shall have occurred and be continuing any excess shall be paid to the Company upon its request. Any such Specified Investments may be sold or otherwise reduced to cash (without regard to maturity date) by the Trustee whenever necessary to make any application as required by such provision. The Trustee shall have no liability for any loss resulting from any such investment other than by reason of the willful misconduct or negligence of the Trustee. Section 5.12 No Compensation from Holders or Indenture Estate. The Trustee agrees that it shall have no right against the Holders of the Equipment Notes or, except as provided in Sections 3.03 and 4.03, the Indenture Estate, for any fee as compensation for its services hereunder. Section 5.13 Limitation on Duty of Trustee in Respect of Indenture Estate. (a) Except as otherwise provided in this Indenture, the Trustee shall have no duty as to any Indenture Estate in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Indenture Estate. (b) The Trustee shall not be responsible for (i) the existence, genuineness or value of any of the Indenture Estate or for the validity, perfection, priority or enforceability of the Liens in any of the Indenture Estate, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (ii) for the validity or sufficiency of the Indenture Estate or any agreement or assignment contained therein, (iii) for the validity of the title of the Company to the Indenture Estate, (iv) for insuring the Indenture Estate or (v) for the payment of taxes, charges, assessments or Liens upon the Indenture Estate or otherwise as to the maintenance of the Indenture Estate. Section 5.14 No Liability of Trustee. Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable under or in connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the 20 Trustee has been advised of the possibility thereof and regardless of the form of action in which such damages are sought. ARTICLE VI INDEMNIFICATION AND COMPENSATION OF TRUSTEE Section 6.01 Scope of Indemnification. The Company hereby agrees, whether or not any of the transactions contemplated hereby shall be consummated, to assume liability for, and does hereby indemnify, protect, save and keep harmless the Trustee, in each of its capacities hereunder, including in its individual capacity, and its successors, assigns, agents and servants, from and against any and all liabilities (including strict tort liability), obligations, losses, damages, penalties, taxes (excluding any taxes, fees or other charges on, based on, or measured by, any fees or compensation received by the Trustee for services rendered in connection with the transactions contemplated hereby), claims, actions, suits, costs, expenses or disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Indenture Estate or the Trustee (whether or not also indemnified against by any other person under any other document) in any way relating to or arising out of this Indenture, any Indenture Supplement or the Equipment Notes, or the enforcement of any of the terms of any thereof, or in any way relating to or arising out of the manufacture, purchase, acceptance, nonacceptance, rejection, ownership, delivery, lease, sublease, registration, re-registration, possession, use, operation, condition, sale, return or other disposition of the Items of Equipment or any part thereof (including, without limitation, latent and other defects, whether or not discoverable, and any claim for patent, trademark or copyright infringement), or in any way relating to or arising out of the administration of the Indenture Estate or the action or inaction of the Company hereunder, or the Trustee hereunder except only in the case of willful misconduct, bad faith or gross negligence (or negligence in the handling of funds) of the Trustee in the performance of its duties hereunder or the breach of any of its representations and warranties set forth herein. Section 6.02 Compensation. The Company agrees (a) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, wilfull misconduct or bad faith. The Trustee shall have a lien prior to the Equipment Notes as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to 21 Sections 6.01 and 6.02, except with respect to funds held in trust for the benefit of the Holders of particular Equipment Notes. When the Trustee incurs expenses or renders services in connection with an Indenture Event of Default specified in Section 4.01(f) or Section 4.01(g), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law. The provisions of this Section 6.02 shall survive the termination of this Indenture. ARTICLE VII SUCCESSOR TRUSTEES Section 7.01 Resignation of Trustee; Appointment of Successor. (a) The resignation or removal of the Trustee and the appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 7.01. The Trustee or any successor thereto may resign at any time without cause by giving at least 30 days' prior written notice to the Company and the Holders of the Equipment Notes. A Majority in Interest may at any time remove the Trustee without cause upon 60 days prior written notice by an instrument in writing delivered to the Company and the Trustee. In addition, the Company may remove the Trustee if: (i) the Trustee fails to comply with Section 7.01(c), (ii) the Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or public officer takes charge of the Trustee or its property or (iv) the Trustee becomes incapable of acting as provided herein. In the case of the resignation or removal of the Trustee, the Company shall promptly appoint a successor Trustee, provided that a Majority in Interest may appoint, within one year after such resignation or removal, a successor Trustee which may be other than the successor Trustee appointed as provided above, and such successor Trustee appointed as provided above shall be superseded by the successor Trustee so appointed by a Majority in Interest. If a successor Trustee shall not have been appointed and accepted its appointment hereunder within 60 days after the Trustee gives notice of resignation as provided above, the retiring Trustee, the Company or a Majority in Interest may petition any court of competent jurisdiction for the appointment of a successor Trustee. Any successor Trustee so appointed by such court shall immediately and without further act be superseded by any successor Trustee appointed as provided in the proviso to the fifth sentence of this paragraph (a) within one year from the date of the appointment by such court. (b) Any successor Trustee, however appointed, shall execute and deliver to the Company and to the predecessor Trustee an instrument accepting such appointment, and thereupon such successor Trustee, without further act, shall become vested with all the estates, properties, rights, powers, duties and trusts of the predecessor Trustee hereunder in the trusts hereunder applicable to it with like effect as if originally named the Trustee herein; but nevertheless, upon the written request of such successor Trustee, such predecessor Trustee shall 22 execute and deliver an instrument transferring to such Trustee, upon the trusts herein expressed applicable to it, all the estates, properties, rights, powers and trusts of such predecessor Trustee, and such Trustee shall duly assign, transfer, deliver and pay over to such successor Trustee all money or other property then held by such predecessor Trustee hereunder. (c) The Trustee shall be a bank or trust company, organized under the laws of the United States of America or any state thereof, having a combined capital and surplus of at least $50,000,000 (or the obligations and liabilities of which are irrevocably and unconditionally guaranteed by an affiliated company having a combined capital and surplus of at least $50,000,000), if there be such an institution willing, able and legally qualified to perform the duties of the Trustee hereunder upon reasonable or customary terms. (d) Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation to which substantially all the corporate trust business of the Trustee may be transferred, shall, subject to the terms of paragraph (c) of this Section, be the Trustee under this Indenture without further act. Section 7.02 Appointment of Co-Trustee. It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as trustee in such jurisdiction. It is recognized that in case of litigation under this Indenture, and in particular in case of the enforcement thereof on default, or in the case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold title to the properties, in trust, as herein granted or take any action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an individual or institution as a separate or co-trustee, provided that unless an Indenture Event of Default shall have occurred and be continuing, any such appointment of a co-trustee shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. The following provisions of this Section are adopted to these ends. In the event that the Trustee appoints an additional individual or institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee to exercise such powers, rights and remedies, and only to the extent that the Trustee by the laws of any jurisdiction is incapable of exercising such powers, rights and remedies and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of them. Should any instrument in writing from the Company be required by the separate or co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Company; provided, that if an Indenture Event of Default shall have occurred and be continuing, if the Company does not execute any such instrument within fifteen (15) days after request 23 therefor, the Trustees shall be empowered as an attorney-in-fact for the Company to execute any such instrument in the Company's name and stead. In case any separate or co-trustee or a successor to either shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate or co-trustee. Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions: (i) all rights and powers, conferred or imposed upon the Trustee shall be conferred or imposed upon and may be exercised or performed by such separate trustee or co-trustee; and (ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture of this Section. Any separate trustee or co-trustee may at any time appoint the Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successors trustee. Section 7.03 No Liability for Clean-up of Hazardous Materials. In the event that the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Trustee's sole discretion may cause the Trustee to be considered an "owner or operator" under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Section 9601, et seq., or otherwise cause the Trustee to incur liability under CERCLA or any other federal, state or local law, the Trustee reserves the right to, instead of taking such action, either resign as Trustee or arrange for the transfer of the title or control of the asset to a court appointed receiver. ARTICLE VIII SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS Section 8.01 Supplemental Indentures. (a) Supplemental Indentures Without Consent of Holders. The Company, the Guarantor and the Trustee, at any time and from time to 24 time, without notice to or the consent of any Holders of any Equipment Notes, may enter into one or more indentures supplemental hereto for any of the following purposes: (i) to correct or amplify the description of any property at any time subject to the lien of this Indenture or better to assure, convey and confirm unto the Trustee any property subject or required to be subject to the lien of this Indenture or to subject to the lien of this Indenture any Item of Equipment or Lease in accordance with the provisions of Section 9.11, 9.13 or 9.14; provided, however, that Indenture Supplements entered into for the purpose of subjecting to the lien of this Indenture any Item of Equipment or Lease need only be executed by the Company; or (ii) to evidence (in accordance with Article VII) the succession of a successor Trustee hereunder; or (iii) to add to the covenants of the Company or the Guarantor, for the benefit of the holders of the Equipment Notes, or to surrender any right or power herein conferred upon the Company; or (iv) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising hereunder so long as any such action does not adversely affect the interests of the Holders of the Equipment Notes. (b) Supplemental Indentures with Consent of Majority in Interest. With the written consent of a Majority in Interest, the Company and the Guarantor may, and the Trustee, subject to Section 8.02 hereof, shall, at any time and from time to time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights and obligations of Holders of the Equipment Notes under this Indenture; provided, however, without the consent of each Holder of an Equipment Note affected thereby, no such Supplemental Indenture shall: (i) change the final maturity of the principal of any Equipment Note, or change the dates or amounts of payment of any installment of the principal of or premium, if any, or interest on any Equipment Note, or reduce the principal amount thereof or the premium, if any, or interest thereon, or change to a location outside the United States the place of payment where, or the coin or currency in which, any Equipment Note or the premium, if any, or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment of principal or premium, if any, or interest on or after the date such principal or premium, if any, or interest becomes due and payable; (ii) create any lien with respect to the Indenture Estate ranking prior to, or on a parity with, the security interest created by this Indenture except such as are permitted by this Indenture, or deprive any Holder of an Equipment Note of the benefit of the lien on the Indenture Estate created by this Indenture; 25 (iii) reduce the percentage in principal amount of the Equipment Notes, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture, or of certain defaults hereunder and their consequences provided for in this Indenture; (iv) modify any provisions of this Section 8.01(b), except to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Equipment Note affected thereby; or (v) release the Guarantor from any of its obligations under the Guarantee or this Indenture. Section 8.02 Trustee Protected. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article VIII or Article V is authorized or permitted by this Indenture. If in the opinion of the Trustee any document required to be executed pursuant to the terms of Section 8.01 adversely affects any right, duty, immunity or indemnity in favor of the Trustee under this Indenture, the Trustee may in its discretion decline to execute such document. Section 8.03 Request of Substance, Not Form. It shall not be necessary for the consent of the holders of Equipment Notes under Section 8.01(b) to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Section 8.04 Documents Mailed to Holders. Promptly after the execution by the Trustee of any document entered into pursuant to Section 8.01(b), the Trustee shall mail, by first-class mail, postage prepaid, a conformed copy thereof to each Holder of an Equipment Note at its address in the Equipment Note Register, but the failure of the Trustee to mail such conformed copies shall not impair or affect the validity of such document. Section 8.05 Notation on or Exchange of Equipment Notes. If an amendment, supplement or waiver changes the terms of an Equipment Note, the Trustee may require the Holder to deliver such Equipment Note to the Trustee. The Trustee may place an appropriate notation on the Equipment Note indicating the changed terms and return it to the Holder, and the Trustee may place an appropriate notation on any Equipment Note thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange for such changed Equipment Note shall issue and the Trustee shall authenticate a new Equipment Note that reflects the changed terms. 26 ARTICLE IX COVENANTS OF THE COMPANY Section 9.01 Payment of Equipment Notes. The Company will pay or cause to be paid the principal of, premium, if any, and interest on the Equipment Notes on the dates and in the manner provided in the Equipment Notes. Section 9.02 Maintenance of Corporate Existence. The Company shall at all times maintain its corporate existence, except as otherwise specifically permitted in Section 9.03, and shall do or cause to be done all things necessary to preserve and keep in full force and effect its rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Company determines that the preservation thereof is no longer desirable in the conduct of the business of the Company. Section 9.03 Consolidation, Merger or Sale of Assets of the Company. (a) The Company covenants that it will not merge into or consolidate with any other corporation or sell, convey or otherwise dispose of all or substantially all of its assets to any Person unless (i) either (A) the Company (or the Guarantor) shall be the continuing corporation or (B) the successor corporation (if other than the Company or the Guarantor) shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia, and such corporation shall expressly assume the due and punctual performance and observance of all of the covenants and conditions of this Indenture and each other Operative Document to which the Company is a party to be performed by the Company on the terms set forth herein or therein by supplemental agreements given by such successor corporation to the Trustee; (ii) such successor corporation shall make such filings and recordings as shall be necessary, desirable or otherwise required to evidence such reorganization, consolidation, merger, sale, conveyance or other disposition; (iii) immediately after giving effect to such transaction, no Indenture Default or Indenture Event of Default shall have occurred and be continuing solely as a result of such consolidation, merger, sale, conveyance or other disposition and the Company shall have delivered to the Trustee an Officer's Certificate to such effect; (iv) in the event that the Company is not the surviving corporation, the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that (x) such consolidation, merger, sale, conveyance or other disposition and the assumption agreement described in clause (i)(B) above comply with such clause (and in the case of such certificate, clause (iii) of this Section 9.03(a)), (y) the assumption agreement described in clause (i)(B) above is a legal, valid and binding obligation of such successor corporation, and enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium and other similar laws and equitable principles affecting the enforcement of creditors' rights generally, and (z) all conditions precedent herein provided for relating to such transactions have been complied with. (b) In case of any such merger, consolidation, sale, conveyance or other disposition and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if it had been named herein as the party of the first part. 27 Section 9.04 Annual Statements as to Compliance by the Company. The Company covenants and agrees to deliver to the Trustee on or before a date not more than 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officer's Certificate stating as to the officer signing such certificate, whether or not to the best of such officer's knowledge the Company is in compliance with all of the terms, provisions and conditions hereof, and, if the Company shall be in default, specifying all such defaults and the nature hereof, of which such officer may have knowledge. Section 9.05 Notices of Indenture Defaults. Promptly after becoming aware of the existence of the occurrence of an Indenture Default or an Indenture Event of Default, the Company shall give notice thereof to the Trustee. Section 9.06 Liens. The Company shall not, directly or indirectly, create, incur, assume, permit, or suffer to exist any Lien on or with respect to any Item of Equipment, title thereto or any interest therein or with respect to any Lease, any interest therein except (a) the rights of the Trustee as provided in this Indenture, (b) Liens for Taxes either not yet due and payable or being contested in good faith by appropriate proceedings, (c) materialmen's, mechanics', workmen's, repairmen's, employees' or other like Liens arising in the ordinary course of business for amounts of payment of which is either not yet delinquent or is being contested in good faith by appropriate proceedings, (d) Liens (other than Liens for Taxes) arising out of judgments or awards against the Company with respect to which an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves have been provided or other appropriate provisions have been made and with respect to which there shall have been secured a stay of execution pending such appeal or proceeding for review, (e) the interests of lessees (or permitted sublessees) under the Leases, and (f) salvage or similar rights of insurers under insurance policies maintained pursuant to Section 9.09 hereof. The Company will promptly, at its own expense, take such action as may be necessary by bonding or otherwise duly to discharge any such Lien not excepted above if the same shall arise at any time. Section 9.07 Maintenance; Compliance with Laws; Possession; Identification Marks. (a) Maintenance. The Company, at its own expense, shall maintain, service and keep each Item of Equipment (i) according to prudent industry practice in good working order and in good physical condition for railcars of a similar age and usage, normal wear and tear excepted, (ii) in accordance in all material respects with applicable manufacturer's warranties, and (iii) in the same manner as employed by the Company for similar items of equipment owned or leased by it. (b) Compliance with Laws, Etc. The Company agrees to (i) maintain and service each Item of Equipment in compliance with all Applicable Laws and (ii) make alterations and modifications to each Item of Equipment as are required by all Applicable Laws. (c) Possession. The Company may lease any Item of Equipment to any user incorporated in the United States of America (or any state thereof or the District of Columbia), Mexico or Canada for use upon railroad lines located in the United States of America, Mexico or Canada. No such lease or other relinquishment of possession of any Item of Equipment shall in any way discharge or diminish any of the Company's obligations to the Trustee hereunder or 28 under any other Operative Document for which obligations the Company shall be and remain primarily liable as a principal and not as a surety. (d) Identification Marks. With respect to each Item of Equipment subject to the Lien of this Indenture on the Closing Date, the Company has caused and, on or prior to the date on which an Indenture Supplement is executed and delivered in respect of a Replacement Item of Equipment pursuant to Section 9.11 or 9.14, the Company shall cause each Item of Equipment to be numbered with its road number and reporting mark set forth in the Indenture Supplement describing such Item of Equipment and from and after each such date the Company shall keep and maintain, plainly, distinctly, permanently and conspicuously marked by a plate or stencil printed in contrasting colors upon each side of each Item of Equipment, in letters not less than one inch in height, a legend substantially as follows: "OWNERSHIP SUBJECT TO A SECURITY AGREEMENT FILED WITH THE SURFACE TRANSPORTATION BOARD", with appropriate changes thereof and additions thereto as from time to time may be required by law in order to protect the rights of the Trustee under this Indenture. The Company shall not change the identification number of any Item of Equipment unless and until (i) a statement of new number or numbers to be substituted therefor shall have been filed with the Trustee and duly filed, recorded or deposited, as the case may be, by the Company in all public offices where this Indenture shall have been filed, recorded or deposited and (ii) the Company shall have furnished the Trustee with an opinion of counsel to the effect that such statement has been so filed, recorded or deposited, and that no other filing, recordation, deposit or giving of notice with or to any federal, District of Columbia, state, provincial or local government or agency thereof is necessary to protect the rights of the Trustee in such Item of Equipment. Section 9.08 Replacement of Parts. The Company, at its own cost and expense, shall replace or cause to be replaced all Parts which may from time to time be incorporated or installed in or attached to any Item of Equipment and which may from time to time become worn out, lost, stolen or destroyed. Section 9.09 Insurance. The Company will at all times, as part of an insurance program including appropriate risk retention and self-insurance, and at its own expense, cause to be carried and maintained casualty insurance and public liability insurance with financially sound and reputable insurers of recognized responsibility in respect of the Items of Equipment in such amounts, against such risks and on such terms and conditions as is customarily obtained by the Company in respect of similar equipment owned by it. The Company will forthwith give notice to the Trustee of the cancellation of any such insurance, and, promptly upon obtaining such insurance but in no event later than 30 days after such cancellation, the Company will give to the Trustee a certificate reflecting the replacement of insurance required to be maintained pursuant to this Section 9.09. The Company shall deliver to the Trustee prior to the Closing Date original or duplicate policies or certificates of insurance in form satisfactory to the Trustee evidencing all insurance then required to be maintained by the Company hereunder, and thereafter, within 30 days after the issuance of any additional policies or amendments or supplements to any of such policies, the Company will deliver, or cause to be delivered, the same (or certificates of the insurers under such policies evidencing the same) to the Trustee, and the Company shall, not later than 30 days prior to the expiration of any policy, deliver certificates of the insurers evidencing the replacement thereof. 29 Section 9.10 Age of Equipment. No Item of Equipment shall be more than 25 years old. Section 9.11 Replacement of Items of Equipment upon Event of Loss. (a) Upon the occurrence of an Event of Loss with respect to an Item of Equipment, the Company shall notify the Trustee of such occurrence within 60 days after the Company obtains actual knowledge of such occurrence. Within 60 days after the Company so notifies the Trustee of the occurrence of such Event of Loss, the Company shall give the Trustee notice of its election to perform one of the following options (it being agreed that if the Company shall not have given such notice of election within such 60-day period, the Company shall be deemed to have elected to perform the option set forth in the following clause (ii)). The Company may elect either to: (i) not more than 60 days after notice of its election to the Trustee pursuant to the immediately preceding sentence (such 60th day being the "Loss Replacement Date"), replace the Item of Equipment subject to the Event of Loss with railcars having the same or greater Fair Value; or (ii) on the first Payment Date occurring at least 30 days after notice of its election to the Trustee pursuant to the immediately preceding sentence on which the aggregate principal amount of Equipment Notes to be redeemed pursuant to Section 2.12(b) (together with equipment notes to be redeemed pursuant to Section 2.12(b) of each of the Other Indentures) shall be equal to or greater than $2,000,000 (such Payment Date being the "Loss Redemption Date"), redeem the Equipment Notes in accordance with Section 2.12(b). (b) If the Company elects to substitute a Replacement Item of Equipment pursuant to clause (i) above, the Company shall, at its sole expense, not later than the Loss Replacement Date: (i) deliver to the Trustee, (A) for execution pursuant to Section 5.07, an Indenture Supplement covering the Replacement Item of Equipment and the related Lease, if any, duly executed by the Company and the Guarantor, and a Memorandum of Trust covering the Replacement Item of Equipment, duly executed by the Company and the Guarantor, and (B) a Memorandum of Lease covering the Lease, if any, relating to such Replacement Item of Equipment and cause such executed Memorandum of Trust and Memorandum of Lease, if any, to be duly filed and recorded with the STB pursuant to 49 U.S.C. Section 11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act; (ii) cause a financing statement or statements with respect to the Replacement Item of Equipment and the related Lease, if any, to be filed in such place or places as are necessary in order to evidence and perfect the interests of the Trustee therein; (iii) furnish the Trustee with evidence of compliance with the insurance provisions of Section 9.09 with respect to the Replacement Item of Equipment substantially similar to that originally furnished to the Trustee with respect to the replaced Item of Equipment pursuant to this Indenture; 30 (iv) furnish the Trustee with an Officer's Certificate certifying that, upon consummation of such replacement, no Indenture Default or Indenture Event of Default which arises solely as a result of such replacement will exist hereunder; (v) furnish the Trustee with an Officer's Certificate stating (A) that the Replacement Item of Equipment is free of all Liens (other than Liens permitted under Section 9.06) and has a Fair Value at least equal to the Fair Value of the Item of Equipment so replaced immediately prior to the occurrence of such Event of Loss (which Certificate shall include the basis for determination of such Fair Value), (B) whether such Replacement Item of Equipment is then subject to a lease and, if so, the name of the lessee and such other information as the Trustee may reasonably request, (C) that each Replacement Item of Equipment has been marked in accordance with Section 9.07(d), and (D) that, in the opinion of the signer, all conditions precedent provided for in this Indenture relating to such replacement have been complied with; and (vi) take such other actions and furnish such other certificates and documents as may be necessary or as the Trustee may reasonably require in order to assure that the Replacement Item of Equipment and the related Lease, if any, are duly and properly subjected to the Lien of this Indenture, to the same extent as the Item of Equipment replaced thereby and the related Lease, if any. Section 9.12 Scope of Business Activities Abroad. The Company shall not engage in any business activities within the territory of Mexico which might result in the Company being subject to the Mexican Bankruptcy Law ("Ley de Concursos Mercantiles") without first creating and perfecting a first priority security interest in all Items of Equipment held or owned by the Company within the territory of Mexico and delivering to the Trustee an opinion of Mexican counsel satisfactory to the Trustee as to the perfection and priority of such security interest and evidence of such filings and recordations as may be necessary in the opinion of such counsel to establish and perfect such security interest. Section 9.13 Filings and Opinions. (a) On or prior to the Closing Date the Company will cause the Memorandum of Trust and the Memorandum of Lease, each dated the Closing Date, covering the Items of Equipment and related Leases described in the Indenture Supplement dated the Closing Date to be duly filed and recorded with the STB pursuant to 49 U.S.C. Section 11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act. The Company will furnish to the Trustee evidence of such filing and recordation. (b) Each Indenture Supplement and Memorandum of Lease executed pursuant to Section 9.11(b) or 9.14 shall also cover all Leases not covered by any Memorandum of Lease previously filed as described in Section 9.13(a) or (b). Within 90 days of the end of each fiscal year of the Company, the Company shall deliver to the Trustee an Indenture Supplement for execution pursuant to Section 5.07, and a Memorandum of Lease (covering all Leases, if any, executed by the Company not covered by a Memorandum of Lease that has been filed as described in this sentence or under Section 9.13(a)) duly executed by the Company and cause such Memorandum of Lease to be duly filed and 31 recorded with the STB pursuant to 49 U.S.C. Section 11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transport Act; provided that if any Memorandum of Lease has been so filed pursuant to Section 9.11 or 9.14 during the three-month period immediately following the end of such fiscal year, no filing of any additional Memorandum of Lease or delivery of such an Indenture Supplement will be required pursuant to this paragraph with respect to such fiscal year. The Company shall also cause a financing statement or statements with respect to the Leases covered by such Indenture Supplement to be filed in such place or places as are necessary in order to evidence and perfect the interests of the Trustee therein and shall deliver to the Trustee evidence of such filings. (c) The Company agrees to record and file in accordance with the terms of this Indenture, at its own expense, each Memorandum of Trust and Memorandum of Lease and financing statements (and continuation statements when applicable) with respect to the Indenture Estate now existing or hereafter created meeting the requirements of applicable law in such manner and in such jurisdictions as are necessary to perfect and maintain the perfection of the Lien created hereunder in the Indenture Estate, and to promptly deliver a filed stamped copy of each such financing statement or other evidence of filing or recordation to the Trustee. (d) The Company shall deliver to the Trustee (i) within 90 days after the end of each fiscal year of the Company, an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, as to the due filing of financing statements with the appropriate filing offices and the due filing with the STB pursuant to 49 U.S.C. Section 11301 and the deposit in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act of each Memorandum of Trust and each Memorandum of Lease covering Replacement Items of Equipment subject to the Lien of this Indenture and Leases executed by the Company, in each case, since the later of the Closing Date and the date of the last such Opinion of Counsel delivered to the Trustee and (ii) at any time that the number of Replacement Items of Equipment not covered by such an Opinion of Counsel totals at least 25, an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee, as to the due filing of financing statements with the appropriate filing offices and the due filing with the STB pursuant to 49 U.S.C. Section 11301 and deposit in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act of each Memorandum of Trust and each Memorandum of Lease covering such Replacement Items of Equipment and Leases. (e) If at any time Mexico, one or more states in Mexico, or any of the Canadian provinces establishes a state or provincial or other system for filing and perfecting the security interests of entities such as the Trustee, at the time that the Company takes such action with respect to other equipment similar to the Equipment and also upon the request of the Trustee (given at the request of a Majority in Interest), the Company shall cause any and all of the Operative Agreements to be recorded with or under such system and shall cause all other filings and recordings and all such other action required under such system to be effected and taken, in order to perfect and protect the right, title and interests of the Trustee. Section 9.14 Substitution and Replacement of Equipment. (a) The Company, at its option, may, at any time and from time to time, request the Trustee to release an Item of Equipment from the Lien of this Indenture, and upon receipt of a Company Order requesting such release, the Trustee shall execute and deliver an appropriate instrument furnished by the 32 Company to the Trustee releasing such Item of Equipment from the Lien of this Indenture; provided that no Item of Equipment shall be so released unless, in accordance with this Section, simultaneously there shall be subject to the Lien of this Indenture railcars having the same or greater Fair Value as the Item of Equipment to be so released by the Trustee. (b) At or prior to the time of delivery of any Company Order for release of any Item of Equipment pursuant to this Section, the Company shall take all the actions specified in Section 9.11(b)(i) through (vi) (provided that, except in the case of a substitution resulting from the exercise by a lessee of its purchase option with respect to an Item of Equipment under a Lease, the Officer's Certificate provided pursuant to Section 9.11(b)(iv) shall certify that upon consummation of such replacement, no Indenture Event of Default will exist hereunder) with respect to each Replacement Item of Equipment and the related Lease, if any, and deliver to the Trustee an Officer's Certificate stating the Fair Value, as of the date specified in such Certificate, of each Item of Equipment so to be released by the Trustee (which Certificate shall include the basis for such determination). ARTICLE X GUARANTEE Section 10.01 Guarantee. (a) The Guarantor hereby unconditionally guarantees to each Noteholder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Equipment Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal of, premium, if any, and interest on the Equipment Notes will be promptly paid in full when due, and interest on the overdue principal of, premium, if any, and interest on the Equipment Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Equipment Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor will pay or perform the same immediately. The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. (b) The Guarantor hereby agrees that its obligations hereunder are absolute and unconditional, irrespective of the validity, regularity or enforceability of the Equipment Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Noteholder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The obligations of the Guarantor hereunder shall remain in full force and effect until satisfaction of all obligations guaranteed by it hereunder and, without limiting the generality of the foregoing, to the extent not 33 prohibited by applicable law, shall not be released, discharged or otherwise affected by the existence of any claims, set-off, defense, counterclaim or other rights that the Guarantor may have at any time and from time to time against any Person, whether in connection herewith or with any unrelated transaction. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Guarantee will not be discharged except by complete performance of the obligations contained in the Equipment Notes and this Indenture. (c) If any Noteholder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantor, any amount paid by either to the Trustee or such Noteholder, this Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect. (d) The Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Noteholders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Noteholders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article IV hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such obligations as provided in Article IV hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purpose of this Guarantee. (e) The delivery of any Equipment Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantor. Section 10.02 Consolidation, Merger or Sale of Assets of Guarantor. (a) The Guarantor covenants that it will not merge into or consolidate with any other corporation or sell, convey or otherwise dispose of all or substantially all of its assets to any Person unless (i) either (A) the Guarantor shall be the continuing corporation or (B) the successor corporation (if other than the Guarantor) shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia, and such corporation shall expressly assume the due and punctual performance and observance of all of the covenants and conditions of this Indenture, the Equipment Notes, and the Guarantee to be performed by the Guarantor on the terms set forth herein or therein by supplemental agreements given by such successor corporation to the Guarantor; (ii) such successor corporation shall make such filings and recordings as shall be necessary, desirable or otherwise required to evidence such reorganization, consolidation, merger, sale, conveyance or other disposition; (iii) immediately after giving effect to such transaction, no Indenture Default or Indenture Event of Default shall have occurred and be continuing solely as a result of such consolidation, merger, sale, conveyance or other disposition and the Guarantor shall have delivered to the Trustee an Officer's Certificate to such effect; (iv) in the event that the Guarantor is not the surviving corporation, the Guarantor shall have delivered to the Trustee an Officer's Certificate and an 34 opinion of counsel to such successor corporation, each stating that (x) such consolidation, merger, sale, conveyance or other disposition and the assumption agreement described in clause (i)(B) above comply with such clause (and in the case of such certificate, clause (iii) of this Section 10.02(a)), (y) the assumption agreement described in clause (i)(B) above is a legal, valid and binding obligation of such successor corporation, and enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium and other similar laws and equitable principles affecting the enforcement of creditors' rights generally, and (z) all conditions precedent herein provided for relating to such transactions have been complied with. (b) In case of any such merger, consolidation, sale, conveyance or other disposition and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Guarantor hereunder, with the same effect as if it had been named herein as the party of the first part. ARTICLE XI MISCELLANEOUS Section 11.01 Release of Property. With respect to each Item of Equipment, this Indenture and the trusts created hereby shall terminate without further action and this Indenture shall be of no further force or effect upon the earliest to occur of (i) the release of such Item of Equipment from the Lien of this Indenture by the Trustee pursuant to Section 2.12(a), 9.11 or 9.14, (ii) the payment in full of the principal amount of, interest and any premium on, all Equipment Notes outstanding hereunder and all other sums payable to the Trustee and the Holders of the Equipment Notes hereunder and under such Equipment Notes, and (iii) the date on which all conditions to the defeasance or covenant defeasance of the Equipment Notes under Section 11.02(d) are satisfied. The Trustee shall, upon the written request of the Company, execute and deliver to, and at the expense of, the Person specified by the Company, an appropriate instrument (in due form for recording) furnished by such Person to the Trustee, releasing the appropriate Items of Equipment from the Lien of this Indenture. Section 11.02 Defeasance and Covenant Defeasance. (a) The Company may, at its option evidenced by a resolution of its board of directors (or a duly constituted committee thereof) set forth in an Officer's Certificate, at any time, elect to have either Section 11.02(b) or 11.02(c) be applied to all outstanding Equipment Notes upon compliance with the conditions set forth below in Section 11.02(d). (b) Upon the Company's exercise under Section 11.02(a) of the option applicable to this Section 11.02(b), each of the Company and the Guarantor shall be deemed to have been discharged from its obligations with respect to all outstanding Equipment Notes (including the Guarantee) on the date the conditions set forth in Section 11.02(d) are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Equipment Notes (including the Guarantee), which shall thereafter be deemed to be "outstanding" only for the purposes of Section 11.02(e) and the other Sections of this 35 Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Equipment Notes, the Guarantee and this Indenture (and the Trustee, on demand and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Equipment Notes to receive, solely from the trust fund described in Section 11.02(d), payments in respect of the principal of and premium and interest on, such Equipment Notes when such payments are due, (ii) the Company's obligations with respect to such Equipment Notes under Sections 2.03, 2.04, 2.05 and 2.06, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 11.02. (c) Upon the Company's exercise under Section 11.02(a) of the option applicable to this Section 11.02(c), the Company shall be released from its obligations under any covenant contained in Sections 9.04 through 9.14 and the Guarantor shall be released from its obligation under Section 10.02 with respect to the outstanding Equipment Notes on and after the date the conditions set forth in Section 11.02(d) are satisfied (hereinafter, "covenant defeasance"), and the Equipment Notes shall thereafter be deemed not to be "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder. For this purpose, covenant defeasance means that, with respect to the outstanding Equipment Notes and the Guarantee, the Company and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute an Indenture Default or an Indenture Event of Default under Section 4.01, but, except as specified above, the remainder of this Indenture and such Equipment Notes shall be unaffected thereby. (d) The following shall be the conditions to application of either Section 11.02(b) or Section 11.02(c): (i) The Company shall have irrevocably deposited with the Trustee as funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Noteholders, (A) money in an amount, (B) U.S. Government Obligations that, through the payment of interest and principal in respect thereof in accordance with their terms, will provide (not later than one Business Day before the due date of any payment) money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay the outstanding principal amount of and interest on all the Equipment Notes on the dates such amounts are due. (ii) In the case of an election under Section 11.01(b), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that there has been a change in tax law since the date hereof or there has been published by the Internal Revenue Service a ruling to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Noteholders and the holders of the Pass Through Certificates will not recognize income, gain or loss for United States Federal income tax purposes as a result 36 of the exercise by the Company of its option under Section 11.02(b) and will be subject to United States Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such option had not been exercised. (iii) In the case of an election under Section 11.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Noteholders and the holders of the Pass Through Certificates will not recognize income, gain or loss for United States Federal income tax purposes as a result of the exercise by the Company of its option under Section 11.02(c) and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such option had not been exercised. (iv) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such defeasance trust does not constitute an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and after the passage of 90 days following such deposit, such defeasance trust will not be subject to Section 547 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law. (v) All other amounts then due and payable hereunder have been paid. (vi) Such deposit will not result in a breach or violation of, or constitute a default or event of default under any other agreement or instrument to which the Company is a party or by which it is bound. (vii) No Indenture Event of Default or Indenture Default shall have occurred and be continuing on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit. (viii) The Company shall have delivered to the Trustee a letter from each of Moody's Investor Service, Inc. and Standard & Poor's Rating Services, a division of the McGraw-Hill Companies, Inc. to the effect that immediately after giving effect to such defeasance or covenant defeasance, as the case may be, its respective rating of the Pass Through Certificates will not be withdrawn, suspended, subject to Creditwatch, or lowered from its rating in effect immediately before such defeasance or covenant defeasance. (ix) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance or covenant defeasance (as the case may be) of this Indenture have been complied with. (e) All monies and U.S. Government Obligations deposited with the Trustee pursuant to Section 11.02(d) shall be held in trust and applied by it, in accordance with the provisions of the Equipment Notes and this Indenture, to the payment to the Noteholders of all sums due and to become due thereon for principal and interest, but such money need not be segregated from other funds except to the extent required by law. 37 (f) The Trustee shall promptly pay or return to the Company upon request of the Company any money or U.S. Government Obligations held by it at any time that are not required for the payment of the amounts described above in Section 11.02(e) on the Equipment Notes for which money or U.S. Government Obligations have been deposited pursuant to Section 11.02(d). (g) If the Trustee is unable to apply any money in accordance with Section 11.02(e) by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company and the Guarantor under this Indenture and the Equipment Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.02(b) or 11.02(c), as the case may be, until such time as the Trustee is permitted to apply all such money in accordance with Section 11.02(e); provided, however, that if the Company makes any payment of principal of or premium or interest on, any Equipment Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Noteholders to receive such payment from the money held by the Trustee. Section 11.03 No Legal Title to Indenture Estate in Holders. No Holder of an Equipment Note shall have legal title to any part of the Indenture Estate. The rights of all Holders of Equipment Notes derive solely from this Indenture (including all supplements to this Indenture) and the Indenture Estate and the Holders of the Equipment Notes derive no interest in the Items of Equipment other than their beneficial interest in the Indenture Estate. No transfer, by operation of law or otherwise, of any Equipment Note or other right, title and interest of any Holder of an Equipment Note in and to the Indenture Estate or hereunder shall operate to terminate this Indenture or the trusts hereunder or entitle any successor or transferee of such Holder to an accounting or to the transfer to it of legal title to any part of the Indenture Estate. Section 11.04 Sale of Items of Equipment by Trustee Is Binding. Any sale or other conveyance of any Items of Equipment by the Trustee made pursuant to the terms of this Indenture shall bind the Holders of the Equipment Notes and the Company and shall be effective to transfer or convey all right, title and interest of the Trustee, the Company and such Holders of the Equipment Notes in and to the Equipment. No purchaser or other grantee shall be required to inquire as to the authorization, necessity, expediency or regularity of such sale or conveyance or as to the application of any sale or other proceeds with respect thereto by the Trustee. Section 11.05 Indenture and Equipment Notes for Benefit of the Company, Guarantor, Trustee and Holders Only. Nothing in this Indenture, whether express or implied, shall be construed to give to any Person other than the Company, the Guarantor, the Trustee and the Holders of the Equipment Notes any legal or equitable right, remedy or claim under or in respect of this Indenture or any Equipment Note. Section 11.06 Further Assurances. The Company and the Guarantor will duly execute and deliver to the Trustee such further documents and assurances and take such further action as may be necessary or as the Trustee may from time to time reasonably request or as may be required by applicable law or regulation in order to effectively carry out the intent and purpose of this Indenture and to establish and protect the rights and remedies created or intended to be created in favor of the Trustee hereunder. 38 Section 11.07 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer's Certificate stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (i) a statement that the individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of such individual, such condition or covenant has been complied with. Section 11.08 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters and any such Person may certify or give an opinion as to such matters in one or several documents. Any Opinion of Counsel stated to be based on the opinion of other counsel shall be accompanied by a copy of such other opinion. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Section 11.09 Acts of Holders. (a) Any direction, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. 39 (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or such other officer and where such execution is by an officer of a corporation or association or a member of a partnership, on behalf of such corporation, association or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner which the Trustee deems sufficient. (c) Any action by the Holder of any Equipment Note shall bind the Holder of every Equipment Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such action is made upon such Equipment Note. Section 11.10 Notices. Unless otherwise expressly specified or permitted by the terms hereof, all notices required or permitted under the terms and provisions hereof shall be in writing, and shall become effective when deposited in the United States mail, with proper postage for first class registered or certified mail prepaid, when delivered personally, or, if promptly confirmed by mail as provided above, when dispatched by telecopy or other written telecommunication, addressed (i) if to the Trustee, at its office at 101 Barclay Street, New York, New York 10286, Attention: Corporate Trust Administration, Telecopy/Telefax: (212)896-7298, (ii) if to any Holder of Equipment Notes, at such address set forth in the Equipment Note Register, (iii) if to the Company or the Guarantor, at 2525 Stemmons Freeway, Dallas Texas 75207, Attention: General Counsel, Telecopy/Telefax: (214) 589-8824, and (iv) if to any of the foregoing Persons, at such other address as such Person shall from time to time designate by written notice to the other parties hereto in accordance with this Section 11.09; provided that notices to the Trustee shall not become effective until actually received by the Trustee. Notwithstanding any other provision hereof, if any payment of principal of, premium, if any, and interest on the Equipment Notes is not received by the Trustee when due, the Trustee shall on the next succeeding Business Day use its reasonable best efforts to give immediate written notice by telecopy or its equivalent or by telephone (confirmed in writing) to each holder of an Equipment Note and the Company. Section 11.11 Severability. Any provision of this Indenture which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or enforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Section 11.12 Separate Counterparts. This Indenture may be executed in any number of counterparts (and each of the parties hereto shall not be required to execute the same counterpart). Each counterpart of this Indenture including a signature page executed by each of the parties hereto shall be an original counterpart of this Indenture, but all of such counterparts together shall constitute one instrument. 40 Section 11.13 Successors and Assigns. All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, the Company and its successors and permitted assigns, the Guarantor and its successors and permitted assigns, and the Trustee and its successors and permitted assigns, and each holder of any Equipment Note, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by any holder of an Equipment Note shall bind the successors and assigns of such holder. Section 11.14 Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. Section 11.15 Governing Law. THIS INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. Section 11.16 No Partnership. All parties to this Indenture specifically disavow any intent to form a partnership or joint venture for U.S. federal income tax purposes or otherwise, and agree not to make any filings or take any positions inconsistent with such intent. 41 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers or attorneys-in-fact, as the case may be, thereunto duly authorized, as of the day and year first above written. THE BANK OF NEW YORK, Trustee By ------------------------------ Name: Title: TRINITY INDUSTRIES LEASING COMPANY, Company By ------------------------------ Name: Title: TRINITY INDUSTRIES, INC., Guarantor By ------------------------------ Name: Title: 42 STATE OF ) ) ss: COUNTY OF ) On this __ day of February, 2002 before me personally appeared ________________, to me personally known, who being by me duly sworn, says that he is the ________________ of The Bank of New York, that the foregoing instrument was signed on February __, 2002 on behalf of said banking corporation by authority of its Board of Directors, and he acknowledged that the execution of the foregoing instrument was the free act and deed of said banking corporation. Sworn to before me this ___ day of February, 2002 (NOTARIAL SEAL) -------------------------- Notary Public My Commission Expires: STATE OF ) ) ss: COUNTY OF ) On this, the __ day of February, 2002, before me, a notary public, personally appeared __________, to me personally known, who being by me duly sworn, says that he is the __________ of Trinity Industries Leasing Company, that the foregoing instrument was executed on February __, 2002 on behalf of said corporation by authority of its Board of Directors, and he acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. Sworn to before me this ___ day of February, 2002, (NOTARIAL SEAL) -------------------------- Notary Public My Commission Expires: STATE OF ) ) ss: COUNTY OF ) On this, the __ day of February, 2002, before me, a notary public, personally appeared __________, to me personally known, who being by me duly sworn, says that he is the __________ of Trinity Industries, Inc. that the foregoing instrument was executed on February __, 2002 on behalf of said corporation by authority of its Board of Directors, and he acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. Sworn to before me this ___ day of February, 2002, (NOTARIAL SEAL) -------------------------- Notary Public My Commission Expires: APPENDIX A DEFINED TERMS The definitions stated herein apply equally to both the singular and plural forms of the terms defined. "Affiliate" of any specified Person shall mean any other Person which directly or indirectly controls, or is controlled by, or is under a common control with, such Person. For the purpose of this definition, the term "control" when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" shall have meanings correlative to the foregoing. "Agent" shall mean any Registrar, Paying Agent, or authenticating agent. "Agreement", "this Agreement", "hereof", "hereby", or any other like term means, unless the context requires otherwise, the agreement in which such term is used, including all annexes, exhibits, schedules, and supplements thereto, as such agreement may be amended, modified or supplemented from time to time. "Applicable Laws" shall mean all rules, regulations and orders issued by the STB, the Department of Transportation and any other government or instrumentality, subdivision or agency thereof having jurisdiction and relating to the registration, operation, maintenance and service of the Items of Equipment. "Bankruptcy Code" shall mean the United States Bankruptcy Reform Act of 1978, as amended from time to time, 11 U.S.C. Section 101 et seq. "Bill of Sale" shall mean, with respect to any Item of Equipment, a full warranty bill of sale executed by the manufacturer thereof in favor of the Company for such Item of Equipment. "Business Day" shall mean any day other than a Saturday, Sunday or a day on which commercial banking institutions are authorized or required by law, regulation or executive order to be closed in New York, New York, Dallas, Texas or the city in which the Trustee maintains its Corporate Trust Office. "Closing Date" shall mean February 15, 2002. "Code" shall mean the Internal Revenue Code of 1986, as in effect on the date hereof or as amended from time to time. App-1 "Company" shall mean Trinity Industries Leasing Company, a Delaware corporation, and its successors and permitted assigns. "Company Order" shall mean a written request or order signed in the name of the Company by an Officer thereof. "Corporate Trust Office" shall mean, with respect to the Trustee, the Corporate Trust Administration department of such trustee in the city at which at any particular time its corporate trust business shall be principally administered. "Equipment" or "Equipment Group" shall mean collectively, the Items of Equipment subject to the Lien of the Indenture, as described in one or more Indenture Supplements to the Indenture. "Equipment Cost" shall mean, for any Item of Equipment, the gross amount paid by the Company to the manufacturer thereof, including all applicable sales taxes, and delivery charges as invoiced by such manufacturer to the Company. "Equipment Note Register" shall have the meaning provided in Section 2.04. "Equipment Notes" shall have the meaning specified in the first "Whereas" clause hereof. "Event of Loss" shall mean with respect to any property any of the following events with respect to such property: (i) damage or contamination that, in the reasonable judgment of the Company (as evidenced by an Officer's Certificate), makes repair uneconomic or renders such property unfit for commercial use; (ii) theft or disappearance for a period in excess of six months or destruction that constitutes a total loss; (iii) any damage to such property which results in an insurance settlement with respect to such property on the basis of a total loss; (iv) the condemnation or requisition of title to such property by the Government or any other governmental authority; (v) the permanent return of such property to the manufacturer thereof pursuant to any patent indemnity provisions; (vi) as a result of any amendment, addition or other change in Applicable Law or regulations, such property is rendered permanently unfit for commercial use; or (vii) the confiscation, seizure or requisition of use of such property by the Government or any other governmental authority for a period in excess of 365 days. "Fair Value" shall mean, with respect to any Item of Equipment or Replacement Item of Equipment, the Equipment Cost of such Item of Equipment, less 1/25th of such Equipment Cost for each full period of one year elapsed between the date such Equipment was first put into service and the date of the Company's election to effect a replacement of such Equipment. "Government" shall mean the government of any country or state or any political subdivision thereof and any instrumentality, subdivision or agency thereof. "Guarantee" shall mean the guarantee by the Guarantor pursuant to Article X. App-2 "Guarantor" shall mean Trinity Industries, Inc., a Delaware corporation, and its successors and permitted assigns. "Holder" or "Noteholder" shall mean the registered holder of any Equipment Note. "Indenture" or "Trust Indenture" shall mean that certain [A] Trust Indenture and Security Agreement dated as of February 15, 2002 among the Company, the Guarantor and The Bank of New York, as Trustee, and all annexes, supplements and exhibits thereto, all as amended, supplemented or otherwise modified from time to time, including supplementation by each Indenture Supplement executed and delivered pursuant thereto. "Indenture Default" shall mean any event that after the giving of notice or lapse of time or both would become an Indenture Event of Default. "Indenture Estate" shall have the meaning specified in the Granting Clause of the Indenture. "Indenture Event of Default" shall have the meaning specified in Section 4.01 of the Indenture. "Indenture Supplement" shall mean each Indenture Supplement, substantially in the form of Exhibit A to the Indenture, to be entered into by the Company and the Trustee, covering the Items of Equipment and Leases referenced therein, any amendment to such Indenture Supplement and any subsequent Indenture Supplement executed and delivered in connection with a Replacement Item of Equipment or Lease. "Interest Payment Date" shall mean each semiannual interest payment date on February 15 and August 15 of each year, commencing August 15, 2002. "Item of Equipment" shall mean (i) each railcar listed by the Company's road numbers and reporting marks in an Indenture Supplement executed and delivered under the Indenture; and (ii) any and all Parts incorporated or installed in or attached to such and any and all Parts removed from such railcar. The term "Items of Equipment" also shall mean, as of any date of determination, all Items of Equipment then subject to the Lien of the Indenture. "Lease" shall mean, with respect to each Item of Equipment, the lease agreement between the Company and the lessee thereunder providing for the lease of such Item of Equipment, but shall specifically exclude the provisions of such lease agreement not relating to such Item of Equipment (including, without limitation, any rents payable on any items of equipment not subject to the lien of the Indenture). "Lien" shall mean any mortgage, pledge, charge, security interest, lien, encumbrance, lease, assignment, exercise of rights or claim. "Loss Redemption Date" shall have the meaning provided in Section 9.11(a). "Loss Replacement Date" shall have the meaning provided in Section 9.11(a). App-3 "Majority in Interest" as of a particular date of determination shall mean with respect to any action or decision of the holders of the Equipment Notes, the holders of more than 50% in aggregate principal unpaid amount of the Equipment Notes, if any, then outstanding which are affected by such decision or action. "Memorandum of Lease" shall mean each Memorandum of Lease, substantially in the form of Exhibit E to the Indenture, covering the Leases referenced therein, and any amendment or other modification thereto, including any modification or substitution therefor required by any Applicable Law. "Memorandum of Trust" shall mean each Memorandum of [A] Trust Indenture and Security Agreement and [A] Trust Indenture Supplement, substantially in the form of Exhibit D to the Indenture covering the Items of Equipment referenced therein, and any amendment or other modification thereto, including any modification or substitution therefor required by any Applicable Law. "Offering Memorandum" shall mean the Offering Memorandum relating to the offering of the Pass Through Certificates. "Officer" shall mean, with respect to the Company or the Guarantor, the Chairman of the Board, the Vice Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, a Vice President, the Treasurer or the Secretary of the Company or the Guarantor, as the case may be. "Officer's Certificate" shall mean a certificate signed (i) in the case of a corporation by the Chairman of the Board, the Vice Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of such corporation, and (ii) in the case of a commercial bank or trust company, the Chairman or Vice Chairman of the Executive Committee or the Treasurer, any Trust Officer, any Vice President, any Executive or Senior or Second or Assistant Vice President, or any other officer or assistant officer customarily performing the functions similar to those performed by the persons who at the time shall be such officers, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. "Operative Documents" shall mean each of the Indenture, each Indenture Supplement and each Bill of Sale. "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be (a) an attorney employed by the Company or the Guarantor, or (b) such other counsel designated by the Company, whether or not such counsel is an employee of the Company, and who shall be acceptable to the Trustee. "Other Indentures" shall mean the [B] Trust Indenture and Security Agreement and the [C] Trust Indenture and Security Agreement, each dated the date of the Indenture and among the Company, the Guarantor and the Trustee. App-4 "Part" or "Parts" shall mean all appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment of whatever nature that at any time of determination are incorporated or installed in or attached to an Item of Equipment. "Pass Through Certificates" shall mean the Trinity Industries Leasing Company 2002-1 Pass Through Trust Pass Through Certificates, Series 2002-1. "Paying Agent" shall have the meaning provided in Section 2.04. "Payment Date" shall mean each February 15 and August 15 of each year commencing August 15, 2002. "Permitted Liens" shall mean any Lien of the type described in clauses (a) through (f) of Section 9.06 of the Indenture. "Person" shall mean any individual, partnership, corporation, joint venture, limited liability company, limited liability partnership, trust, business trust, association, joint stock company, trust, unincorporated organization, or a government or any agency, instrumentality or political subdivision thereof. "Registrar" shall have the meaning provided in Section 2.04. "Replacement Item of Equipment" shall mean a railcar which shall have been subjected to the Lien of the Indenture pursuant to Section 9.11 or 9.14 of the Indenture, together with all Parts relating thereto. "Responsible Officer", when used with respect to the Trustee, shall mean any officer of the Trustee with direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. "Securities Act" shall mean the Securities Act of 1933, as amended. "Specified Investments" shall mean (a) direct obligations of the United States of America and agencies thereof for which the full faith and credit of the United States is pledged, (b) obligations fully guaranteed by the United States of America, (c) certificates of deposit issued by, or bankers' acceptances of, or time deposits with, any bank, trust company or national banking association incorporated or doing business under the laws of the United States of America or one of the States thereof having combined capital and surplus and retained earnings of at least five hundred million dollars ($500,000,000) (including the Trustee if such conditions are met), (d) commercial paper of companies (which may include the Company), banks, trust companies or national banking associations incorporated or doing business under the laws of the United States of America or one of the States thereof and in each case having a rating assigned to such commercial paper by Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies Inc. or Moody's Investors Service, Inc. or, if neither such organization shall rate such commercial paper at any time, by any nationally recognized rating organization in the United States of America) equal to the highest rating assigned by such organization, (e) purchase agreements with any financial institution having a combined capital and surplus of at least seven App-5 hundred and fifty million dollars ($750,000,000) fully collateralized by obligations of the type described in clauses (a) through (d) above and (f) money market funds having a rating in the highest investment category granted thereby by a recognized credit rating agency at the time of acquisition, including any fund for which the Trustee or an Affiliate of the Trustee serves as an investment advisor, administrator, shareholder servicing agent, custodian or subcustodian, notwithstanding that (i) the Trustee or an Affiliate of the Trustee charges and collects fees and expenses from such funds for services rendered (provided that such charges, fees and expenses are on terms consistent with terms negotiated at arm's length) and (ii) the Trustee charges and collects fees and expenses for services rendered pursuant to the Indenture; provided that if all of the above investments are unavailable, the entire amount to be invested may be used to purchase Federal Funds from an entity described in (c) above; and provided further that no investment shall be eligible as a "Specified Investment" unless the final maturity or date of return of such investment is 91 days or less from the date of purchase thereof. "STB" shall mean the Surface Transportation Board of the United States Department of Transportation and any agency or instrumentality of the United States government succeeding to its functions. "Taxes" shall mean any license, registration and filing fees and all taxes, withholdings, assessments, levies, imposts, duties or charges of any nature whatsoever, together with any penalties, fines or interest thereon or other additions thereto imposed, withheld, levied or assessed by any country or any taxing authority or governmental subdivision thereof or therein or by any international authority. "Trustee" shall have the meaning provided in the first paragraph of the Indenture. "U.S. Government Obligations" shall mean securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the Equipment Notes, and shall also include depository receipts issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt. App-6 EXHIBIT A to [A] Trust Indenture and Security Agreement FORM OF TRUST INDENTURE SUPPLEMENT NO. ____ This INDENTURE SUPPLEMENT No. _____, dated _____________________ (this "Indenture Supplement"), by and among TRINITY INDUSTRIES LEASING COMPANY, a Delaware corporation (the "Company"), TRINITY INDUSTRIES, INC., a Delaware corporation (the "Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the "Trustee"); WITNESSETH: WHEREAS, the [A] Trust Indenture and Security Agreement, dated as of February __, 2002 (as supplemented or modified from time to time, the "Indenture"), by and among the Company, the Guarantor and the Trustee, provides for the execution and delivery of Indenture Supplements thereto substantially in the form hereof which shall particularly describe the Items of Equipment and Leases, and shall specifically mortgage the Items of Equipment and assign the Leases to the Trustee; and WHEREAS, the Indenture relates to the Items of Equipment and the Leases relating to such Items of Equipment, all as described on Schedule 1 attached hereto and made a part hereof, and a counterpart of the Indenture is attached to and made a part of this Indenture Supplement; NOW, THEREFORE, in order to secure the prompt payment of the principal of, and premium, if any, and interest on all of the Equipment Notes from time to time outstanding under the Indenture and the performance and observance by the Company of all the agreements, covenants and provisions in the Indenture and in the Equipment Notes for the benefit of the holders of the Equipment Notes, subject to the terms and conditions of the Indenture, and in consideration of the premises and of the covenants contained in the Indenture and of the acceptance of the Equipment Notes by the holders thereof, and of the sum of $1.00 paid to the Company by the Trustee at or before the delivery hereof, the receipt whereof is hereby acknowledged, the Company, in accordance with the Granting Clause of the Indenture, has sold, assigned, transferred, pledged and confirmed, and does hereby sell, assign, transfer, pledge and confirm, the property comprising the Items of Equipment and the Leases described in Schedule 1 attached hereto and made a part hereof to the Trustee, its successors and assigns, in the trust created by the Indenture for the benefit of the holders from time to time of the Equipment Notes. To have and to hold all and singular the aforesaid property unto the Trustee, its successors and assigns, in trust for the benefit and security of the holders from time to time of the Equipment Notes and for the uses and purposes and subject to the terms and provisions set forth in the Indenture. A-1 This Indenture Supplement shall be construed as supplemental to the Indenture and shall form a part thereof, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed. This Indenture Supplement is being delivered in the State of New York. This Indenture Supplement may be executed by the Company and the Trustee in separate counterparts, each of which when so executed and delivered is an original, but all such counterparts shall together constitute but one and the same Supplement. AND FURTHER, the Company hereby acknowledges that the Items of Equipment and the Leases referred to in Schedule 1 attached hereto and made a part hereof have been delivered to the Company and are included in the property of the Company, subject to the pledge or mortgage thereof under the Indenture. IN WITNESS WHEREOF, each of the Company and the Guarantor has caused this Indenture Supplement to be duly executed by one of its duly authorized officers, as of the day and year first above written. TRINITY INDUSTRIES LEASING COMPANY By ----------------------------------- Name: Title: TRINITY INDUSTRIES, INC. By ----------------------------------- Name: Title: Acknowledged: THE BANK OF NEW YORK, as Trustee By ----------------------------------------- Name: Title: Authorized Signatory A-2 SCHEDULE 1 to EXHIBIT A to [A] Trust Indenture and Security Agreement ITEMS OF EQUIPMENT [insert description of the Items of Equipment, including the Company's respective road numbers and reporting marks, and identification of the Leases] A-3 EXHIBIT B to [A] Trust Indenture and Security Agreement FORM OF EQUIPMENT NOTE THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED FOR SALE OR SOLD UNLESS EITHER REGISTERED UNDER THE SECURITIES ACT AND SUCH APPLICABLE STATE OR OTHER LAWS OR EXEMPTIONS FROM SUCH REGISTRATION REQUIREMENTS ARE AVAILABLE. TRINITY INDUSTRIES LEASING COMPANY 7.755% EQUIPMENT NOTE No. Date: ------ $ Maturity Date: --------- TRINITY INDUSTRIES LEASING COMPANY (herein called the "Company") hereby promises to pay to ___________________ or registered assigns, the principal sum of $_______ (_______ dollars) in lawful currency of the United States of America, together with interest on the amount of said principal sum remaining unpaid from time to time from the date hereof until payment in full hereof is made, at the rate of 7.755 % per annum (computed on the basis of a 360-day year of twelve 30-day months). Interest on such principal sum shall be due and payable on each February 15 and August 15 (each, a "Payment Date"), and the unpaid principal amount hereof shall be due on the Maturity Date specified above. Interest on any overdue principal, premium or interest (to the extent lawful) shall be paid from the due date thereof at the rate of interest applicable to this Equipment Note, payable on demand. Payments of interest on this Equipment Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Equipment Note, and any premium, shall be made in immediately available funds by wire transfer to the Person whose name appears on the Equipment Note Register as of the close of business on the 15th day preceding such Payment Date. Each such payment shall be made on the date such payment is due and, except for the last payment of principal hereof, without any presentment or surrender of this Equipment Note. Whenever the date scheduled for any payment to be made hereunder or under the Indenture shall not be a Business Day, then such payment need not be made on such scheduled date but may be made on the next succeeding Business Day with the same force and effect as if made on such scheduled date and (provided such payment is made on such next succeeding Business Day) no additional interest shall accrue on the amount of such payment from and after such scheduled date to the time of such payment on such next succeeding Business Day. B-1 Each holder hereof, by its acceptance of this Equipment Note, agrees that each payment received by it hereunder shall be applied, first, to the payment of accrued but unpaid interest on this Equipment Note then due (as well as any interest on any overdue principal amount) and (to the extent permitted by law) any overdue premium, if any, any overdue interest and any other overdue amount hereunder to the date of payment, second, to the payment of any premium then due, and third, to the payment of the unpaid principal amount of this Equipment Note then due. Furthermore, each holder hereof, by its acceptance of this Equipment Note, and the Company hereby agree to treat this Equipment Note as indebtedness for U.S. federal income tax purposes and agree not to file any tax return or statement inconsistent with that treatment. This Equipment Note is one of the 7.755% Equipment Notes referred to in the [A] Trust Indenture and Security Agreement dated as of February 15, 2002 among the Company, Trinity Industries, Inc., as guarantor, and The Bank of New York, as trustee (as supplemented or modified from time to time, the "Indenture") which have been or are to be issued by the Company pursuant to the terms of the Indenture. The Indenture Estate is held by the Trustee as security for the Equipment Notes. Reference is hereby made to the Indenture for a statement of the rights of the holder of, and the nature and extent of the security for, this Equipment Note, as well as for a statement of the terms and conditions of the trusts created by the Indenture, to all of which terms and conditions in the Indenture each holder hereof agrees by its acceptance of this Equipment Note. This Equipment Note is not subject to redemption or prepayment except as provided in Section 2.12 of the Indenture. The holder hereof, by its acceptance of this Equipment Note, agrees to be bound by said provisions. This Equipment Note is entitled to the benefits of the Guarantee provided in Article X of the Indenture. This Equipment Note is a registered Equipment Note and is transferable, as provided in the Indenture, only upon surrender of this Equipment Note for registration of transfer duly endorsed by, or accompanied by a written statement of transfer duly executed by, the registered holder hereof or his attorney duly authorized in writing. Prior to the due presentation for registration of transfer of this Equipment Note, the Company and the Trustee shall deem and treat the registered holder of this Equipment Note as the absolute owner and holder hereof for the purpose of receiving payment of all amounts payable with respect hereto and for all other purposes and shall not be affected by any notice to the contrary. This Equipment Note shall be governed by the laws of the State of New York. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Equipment Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. B-2 IN WITNESS WHEREOF, the Company has caused this 7.755% Equipment Note to be executed by one of its authorized officers as of the date hereof. TRINITY INDUSTRIES LEASING COMPANY By ------------------------------------ Name: Title: B-3 [FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION] This is one of the 7.755% Equipment Notes referred to in the within-mentioned Indenture. THE BANK OF NEW YORK, as Trustee By ------------------------------------- Authorized Signatory B-4 [FORM OF TRANSFER NOTICE] FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto Insert Taxpayer Identification No. - ------------------------------------------------------------------------- Please print or typewrite name and address including zip code of assignee - ------------------------------------------------------------------------- the within Equipment Note and all rights thereunder, hereby irrevocably constituting and appointing ______________________________________ attorney to transfer said Equipment Note on the books of the Company with full power of substitution in the premises. B-5 EXHIBIT C to [A] Trust Indenture and Security Agreement [Letterhead of the Company] [Letterhead of the Trustee] [Date] [Lessee Name and Address] Ladies and Gentlemen: We hereby notify you that pursuant to the [A] Trust Indenture and Security Agreement dated as of February 15, 2002, as supplemented from time to time (the "Indenture"), among Trinity Industries Leasing Company (the "Company"), Trinity Industries, Inc. and The Bank of New York, as Trustee, the Company has assigned to the Trustee its rights under the lease with you dated ______ (the "Lease") relating to the following certain railcars [insert road numbers and reporting marks of railcars subject to the Lien of the Indenture which are covered by the Lease] (the "Railcars"), including the right to receive amounts payable to the Company under the Lease in respect of the Railcars. The Indenture provides that upon the occurrence of an Indenture Event of Default (as defined in the Indenture), this notice will be given to each lessee under a lease assigned to the Trustee under the Indenture. This notice is being given pursuant to Section 4.03(f) of the Indenture in accordance with Section 9-406 of the Uniform Commercial Code. You are hereby directed to remit all payments under the Lease in respect of the Railcars to the Trustee to the account specified below. On and after the date of your receipt of this notice you may discharge your obligation under the Lease in respect of the Railcars only by making payment to the Trustee. Any payment to the Company or any party other than the Trustee will not be effective to discharge your obligation under the Lease in respect of the Railcars. If you have any questions regarding this matter, please contact the Trustee at the address set forth below. [insert notice and account information for Trustee] Very truly yours, [Insert name of Trustee] By: ----------------------------- Name: Title: C-1 EXHIBIT D to [A] Trust Indenture and Security Agreement FORM OF MEMORANDUM OF TRUST MEMORANDUM OF [A] TRUST INDENTURE AND SECURITY AGREEMENT AND [A] TRUST INDENTURE SUPPLEMENT NO. __ This Memorandum of [A] Trust Indenture and Security Agreement and [A] Trust Indenture Supplement No. __ (this "Memorandum") is made and entered into by and among Trinity Industries Leasing Company, a Delaware corporation (the "Company"), Trinity Industries, Inc., a Delaware corporation (the "Guarantor"), and The Bank of New York, as Trustee under the Security Agreement (as defined below) (hereinafter referred to as "Trustee") respecting that certain [A] Trust Indenture and Security Agreement dated as of February ____, 2002, among the Company, the Guarantor and the Trustee (the "Security Agreement") and the [A] Trust Indenture Supplement No. __ dated as of ______, among the Company, the Guarantor and the Trustee. Pursuant to the provisions of the Security Agreement, the Company, the Guarantor and Trustee hereby affirm and acknowledge that: 1. The Company has agreed to execute and deliver to the Trustee an equipment note and the Trustee has agreed to accept such an equipment note from the Company and, as security therefor, grant the Trustee a first priority security interest in (i) certain railroad equipment bearing reporting marks and road numbers as listed on Exhibit A attached hereto and (ii) certain leases with respect to such equipment identified by the lessee numbers and rider numbers as listed on Exhibit B attached hereto, subject to the terms defined in the Security Agreement. 2. This Memorandum is prepared only for the public record and is being recorded with the Surface Transportation Board pursuant to 49 U.S.C. Section 11301(a) and the Registrar General of Canada. D-1 IN WITNESS WHEREOF, each of the parties hereto, pursuant to due corporate authority, has caused this Memorandum to be duly executed in its corporate name by its officers, thereunto duly authorized, as of _____________. COMPANY: TRUSTEE: TRINITY INDUSTRIES LEASING COMPANY THE BANK OF NEW YORK By: By: ------------------------------------ ---------------------------- Name: Name: ---------------------------------- -------------------------- Title: Title: --------------------------------- ------------------------- GUARANTOR: TRINITY INDUSTRIES, INC. By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- D-2 STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of The Bank of New York, that said instrument was signed on behalf of said corporation, not in its individual capacity, but solely as trustee under the Security Agreement by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. -------------------------------- Notary Public My Commission Expires: STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of Trinity Industries Leasing Company, that said instrument was signed on behalf of said corporation by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. -------------------------------- Notary Public My Commission Expires: STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of Trinity Industries, Inc., that said instrument was signed on behalf of said corporation by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. -------------------------------- Notary Public My Commission Expires: EXHIBIT A EXHIBIT B EXHIBIT E to [A] Trust Indenture and Security Agreement FORM OF MEMORANDUM OF LEASE MEMORANDUM OF LEASE This Memorandum of Lease (this "Memorandum") is made and executed as of _____, ____ by Trinity Industries Leasing Company, a Delaware corporation (the "Lessor"), with reference to the following: 1. Lessor is the owner of certain railroad equipment bearing reporting marks and road numbers as listed on Exhibit A attached hereto (the "Equipment") and has leased the Equipment to certain lessees pursuant to the leases identified by the lessee numbers and rider numbers as listed on Exhibit B attached hereto (the "Leases"). 2. This Memorandum is prepared only for the public record and is being recorded with the Surface Transportation Board pursuant to 49 U.S.C. 11301(a) and the Registrar General of Canada. [signature page to follow] E-1 IN WITNESS WHEREOF, the undersigned has caused this Memorandum to be executed by a duly authorized officer as of the day and year first above written. TRINITY INDUSTRIES LEASING COMPANY By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- E-2 STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of Trinity Industries Leasing Company, that said instrument was signed on behalf of said corporation by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. -------------------------------- Notary Public My Commission Expires: EXHIBIT A EXHIBIT B EX-4.3 5 d94365ex4-3.txt [B] TRUST INDENTURE AND SECURITY AGREEMENT EXHIBIT 4.3 ================================================================================ [B] TRUST INDENTURE AND SECURITY AGREEMENT Dated as of February 15, 2002 among TRINITY INDUSTRIES LEASING COMPANY and TRINITY INDUSTRIES, INC. and THE BANK OF NEW YORK, Trustee ================================================================================ TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS Section 1.01 Certain Definitions.........................................................................3 ARTICLE II THE EQUIPMENT NOTES Section 2.01 Form of Equipment Notes.....................................................................3 Section 2.02 Execution, Authentication and Denominations.................................................4 Section 2.03 Registrar and Paying Agent..................................................................4 Section 2.04 Paying Agent to Hold Money in Trust.........................................................5 Section 2.05 Transfer and Exchange.......................................................................5 Section 2.06 Replacement Equipment Notes.................................................................6 Section 2.07 Outstanding Equipment Notes.................................................................6 Section 2.08 Cancellation................................................................................7 Section 2.09 Application of Payments to Principal Amount and Interest....................................7 Section 2.10 Termination of Interest in Indenture Estate.................................................7 Section 2.11 Equally and Ratably Secured.................................................................7 Section 2.12 Redemption; Notice of Redemption............................................................7 ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE INDENTURE ESTATE Section 3.01 Payments Prior to Indenture Event of Default................................................9 Section 3.02 [Reserved]..................................................................................9 Section 3.03 Payments After Indenture Event of Default...................................................9 Section 3.04 Other Payments.............................................................................10 ARTICLE IV REMEDIES OF THE TRUSTEE UPON AN INDENTURE EVENT OF DEFAULT Section 4.01 Indenture Events of Default................................................................10 Section 4.02 Acceleration; Rescission and Annulment.....................................................11 Section 4.03 Remedies with Respect to Indenture Estate..................................................12 Section 4.04 Waiver of Existing Defaults................................................................14 Section 4.05 Control by Majority........................................................................14
i Section 4.06 Limitation on Suits........................................................................15 Section 4.07 Rights of Holders to Receive Payment.......................................................15 Section 4.08 Delay or Omission Not Waiver...............................................................15 Section 4.09 Remedies Cumulative........................................................................15 Section 4.10 Discontinuance of Proceedings..............................................................16 Section 4.11 Undertaking for Costs......................................................................16 ARTICLE V THE TRUSTEE Section 5.01 Acceptance of Trusts and Duties............................................................16 Section 5.02 Certain Duties and Responsibilities........................................................16 Section 5.03 Notice of Indenture Defaults...............................................................17 Section 5.04 Certain Rights of Trustee..................................................................17 Section 5.05 Not Responsible for Recitals or Issuance of Equipment Notes................................18 Section 5.06 May Hold Equipment Notes...................................................................19 Section 5.07 Indenture Supplements......................................................................19 Section 5.08 Effect of Replacements.....................................................................19 Section 5.09 Withholding Taxes..........................................................................19 Section 5.10 No Representations or Warranties as to the Items of Equipment or Documents.................19 Section 5.11 No Segregation of Moneys; No Interest; Investments.........................................19 Section 5.12 No Compensation from Holders or Indenture Estate...........................................20 Section 5.13 Limitation on Duty of Trustee in Respect of Indenture Estate...............................20 Section 5.14 No Liability of Trustee....................................................................20 ARTICLE VI INDEMNIFICATION AND COMPENSATION OF TRUSTEE Section 6.01 Scope of Indemnification...................................................................21 Section 6.02 Compensation...............................................................................21 ARTICLE VII SUCCESSOR TRUSTEES Section 7.01 Resignation of Trustee; Appointment of Successor...........................................22 Section 7.02 Appointment of Co-Trustee..................................................................23 Section 7.03 No Liability for Clean-up of Hazardous Materials...........................................24 ARTICLE VIII SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS Section 8.01 Supplemental Indentures....................................................................24
ii Section 8.02 Trustee Protected..........................................................................26 Section 8.03 Request of Substance, Not Form.............................................................26 Section 8.04 Documents Mailed to Holders................................................................26 Section 8.05 Notation on or Exchange of Equipment Notes.................................................26 ARTICLE IX COVENANTS OF THE COMPANY Section 9.01 Payment of Equipment Notes.................................................................27 Section 9.02 Maintenance of Corporate Existence.........................................................27 Section 9.03 Consolidation, Merger or Sale of Assets of the Company.....................................27 Section 9.04 Annual Statements as to Compliance by the Company..........................................28 Section 9.05 Notices of Indenture Defaults..............................................................28 Section 9.06 Liens......................................................................................28 Section 9.07 Maintenance; Compliance with Laws; Possession; Identification Marks........................28 Section 9.08 Replacement of Parts.......................................................................29 Section 9.09 Insurance..................................................................................29 Section 9.10 Age of Equipment...........................................................................30 Section 9.11 Replacement of Items of Equipment upon Event of Loss.......................................30 Section 9.12 Scope of Business Activities Abroad........................................................31 Section 9.13 Filings and Opinions.......................................................................31 Section 9.14 Substitution and Replacement of Equipment..................................................32 ARTICLE X GUARANTEE Section 10.01 Guarantee..................................................................................33 Section 10.02 Consolidation, Merger or Sale of Assets of Guarantor.......................................34 ARTICLE XI MISCELLANEOUS Section 11.01 Release of Property........................................................................35 Section 11.02 Defeasance and Covenant Defeasance.........................................................35 Section 11.03 No Legal Title to Indenture Estate in Holders..............................................38 Section 11.04 Sale of Items of Equipment by Trustee Is Binding...........................................38 Section 11.05 Indenture and Equipment Notes for Benefit of the Company, Guarantor, Trustee and Holders Only..................................................................................38 Section 11.06 Further Assurances.........................................................................38 Section 11.07 Compliance Certificates and Opinions.......................................................39 Section 11.08 Form of Documents Delivered to Trustee.....................................................39 Section 11.09 Acts of Holders............................................................................39 Section 11.10 Notices....................................................................................40 Section 11.11 Severability...............................................................................40
iii Section 11.12 Separate Counterparts......................................................................40 Section 11.13 Successors and Assigns.....................................................................41 Section 11.14 Headings...................................................................................41 Section 11.15 Governing Law..............................................................................41 Section 11.16 No Partnership.............................................................................41
EXHIBIT A - Form of Trust Indenture Supplements EXHIBIT B - Form of Equipment Notes EXHIBIT C - Form of Notice to Lessees EXHIBIT D - Form of Memorandum of Trust EXHIBIT E - Form of Memorandum of Lease APPENDIX A - Definitions iv [B] TRUST INDENTURE AND SECURITY AGREEMENT This [B] TRUST INDENTURE AND SECURITY AGREEMENT, dated as of February 15, 2002 (this "Indenture"), by and among Trinity Industries Leasing Company, a Delaware corporation (the "Company"), Trinity Industries, Inc. a Delaware corporation (the "Guarantor"), and The Bank of New York, a New York banking corporation, as Trustee hereunder, and any successor appointed in accordance with the terms hereof (the "Trustee"); WITNESSETH: WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of the 7.755% Equipment Notes (the "Equipment Notes") issuable as provided in this Indenture; WHEREAS, the Company and the Guarantor desire by this Indenture, among other things, to provide for (i) the issuance by the Company of the Equipment Notes, (ii) the guarantee by the Guarantor of the Company's obligations in respect of the Equipment Notes and under this Indenture, and (iii) the assignment, mortgage and pledge by the Company to the Trustee, as part of the Indenture Estate hereunder, among other things, of, and the grant of a security interest in, all of the Company's right, title and interest in and to the Items of Equipment, the Leases and the proceeds thereof, in accordance with the terms hereof, in trust, as security for, among other things, the Company's obligations to the holders of the Equipment Notes for the equal and ratable benefit of such holders; WHEREAS, all things have been done to make the Equipment Notes, when executed by the Company and authenticated and delivered by the Trustee hereunder, the valid, binding and enforceable obligations of the Company; and WHEREAS, all things necessary to make this Indenture the legal, valid and binding obligation of the Company, the Guarantor and the Trustee, for the uses and purposes herein set forth, in accordance with its terms, have been done and performed and have happened. GRANTING CLAUSE NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT WITNESSETH that, to secure the prompt payment of the principal of and interest and premium, if any, on and all other amounts due with respect to, the Equipment Notes from time to time outstanding hereunder and the performance and observance by the Company of all the agreements, covenants and provisions herein and in the Equipment Notes all for the benefit of the holders of the Equipment Notes, and for the uses and purposes and subject to the terms and provisions hereof, and in consideration of the premises and of the covenants herein contained, the Company does hereby sell, assign, transfer, convey, mortgage, pledge and confirm unto the Trustee, its successors and assigns, for the security and benefit of the holders of the Equipment Notes from time to time, a first priority security interest in and mortgage lien on all right, title and interest of the Company in and to the following described property, rights, interests and privileges (which collectively, including all property hereafter specifically subjected to the Lien of this Indenture by any instrument supplemental hereto, being herein called the "Indenture Estate"), to wit: (i) the Items of Equipment including, without limitation, all additions, alterations or modifications thereto or replacements of any part thereof, whenever made or performed or acquired and all other items of tangible personal property of any kind acquired by the Company in connection with the acquisition of the Items of Equipment, in each case whether acquired at the time of acquisition of the Items of Equipment or thereafter acquired pursuant to this Indenture or otherwise; and (ii) all Leases, including, without limitation, all amounts of rent, insurance proceeds and other payments of any kind for or with respect to the Equipment subject to each Lease; (iii) all monies and securities now or hereafter paid or deposited or required to be paid or deposited with the Trustee pursuant to any provision of this Indenture, or any Lease or required to be held by the Trustee hereunder or thereunder; and (iv) all right, title and interest of the Company in and to all proceeds, rents, issues, profits, products, revenues and other income, from and on account of the property, rights and privileges subjected or required to be subjected to the Lien of this Indenture. TO HAVE AND TO HOLD all and singular the aforesaid property unto the Trustee, its successors and assigns, in trust for the benefit and security of the holders of the Equipment Notes from time to time, without any priority of any one Equipment Note over any other Equipment Note, and for the uses and purposes, and subject to the terms and provisions, set forth in this Indenture. UPON CONDITION that, unless and until an Event of Default shall have occurred and be continuing, the Company shall be permitted, to the exclusion of the Trustee, to possess and use the Indenture Estate and exercise all rights with respect thereto. It is expressly agreed that anything herein contained to the contrary notwithstanding, the Company shall remain liable under each of the Operative Documents and Leases to which it is a party to perform all of the obligations, if any, assumed by it thereunder, all in accordance with and pursuant to the terms and provisions thereof, and the Trustee and the holders shall have no obligation or liability under any of the Operative Documents or Leases to which the Company is a party by reason of or arising out of this assignment, nor shall the Trustee or the holders of Equipment Notes be required or obligated in any manner to perform or fulfill any obligations of the Company under or pursuant to any of the Operative Documents or Leases to which the Company is a party or, except as herein expressly provided, to make any payment, or to make any inquiry as to the nature or sufficiency of any payment received by it, or present or file any claim, or take any action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times. The Company does hereby constitute the Trustee the true and lawful attorney of the Company, irrevocably, with full power (in the name of the Company or otherwise) to ask, require, demand, receive, compound and give acquittance for any and all money and claims for 2 money due and to become due to the Company which are part of the Indenture Estate, to endorse any checks or other instruments or orders in connection therewith and to file any notices or claims or take any action or institute any proceedings which the Trustee may deem to be necessary or advisable in the premises. The Company agrees that at any time and from time to time, the Company will promptly and duly execute, deliver and file or cause to be executed, delivered and filed any and all such further instruments and documents as may be necessary or as the Trustee may reasonably request in order to obtain the full benefits of this assignment and of the rights and powers herein granted. The Company does hereby warrant and represent that it has not assigned or pledged, and hereby covenants that it will not assign or pledge, so long as the assignment hereunder shall remain in effect, any of its right, title or interest hereby assigned to anyone other than the Trustee and that it will not, except as provided in or permitted by this Indenture, accept any payment constituting part of the Indenture Estate or enter into an agreement amending or supplementing any of the Operative Documents, execute any waiver or modification of, or consent under the terms of any of the Operative Documents, settle or compromise any claim arising under any of the Operative Documents, or submit or consent to the submission of any dispute, difference or other matter arising under or in respect of any of the Operative Documents to arbitration thereunder. IT IS HEREBY COVENANTED AND AGREED by and among the parties hereto as follows: ARTICLE I DEFINITIONS Section 1.01 Certain Definitions. Unless the context otherwise requires, all capitalized terms used herein and not otherwise defined shall have the meanings set forth in Appendix A hereto for all purposes of this Indenture. All references to articles, sections, clauses, schedules, exhibits, annexes and appendices in this Indenture are to articles, sections, clauses, schedules, exhibits, annexes and appendices in and to this Indenture unless otherwise indicated. ARTICLE II THE EQUIPMENT NOTES Section 2.01 Form of Equipment Notes. (a) The Equipment Notes and the Trustee's certificate of authentication with respect thereto shall be substantially in the form annexed hereto as Exhibit B. The Equipment Notes may have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have letters, notations, legends or endorsements required by law, stock exchange agreements to which the Company is subject, or usage. Any portion of the text of any Equipment Note may be set forth on the reverse thereof, with an appropriate reference thereto on 3 the face of the Equipment Note. The Company shall approve the form of the Equipment Notes and any notation, legend or endorsement on the Equipment Notes. Each Equipment Note shall be dated the date of its authentication. The terms and provisions contained in the form of the Equipment Notes annexed hereto as Exhibit B shall constitute, and are hereby expressly made, a part of this Indenture. Each of the Company and the Trustee, by its execution and delivery of this Indenture, expressly agrees to the terms and provisions of the Equipment Notes applicable to it and to be bound thereby. The Equipment Notes shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner determined by the officers executing such Equipment Notes, as evidenced by their execution of such Equipment Notes. Section 2.02 Execution, Authentication and Denominations. The Equipment Notes shall be executed by an Officer of the Company authorized to execute Equipment Notes, by facsimile or manual signature, in the name and on behalf of the Company. If an officer whose signature is on an Equipment Note no longer holds that office at the time the Trustee authenticates the Equipment Note, the Equipment Note shall be valid nevertheless. An Equipment Note shall not be valid until the Trustee manually signs the certificate of authentication on the Equipment Note. The signature shall be conclusive evidence that the Equipment Note has been authenticated under this Indenture. At any time and from time to time after the execution of this Indenture, the Trustee shall, upon receipt of a Company Order, authenticate for original issue Equipment Notes in the aggregate principal amount specified in such Company Order. Such Company Order shall specify the amount of Equipment Notes to be authenticated and the date on which the issue of Equipment Notes is to be authenticated. Section 2.03 Registrar and Paying Agent. The Company shall maintain an office or agency where Equipment Notes may be presented for registration of transfer or for exchange (the "Registrar"), an office or agency where Equipment Notes may be presented for payment (the "Paying Agent"), and an office or agency where notices and demands to or upon the Company in respect of the Equipment Notes and this Indenture may be served. The Company shall cause the Registrar to keep a register of the Equipment Notes and of their transfer and exchange (the "Equipment Note Register"). The Company may have one or more additional Paying Agents. The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall give prompt written notice to the Trustee of the name and address of any such Agent and any change in the address of such Agent. If the Company fails to maintain a Registrar, Paying Agent and/or agent for service of notices and demands, the Trustee shall act as such Registrar, Paying Agent and/or agent for service of notices and demands 4 for so long as such failure shall continue. The Company may remove any Agent upon written notice to such Agent and the Trustee; provided that no such removal shall become effective until (i) the acceptance of an appointment by a successor Agent to such Agent as evidenced by an appropriate agency agreement entered into by the Company and such successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i) of this proviso. The Company or any Affiliate of the Company may act as Paying Agent, Registrar, and/or agent for service of notice and demands. The Company shall initially act as the Paying Agent. The Company initially appoints the Trustee as Registrar, Paying Agent and authenticating agent. If, at any time, the Trustee is not the Registrar, the Registrar shall make available to the Trustee on or before each Interest Payment Date and at such other times as the Trustee may reasonably request, the names and addresses of the Holders as they appear in the Equipment Note Register. Section 2.04 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent, if any, other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, or interest on the Equipment Notes (whether such money has been paid to it by the Company or the Guarantor on the Equipment Notes), and that such Paying Agent shall promptly notify the Trustee of any default by the Company (or the Guarantor on the Equipment Notes) in making any such payment. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the Trustee. If the Company or any Subsidiary of the Company or any Affiliate of any of them acts as Paying Agent, it will, on or before each due date of any principal of, premium, if any, or interest on the Equipment Notes, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such principal, premium, if any, or interest so becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and will promptly notify the Trustee of its action or failure to act as required by this Section 2.04. Section 2.05 Transfer and Exchange. The Equipment Notes are issuable only in registered form. A Holder may transfer an Equipment Note by written application to the Registrar stating the name of the proposed transferee and otherwise complying with the terms of this Indenture. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon registration of the transfer by the Registrar in the Equipment Note Register. Prior to the registration of any transfer by a Holder as provided herein, the Company, the Trustee, and any agent of the Company or the Trustee shall treat the Person in whose name the Equipment Note is registered as the owner thereof for all purposes and none of the Company, the Trustee, or any such agent shall be affected by notice to the contrary. When Equipment Notes are presented to the Registrar with a request to register the transfer or to exchange them for an equal principal amount of Equipment Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges in accordance with 5 the terms, conditions and restrictions hereof, the Company shall execute and the Trustee shall authenticate Equipment Notes. No service charge shall be made to any Holder for any registration of transfer or exchange or redemption of the Equipment Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or other similar governmental charge payable upon transfers or exchanges pursuant to Section 2.12 or 8.05). Section 2.06 Replacement Equipment Notes. If (i) a mutilated Equipment Note is surrendered to the Trustee or the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Equipment Note, and (ii) there is delivered to the Company and the Trustee such security or indemnity as may be required by them to hold each of them harmless, then, in the absence of notice to the Company, the Registrar or the Trustee that such Equipment Note has been acquired by a protected purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Equipment Note, a replacement Equipment Note of like tenor and amount; provided, however, that if any such mutilated, destroyed, lost or stolen Equipment Note has become or is about to become due and payable, the Company, in its discretion, may pay such Equipment Note instead of issuing a new Equipment Note in replacement thereof. Upon the issuance of any replacement Equipment Note under this Section, the Company may require the payment by the Holder of such Equipment Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee) connected therewith. Every replacement Equipment Note issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Equipment Note shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Equipment Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Equipment Notes duly issued hereunder. Section 2.07 Outstanding Equipment Notes. Equipment Notes outstanding at any time are all Equipment Notes that have been authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation and those described in this Section 2.07 as not outstanding. If an Equipment Note is replaced pursuant to Section 2.06, it ceases to be outstanding unless and until the Trustee and the Company receive proof reasonably satisfactory to them that the replaced Equipment Note is held by a protected purchaser. An Equipment Note does not cease to be outstanding because the Company or one of its Affiliates holds such Equipment Note; provided, however, that, in determining whether the Holders of the requisite principal amount of the outstanding Equipment Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Equipment Notes owned by the Company or any other obligor upon the Equipment Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, 6 demand, authorization, direction, notice, consent or waiver, only Equipment Notes which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Equipment Notes so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Equipment Notes and that the pledgee is not the Company or any other obligor upon the Equipment Notes or any Affiliate of the Company or of such other obligor. Section 2.08 Cancellation. The Company at any time may deliver to the Trustee for cancellation any Equipment Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever. The Registrar and the Paying Agent shall forward to the Trustee any Equipment Notes surrendered to them for registration of transfer, exchange, purchase or payment. The Trustee shall cancel all Equipment Notes surrendered for registration of transfer, exchange, purchase, payment or cancellation and shall return all such Equipment Notes to the Company. The Company shall not issue Equipment Notes to replace Equipment Notes it has paid in full or delivered to the Trustee for cancellation. Section 2.09 Application of Payments to Principal Amount and Interest. In the case of each Equipment Note, each payment of principal thereof and premium, if any, and interest thereon shall be applied, first, to the payment of accrued but unpaid interest on such Equipment Note then due thereunder (as well as any interest on any overdue principal amount) and (to the extent permitted by law) any overdue premium, if any, any overdue interest and any other overdue amounts thereunder to the date of such payment, second, to the payment of any premium then due thereon, and third, to the payment of the principal amount of such Equipment Note then due thereunder (which, in the case of any partial redemption pursuant to Section 2.12, shall be applied toward the pro rata reduction of all remaining installments of principal on such Equipment Note). Section 2.10 Termination of Interest in Indenture Estate. A Holder shall have no further interest in, or other right with respect to, the Indenture Estate when and if the principal amount of and interest on all Equipment Notes held by such Holder and all other sums payable to such Holder hereunder and under such Equipment Notes shall have been paid in full. Section 2.11 Equally and Ratably Secured. All Equipment Notes at any time outstanding under this Indenture shall be equally and ratably secured hereby without preference, priority or distinction on account of the date or dates, the actual time or times of the issue or maturity of such Equipment Notes so that all Equipment Notes at any time issued and outstanding hereunder shall have the same rights and preferences, and be entitled to the same benefits provided by the Liens created, under and by virtue of this Indenture. Section 2.12 Redemption; Notice of Redemption. (a) The Company may, at its option, on not less than 30 (and no more than 60) days' notice to the Trustee, redeem on any date the outstanding Equipment Notes in whole or in part, at a redemption price equal to the greater of (1) 100% of the principal amount of the Equipment Notes to be redeemed, and (2) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest in respect of the Equipment Notes to be redeemed (not including any portion of those payments of interest accrued as of the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day 7 months) at the Adjusted Treasury Rate plus 25 basis points, plus, in each case, accrued interest to the date of redemption. "Adjusted Treasury Rate" means, with respect to any redemption date, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that redemption date. "Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Equipment Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of those Equipment Notes. "Comparable Treasury Price" means, with respect to any redemption date, (i) the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than three Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so received. "Quotation Agent" means the Reference Treasury Dealer appointed by the Company. "Reference Treasury Dealer" means (1) J.P. Morgan Securities Inc. and its successors, provided, however, that if the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Company shall substitute another Primary Treasury Dealer, and (2) any other Primary Treasury Dealer selected by the Company. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that redemption date. Upon the redemption of any Equipment Notes pursuant to this Section 2.12(a), the Trustee shall, in accordance with Section 11.01(a), release from the Lien of this Indenture the Items of Equipment specified by the Company in a Company Order having an aggregate Fair Value as determined by the Company equal to or less than the product obtained by multiplying the aggregate Fair Value of all Items of Equipment subject to the Lien of this Indenture by a fraction, the numerator of which shall be the aggregate unpaid principal amount of the Equipment Notes so redeemed and the denominator of which shall be the aggregate unpaid principal amount of all Equipment Notes outstanding immediately prior to such redemption. (b) In connection with an Event of Loss (unless the Company shall have elected the option set forth in Section 9.11(a)(i) with respect thereto), the Company shall, on or before the relevant Loss Redemption Date (as defined in Section 9.11(a)), redeem a principal amount of the Equipment Notes equal to the product obtained by multiplying the aggregate 8 unpaid principal amount of all Equipment Notes on the date notice of the Company's election to redeem is given to the Trustee pursuant to Section 9.11(a), by a fraction, the numerator of which shall be the Fair Value of the Equipment with respect to which such Event of Loss occurred and the denominator of which shall be the aggregate Fair Value of all Equipment subject to the Lien hereof immediately prior to the occurrence of such Event of Loss. The redemption price payable upon a redemption pursuant to this Section 2.12(b) shall equal the principal amount of the Equipment Notes to be redeemed as determined pursuant to the immediately preceding sentence, together with accrued and unpaid interest on such principal amount to the date of such redemption but without the payment of any premium. (c) The Trustee shall give prompt notice to the Noteholders of any redemption pursuant to this Section 2.12. (d) The Equipment Notes are not subject to redemption or prepayment except as provided in this Section 2.12 and in Section 3.03 of this Indenture. ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE INDENTURE ESTATE Section 3.01 Payments Prior to Indenture Event of Default. Except as otherwise provided in Section 3.03, any money paid over by the Company to the Trustee for payment on the Equipment Notes shall be distributed by the Trustee as promptly as possible to the holders of the Equipment Notes to pay in full the aggregate amount of the payment or payments of principal, premium, if any, and interest (as well as any interest on overdue principal) then due, such distribution to be made ratably, in the proportion that the amount of such payment or payments then due or so scheduled with respect to each such Equipment Note bears to the aggregate amount of payments then due under all such Equipment Notes. The amount so distributed to a Holder of an Equipment Note shall be applied by such Holder in payment of such Equipment Note in accordance with the terms of Section 2.09. Section 3.02 [Reserved]. Section 3.03 Payments After Indenture Event of Default. (a) All payments received and amounts realized by the Trustee after an Indenture Event of Default shall have occurred and be continuing and after the Equipment Notes shall have been accelerated pursuant to Section 4.02 or the Trustee has elected to foreclose or otherwise enforce its rights under this Indenture (including any amounts realized by the Trustee from the exercise of any remedies pursuant to Article IV), as well as all payments or amounts then held or thereafter received by the Trustee as part of the Indenture Estate while such Indenture Event of Default shall be continuing, shall be distributed forthwith by the Trustee in the following order of priority: first, so much of such payments or amounts as shall be required to pay or reimburse the Trustee for any unpaid fees for its services under this Indenture and any tax, liability, expense (including reasonable attorneys' fees) or other loss incurred by the Trustee (to the extent reimbursable and not previously reimbursed and to the extent reasonably incurred in connection with its duties as 9 Trustee) shall be distributed to the Trustee; second, so much of such payments or amounts as shall be required to reimburse the Holders of the Equipment Notes for payments made by them to the Trustee pursuant to Article V (to the extent not previously reimbursed), shall be distributed to such Holders of the Equipment Notes, without priority of one over the other, in accordance with the amount of the payment or payments made by, or payable to, each such Holder; third, so much of such payments or amounts as shall be required to pay in full the aggregate unpaid principal amount of all Equipment Notes, plus the accrued but unpaid interest thereon to the date of distribution, shall be distributed to the Holders of the Equipment Notes, and in case the aggregate amount so to be distributed shall be insufficient to pay in full the aforesaid amounts, then, ratably, without priority of one over another, in the proportion that the aggregate unpaid principal amount of all Equipment Notes held by each such Holder, plus the accrued but unpaid interest thereon to the date of distribution, bears to the aggregate unpaid principal amount of all Equipment Notes, plus the accrued but unpaid interest thereon to the date of distribution; and fourth, the balance, if any, of such payments or amounts remaining thereafter shall be distributed to, or as directed by, the Company; (b) If an Indenture Event of Default shall have occurred and be continuing, the Trustee shall not make any distribution to the Company but shall hold amounts otherwise distributable to the Company as collateral security for the obligations secured hereby until such time as no Indenture Event of Default shall be continuing hereunder or such amounts are applied pursuant to Section 3.03(a). Section 3.04 Other Payments. Except as otherwise provided in Section 3.03, (a) any payments received by the Trustee for which no provision as to the application thereof is made elsewhere in this Article III, and (b) all payments received and amounts realized by the Trustee with respect to the Items of Equipment to the extent received or realized at any time after payment in full of the principal of and interest and premium, if any, on all Equipment Notes, as well as any other amounts remaining as part of the Indenture Estate after payment in full of the principal of and interest and premium, if any, on all Equipment Notes issued hereunder, shall be distributed forthwith by the Trustee in the order of priority set forth in Section 3.03, except that in the case of any payment described in clause (b) above, such payment shall be distributed omitting clause "third" of such Section 3.03(a). ARTICLE IV REMEDIES OF THE TRUSTEE UPON AN INDENTURE EVENT OF DEFAULT Section 4.01 Indenture Events of Default. The following events shall constitute "Indenture Events of Default" and each such Indenture Event of Default shall be deemed to exist and continue so long as, but only so long as, it shall not have been remedied: 10 (a) default by the Company in making any payment when due of any principal of or premium (if any) on, any Equipment Note; (b) default by the Company in making any payment when due of any interest on any Equipment Note, and the continuance of such default unremedied for 10 Business Days after the same shall have become due and payable; (c) any failure by the Company or the Guarantor to observe or perform in any material respect any covenant or obligation of it, in this Indenture or the Equipment Notes if, but only if, such failure is not remedied within a period of 120 days after there has been given to the Company or the Guarantor, as the case may be, by the Trustee or the Holders of 25% or more in aggregate principal amount of the Equipment Notes then outstanding a written notice specifying such failure and requiring it to be remedied; (d) any representation or warranty made by the Company hereunder, or by any representative of the Company in any document or certificate furnished to the Trustee in connection herewith or pursuant hereto, shall prove at any time to have been incorrect in any material adverse respect as of the date made and such incorrectness shall remain material and unremedied for a period of 120 days after the date on which there has been given to the Company by the Trustee or the Holders of 25% or more in aggregate principal amount of the Equipment Notes then outstanding a written notice specifying such incorrectness; (e) the Guarantee shall cease to be in full force and effect or the Guarantor shall take any action to seek to have the Guarantee declared void or unenforceable; (f) either the Company or the Guarantor shall (i) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate action to authorize any of the foregoing; or (g) an involuntary case or other proceeding shall be commenced against either the Company or the Guarantor seeking liquidation, reorganization or other relief with respect to it or its respective debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 90 days. Section 4.02 Acceleration; Rescission and Annulment. If an Indenture Event of Default (other than as described in Section 4.01(f) or (g)) shall occur and be continuing, the Trustee may, and when instructed by the Holders of at least 25% in aggregate principal amount 11 of the Equipment Notes then outstanding, shall, by written notice to the Company, declare the unpaid principal amount of all Equipment Notes then outstanding to be immediately due and payable, together with all accrued and unpaid interest thereon and all other amounts due thereunder. If an Indenture Event of Default described in Section 4.01(f) or (g) shall have occurred and be continuing, the unpaid principal amount of all Equipment Notes then outstanding, together with all accrued and unpaid interest thereon and all other amounts due thereunder, shall immediately become due and payable, without any notice or action by the Trustee or any Noteholder, to the fullest extent permitted by law. At any time after acceleration and prior to the sale of any of the Indenture Estate pursuant to this Article IV, a Majority in Interest, by written notice to the Company and the Trustee, may rescind and annul such acceleration and thereby annul its consequences if: (i) there has been paid to or deposited with the Trustee an amount sufficient to pay all overdue installments of interest on the Equipment Notes, and the principal of and premium, if any, on any Equipment Notes that have become due otherwise than by such acceleration, (ii) the rescission would not conflict with any judgment or decree, and (iii) all other Indenture Defaults and Indenture Events of Default, other than nonpayment of principal or interest on the Equipment Notes that have become due solely because of such acceleration, have been cured or waived. Section 4.03 Remedies with Respect to Indenture Estate. (a) If an Indenture Event of Default shall have occurred and be continuing, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02, then and in every such case the Trustee shall be entitled to exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to this Article IV and may recover judgment in its own name as Trustee against the Company and Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the Company and all persons claiming under the Company wholly or partly therefrom. (b) The Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given written notice of such sale to the Company at least 30 days prior to the date of such sale or the date on which the Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Trustee or the Holder or Holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the Holders may exercise such right without including the Holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of effecting any sale, assignment, transfer or delivery for enforcement of the Lien of this 12 Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Trustee may consider necessary or appropriate, with full power of substitution, the Company hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Trustee or any purchaser, the Company shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) The Company agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Trustee may take possession of all or any part of the Indenture Estate and, subject to the rights of the lessees under the Leases, may exclude the Company and all persons claiming under any of them wholly or partly therefrom. At the request of the Trustee, the Company shall promptly execute and deliver to the Trustee such instruments of title and other documents as the Trustee may deem necessary or advisable to enable the Trustee or an agent or representative designated by the Trustee, at such time or times and place or places as the Trustee may specify, to obtain possession, subject to the rights of the lessees under the Leases, of all or any part of the Indenture Estate. If the Company shall fail for any reason to execute and deliver such instruments and documents to the Trustee, the Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the Company wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and take possession of and remove the Indenture Estate, subject to the rights of the lessees under the Leases. Upon every such taking of possession, the Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem proper or as it may otherwise be directed to do so by a Majority in Interest. In each such case, and subject to the rights of the lessees under the Leases, the Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the Company relating to the Indenture Estate, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part thereof; and the Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the Company), and all other payments which the Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Trustee, and of all persons properly engaged and employed by the Trustee, including the reasonable expenses of the Trustee. Any action by the Trustee pursuant to this Section 4.03(c) 13 will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Trustee shall have obtained possession of an Item of Equipment, the Trustee shall not be obligated to cause any Person to use or operate such Item of Equipment or cause such Item of Equipment to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such Item of Equipment by any other Person unless (i) the Trustee, as directed by a Majority in Interest, shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to a Majority in Interest to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all liability for loss or damage to such Item of Equipment and for public liability and property damage resulting from use or operation of such Item of Equipment and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Trustee in its discretion to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all such liabilities. (e) If an Indenture Event of Default shall occur and be continuing, the Trustee may proceed to protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of any covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the Indenture Estate or any part thereof, or for the recovery of a judgment for the indebtedness secured hereby, or the enforcement of any other legal or equitable remedy available to a mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice. Section 4.04 Waiver of Existing Defaults. A Majority in Interest by notice to the Trustee on behalf of all Holders of the Equipment Notes may waive any past default hereunder and its consequences, except that the consent of each Holder of an Equipment Note affected thereby shall be required to waive a default (i) in the payment of the principal of, premium, if any, or interest on any Equipment Note or (ii) in respect of a covenant or provision hereof which under Article VIII hereof cannot be modified or amended without the consent of the Holder of each Equipment Note affected. Upon any such waiver, such default shall cease to exist, and any Indenture Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 4.05 Control by Majority. A Majority in Interest may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or 14 exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of the Equipment Notes not joining in the giving of such direction, and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of the Equipment Notes. Section 4.06 Limitation on Suits. A Holder may not pursue any remedy with respect to this Indenture or the Equipment Notes unless: (i) the Holder gives the Trustee written notice of a continuing Indenture Event of Default; (ii) the Holders of at least 25% in aggregate principal amount of outstanding Equipment Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, a Majority in Interest does not give the Trustee a direction that is inconsistent with the request. A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder. Section 4.07 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of an Equipment Note to receive payment of principal of, premium, if any, or interest on such Holder's Equipment Note on or after the respective due dates expressed on such Equipment Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. Section 4.08 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Indenture Event of Default shall impair any such right or remedy or constitute a waiver of any such Indenture Event of Default or an acquiescence therein. Every right and remedy given under this Indenture or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. Section 4.09 Remedies Cumulative. Each and every right, power and remedy herein specifically given to the Trustee or otherwise in this Indenture shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Trustee, and the exercise or the 15 beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the time or thereafter any other right, power or remedy. No delay or omission by the Trustee in the exercise of any right, remedy or power or in the pursuance of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Company or to be an acquiescence therein. Section 4.10 Discontinuance of Proceedings. In case the Trustee shall have proceeded to enforce any right, power or remedy under this Indenture by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in every such case the Company and, the Trustee shall be restored to their former positions and rights hereunder with respect to the Indenture Estate, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been undertaken (but otherwise without prejudice). Section 4.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorney's fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant, provided that the provisions of this Section shall not apply to any suit instituted by any Holder of an Equipment Note. ARTICLE V THE TRUSTEE Section 5.01 Acceptance of Trusts and Duties. The Trustee accepts the trusts hereby created and applicable to it and agrees to perform the same but only upon the terms of this Indenture and agrees to receive and disburse all money received by it constituting part of the Indenture Estate in accordance with the terms hereof. Section 5.02 Certain Duties and Responsibilities. (a) Except during the continuance of an Indenture Event of Default: (i) the Trustee undertakes to perform such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). 16 (b) In case an Indenture Event of Default shall occur and be continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action (or negligent action in the handling of funds), its own grossly negligent failure to act (or negligent failure to action in the handling of funds), or its own willful misconduct, except that: (i) this subsection shall not be construed to limit the effect of subsection (a) of this Section; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of a Majority in Interest relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and (iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. (d) Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 5.03 Notice of Indenture Defaults. If the Trustee shall have knowledge of any Indenture Default or Indenture Event of Default hereunder, the Trustee shall promptly give notice thereof to the Company in accordance with Section 11.10 and to all Holders, as their names and addresses appear in the Equipment Note Register, unless such Indenture Default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Equipment Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders. Section 5.04 Certain Rights of Trustee. Except as otherwise provided in Section 5.02: (a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper 17 or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer's Certificate of the Company; (c) the Trustee may consult with counsel of its choice and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the cost, expenses and liabilities which might be incurred by it in compliance with such request or direction; (e) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document; (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (g) the Trustee shall not be deemed to have notice of any Indenture Default or Indenture Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any such event is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Equipment Notes and this Indenture; and (h) the Trustee may request that the Company deliver an Officer's Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer's Certificate may be signed by any person authorized to sign an Officer's Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. Section 5.05 Not Responsible for Recitals or Issuance of Equipment Notes. The recitals contained herein and in the Equipment Notes, except the certificates of authentication, shall not be taken as the statements of the Trustee, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or the Equipment Notes, except that the Trustee hereby represents and warrants that this Indenture has been executed and delivered by one of its officers who is duly authorized to execute and deliver such document on its behalf. 18 Section 5.06 May Hold Equipment Notes. The Trustee may become the owner or pledgee of Equipment Notes and may otherwise deal with the Company with the same rights it would have if it were not Trustee. Section 5.07 Indenture Supplements. In the event there is delivered to the Trustee for execution an Indenture Supplement or a Memorandum of Trust, as contemplated by Section 9.11, 9.13 or 9.14, the Trustee agrees, subject to Section 8.02, for the benefit of the holders of the Equipment Notes and the Company, to execute and deliver such Indenture Supplement or Memorandum of Trust, as the case may be. Section 5.08 Effect of Replacements. In the event of the substitution of a Replacement Item of Equipment, all provisions of this Indenture relating to the Item of Equipment or Items of Equipment being replaced shall be applicable to such Replacement Item of Equipment with the same force and effect as if such Replacement Item of Equipment was the same Item of Equipment being replaced. Section 5.09 Withholding Taxes. The Trustee, as agent for the Company, shall exclude and withhold from each payment of principal, premium, if any, and interest and other amounts due hereunder or under the Equipment Notes any and all withholding taxes applicable thereto as required by law. The Trustee agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld by it with respect to any amounts payable in respect of the Equipment Notes, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the holders of the Equipment Notes, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each holder of an Equipment Note appropriate documentation showing the payment thereof, together with such additional documentary evidence as such holders may reasonably request from time to time. Section 5.10 No Representations or Warranties as to the Items of Equipment or Documents. THE TRUSTEE NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE (i) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE ITEMS OF EQUIPMENT OR AS TO THE TITLE THERETO, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE ITEMS OF EQUIPMENT WHATSOEVER, or (ii) any representation or warranty as to the validity, legality or enforceability of this Indenture, the Equipment Notes, or any Indenture Supplement or any other document or instrument or as to the correctness of any statement contained in any thereof (except as to the representations and warranties made by the Trustee herein). Section 5.11 No Segregation of Moneys; No Interest; Investments. (a) Subject to Section 5.12(b), no money received by the Trustee hereunder need be segregated in any manner except to the extent required by law, and any such money may be deposited under such general conditions for the holding of trust funds as may be prescribed by law applicable to the Trustee, and, except as otherwise agreed by the Trustee, the Trustee shall not be liable for any interest thereon. 19 (b) Any amounts held by the Trustee pursuant to the express terms of this Indenture and not required to be distributed as herein provided shall be invested and reinvested by the Trustee from time to time in Specified Investments at the written direction and at the risk and expense of the Company, except that in the absence of any such direction or after an Indenture Event of Default shall have occurred and be continuing, such amounts shall be so invested by the Trustee in Specified Investments of the type specified in clause (f) of the definition thereof, except as provided below, and the Trustee shall hold any such Specified Investments until maturity. Any net income or gain realized as a result of any such investments shall be held as part of the Indenture Estate and shall be applied by the Trustee at the same times, on the same conditions and in the same manner as the amounts in respect of which such income or gain was realized are required to be distributed in accordance with the provisions hereof pursuant to which such amounts were required to be held and if no Indenture Event of Default shall have occurred and be continuing any excess shall be paid to the Company upon its request. Any such Specified Investments may be sold or otherwise reduced to cash (without regard to maturity date) by the Trustee whenever necessary to make any application as required by such provision. The Trustee shall have no liability for any loss resulting from any such investment other than by reason of the willful misconduct or negligence of the Trustee. Section 5.12 No Compensation from Holders or Indenture Estate. The Trustee agrees that it shall have no right against the Holders of the Equipment Notes or, except as provided in Sections 3.03 and 4.03, the Indenture Estate, for any fee as compensation for its services hereunder. Section 5.13 Limitation on Duty of Trustee in Respect of Indenture Estate. (a) Except as otherwise provided in this Indenture, the Trustee shall have no duty as to any Indenture Estate in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Indenture Estate. (b) The Trustee shall not be responsible for (i) the existence, genuineness or value of any of the Indenture Estate or for the validity, perfection, priority or enforceability of the Liens in any of the Indenture Estate, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (ii) for the validity or sufficiency of the Indenture Estate or any agreement or assignment contained therein, (iii) for the validity of the title of the Company to the Indenture Estate, (iv) for insuring the Indenture Estate or (v) for the payment of taxes, charges, assessments or Liens upon the Indenture Estate or otherwise as to the maintenance of the Indenture Estate. Section 5.14 No Liability of Trustee. Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable under or in connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the 20 Trustee has been advised of the possibility thereof and regardless of the form of action in which such damages are sought. ARTICLE VI INDEMNIFICATION AND COMPENSATION OF TRUSTEE Section 6.01 Scope of Indemnification. The Company hereby agrees, whether or not any of the transactions contemplated hereby shall be consummated, to assume liability for, and does hereby indemnify, protect, save and keep harmless the Trustee, in each of its capacities hereunder, including in its individual capacity, and its successors, assigns, agents and servants, from and against any and all liabilities (including strict tort liability), obligations, losses, damages, penalties, taxes (excluding any taxes, fees or other charges on, based on, or measured by, any fees or compensation received by the Trustee for services rendered in connection with the transactions contemplated hereby), claims, actions, suits, costs, expenses or disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Indenture Estate or the Trustee (whether or not also indemnified against by any other person under any other document) in any way relating to or arising out of this Indenture, any Indenture Supplement or the Equipment Notes, or the enforcement of any of the terms of any thereof, or in any way relating to or arising out of the manufacture, purchase, acceptance, nonacceptance, rejection, ownership, delivery, lease, sublease, registration, re-registration, possession, use, operation, condition, sale, return or other disposition of the Items of Equipment or any part thereof (including, without limitation, latent and other defects, whether or not discoverable, and any claim for patent, trademark or copyright infringement), or in any way relating to or arising out of the administration of the Indenture Estate or the action or inaction of the Company hereunder, or the Trustee hereunder except only in the case of willful misconduct, bad faith or gross negligence (or negligence in the handling of funds) of the Trustee in the performance of its duties hereunder or the breach of any of its representations and warranties set forth herein. Section 6.02 Compensation. The Company agrees (a) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, wilfull misconduct or bad faith. The Trustee shall have a lien prior to the Equipment Notes as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to 21 Sections 6.01 and 6.02, except with respect to funds held in trust for the benefit of the Holders of particular Equipment Notes. When the Trustee incurs expenses or renders services in connection with an Indenture Event of Default specified in Section 4.01(f) or Section 4.01(g), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law. The provisions of this Section 6.02 shall survive the termination of this Indenture. ARTICLE VII SUCCESSOR TRUSTEES Section 7.01 Resignation of Trustee; Appointment of Successor. (a) The resignation or removal of the Trustee and the appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 7.01. The Trustee or any successor thereto may resign at any time without cause by giving at least 30 days' prior written notice to the Company and the Holders of the Equipment Notes. A Majority in Interest may at any time remove the Trustee without cause upon 60 days prior written notice by an instrument in writing delivered to the Company and the Trustee. In addition, the Company may remove the Trustee if: (i) the Trustee fails to comply with Section 7.01(c), (ii) the Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or public officer takes charge of the Trustee or its property or (iv) the Trustee becomes incapable of acting as provided herein. In the case of the resignation or removal of the Trustee, the Company shall promptly appoint a successor Trustee, provided that a Majority in Interest may appoint, within one year after such resignation or removal, a successor Trustee which may be other than the successor Trustee appointed as provided above, and such successor Trustee appointed as provided above shall be superseded by the successor Trustee so appointed by a Majority in Interest. If a successor Trustee shall not have been appointed and accepted its appointment hereunder within 60 days after the Trustee gives notice of resignation as provided above, the retiring Trustee, the Company or a Majority in Interest may petition any court of competent jurisdiction for the appointment of a successor Trustee. Any successor Trustee so appointed by such court shall immediately and without further act be superseded by any successor Trustee appointed as provided in the proviso to the fifth sentence of this paragraph (a) within one year from the date of the appointment by such court. (b) Any successor Trustee, however appointed, shall execute and deliver to the Company and to the predecessor Trustee an instrument accepting such appointment, and thereupon such successor Trustee, without further act, shall become vested with all the estates, properties, rights, powers, duties and trusts of the predecessor Trustee hereunder in the trusts hereunder applicable to it with like effect as if originally named the Trustee herein; but nevertheless, upon the written request of such successor Trustee, such predecessor Trustee shall 22 execute and deliver an instrument transferring to such Trustee, upon the trusts herein expressed applicable to it, all the estates, properties, rights, powers and trusts of such predecessor Trustee, and such Trustee shall duly assign, transfer, deliver and pay over to such successor Trustee all money or other property then held by such predecessor Trustee hereunder. (c) The Trustee shall be a bank or trust company, organized under the laws of the United States of America or any state thereof, having a combined capital and surplus of at least $50,000,000 (or the obligations and liabilities of which are irrevocably and unconditionally guaranteed by an affiliated company having a combined capital and surplus of at least $50,000,000), if there be such an institution willing, able and legally qualified to perform the duties of the Trustee hereunder upon reasonable or customary terms. (d) Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation to which substantially all the corporate trust business of the Trustee may be transferred, shall, subject to the terms of paragraph (c) of this Section, be the Trustee under this Indenture without further act. Section 7.02 Appointment of Co-Trustee. It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as trustee in such jurisdiction. It is recognized that in case of litigation under this Indenture, and in particular in case of the enforcement thereof on default, or in the case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold title to the properties, in trust, as herein granted or take any action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an individual or institution as a separate or co-trustee, provided that unless an Indenture Event of Default shall have occurred and be continuing, any such appointment of a co-trustee shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. The following provisions of this Section are adopted to these ends. In the event that the Trustee appoints an additional individual or institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee to exercise such powers, rights and remedies, and only to the extent that the Trustee by the laws of any jurisdiction is incapable of exercising such powers, rights and remedies and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of them. Should any instrument in writing from the Company be required by the separate or co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Company; provided, that if an Indenture Event of Default shall have occurred and be continuing, if the Company does not execute any such instrument within fifteen (15) days after request 23 therfor, the Trustees shall be empowered as an attorney-in-fact for the Company to execute any such instrument in the Company's name and stead. In case any separate or co-trustee or a successor to either shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate or co-trustee. Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions: (i) all rights and powers, conferred or imposed upon the Trustee shall be conferred or imposed upon and may be exercised or performed by such separate trustee or co-trustee; and (ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture of this Section. Any separate trustee or co-trustee may at any time appoint the Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successors trustee. Section 7.03 No Liability for Clean-up of Hazardous Materials. In the event that the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Trustee's sole discretion may cause the Trustee to be considered an "owner or operator" under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. ss.9601, et seq., or otherwise cause the Trustee to incur liability under CERCLA or any other federal, state or local law, the Trustee reserves the right to, instead of taking such action, either resign as Trustee or arrange for the transfer of the title or control of the asset to a court appointed receiver. ARTICLE VIII SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS Section 8.01 Supplemental Indentures. (a) Supplemental Indentures Without Consent of Holders. The Company, the Guarantor and the Trustee, at any time and from time to 24 time, without notice to or the consent of any Holders of any Equipment Notes, may enter into one or more indentures supplemental hereto for any of the following purposes: (i) to correct or amplify the description of any property at any time subject to the lien of this Indenture or better to assure, convey and confirm unto the Trustee any property subject or required to be subject to the lien of this Indenture or to subject to the lien of this Indenture any Item of Equipment or Lease in accordance with the provisions of Section 9.11, 9.13 or 9.14; provided, however, that Indenture Supplements entered into for the purpose of subjecting to the lien of this Indenture any Item of Equipment or Lease need only be executed by the Company; or (ii) to evidence (in accordance with Article VII) the succession of a successor Trustee hereunder; or (iii) to add to the covenants of the Company or the Guarantor, for the benefit of the holders of the Equipment Notes, or to surrender any right or power herein conferred upon the Company; or (iv) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising hereunder so long as any such action does not adversely affect the interests of the Holders of the Equipment Notes. (b) Supplemental Indentures with Consent of Majority in Interest. With the written consent of a Majority in Interest, the Company and the Guarantor may, and the Trustee, subject to Section 8.02 hereof, shall, at any time and from time to time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights and obligations of Holders of the Equipment Notes under this Indenture; provided, however, without the consent of each Holder of an Equipment Note affected thereby, no such Supplemental Indenture shall: (i) change the final maturity of the principal of any Equipment Note, or change the dates or amounts of payment of any installment of the principal of or premium, if any, or interest on any Equipment Note, or reduce the principal amount thereof or the premium, if any, or interest thereon, or change to a location outside the United States the place of payment where, or the coin or currency in which, any Equipment Note or the premium, if any, or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment of principal or premium, if any, or interest on or after the date such principal or premium, if any, or interest becomes due and payable; (ii) create any lien with respect to the Indenture Estate ranking prior to, or on a parity with, the security interest created by this Indenture except such as are permitted by this Indenture, or deprive any Holder of an Equipment Note of the benefit of the lien on the Indenture Estate created by this Indenture; 25 (iii) reduce the percentage in principal amount of the Equipment Notes, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture, or of certain defaults hereunder and their consequences provided for in this Indenture; (iv) modify any provisions of this Section 8.01(b), except to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Equipment Note affected thereby; or (v) release the Guarantor from any of its obligations under the Guarantee or this Indenture. Section 8.02 Trustee Protected. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article VIII or Article V is authorized or permitted by this Indenture. If in the opinion of the Trustee any document required to be executed pursuant to the terms of Section 8.01 adversely affects any right, duty, immunity or indemnity in favor of the Trustee under this Indenture, the Trustee may in its discretion decline to execute such document. Section 8.03 Request of Substance, Not Form. It shall not be necessary for the consent of the holders of Equipment Notes under Section 8.01(b) to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Section 8.04 Documents Mailed to Holders. Promptly after the execution by the Trustee of any document entered into pursuant to Section 8.01(b), the Trustee shall mail, by first-class mail, postage prepaid, a conformed copy thereof to each Holder of an Equipment Note at its address in the Equipment Note Register, but the failure of the Trustee to mail such conformed copies shall not impair or affect the validity of such document. Section 8.05 Notation on or Exchange of Equipment Notes. If an amendment, supplement or waiver changes the terms of an Equipment Note, the Trustee may require the Holder to deliver such Equipment Note to the Trustee. The Trustee may place an appropriate notation on the Equipment Note indicating the changed terms and return it to the Holder, and the Trustee may place an appropriate notation on any Equipment Note thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange for such changed Equipment Note shall issue and the Trustee shall authenticate a new Equipment Note that reflects the changed terms. 26 ARTICLE IX COVENANTS OF THE COMPANY Section 9.01 Payment of Equipment Notes. The Company will pay or cause to be paid the principal of, premium, if any, and interest on the Equipment Notes on the dates and in the manner provided in the Equipment Notes. Section 9.02 Maintenance of Corporate Existence. The Company shall at all times maintain its corporate existence, except as otherwise specifically permitted in Section 9.03, and shall do or cause to be done all things necessary to preserve and keep in full force and effect its rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Company determines that the preservation thereof is no longer desirable in the conduct of the business of the Company. Section 9.03 Consolidation, Merger or Sale of Assets of the Company. (a) The Company covenants that it will not merge into or consolidate with any other corporation or sell, convey or otherwise dispose of all or substantially all of its assets to any Person unless (i) either (A) the Company (or the Guarantor) shall be the continuing corporation or (B) the successor corporation (if other than the Company or the Guarantor) shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia, and such corporation shall expressly assume the due and punctual performance and observance of all of the covenants and conditions of this Indenture and each other Operative Document to which the Company is a party to be performed by the Company on the terms set forth herein or therein by supplemental agreements given by such successor corporation to the Trustee; (ii) such successor corporation shall make such filings and recordings as shall be necessary, desirable or otherwise required to evidence such reorganization, consolidation, merger, sale, conveyance or other disposition; (iii) immediately after giving effect to such transaction, no Indenture Default or Indenture Event of Default shall have occurred and be continuing solely as a result of such consolidation, merger, sale, conveyance or other disposition and the Company shall have delivered to the Trustee an Officer's Certificate to such effect; (iv) in the event that the Company is not the surviving corporation, the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that (x) such consolidation, merger, sale, conveyance or other disposition and the assumption agreement described in clause (i)(B) above comply with such clause (and in the case of such certificate, clause (iii) of this Section 9.03(a)), (y) the assumption agreement described in clause (i)(B) above is a legal, valid and binding obligation of such successor corporation, and enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium and other similar laws and equitable principles affecting the enforcement of creditors' rights generally, and (z) all conditions precedent herein provided for relating to such transactions have been complied with. (b) In case of any such merger, consolidation, sale, conveyance or other disposition and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if it had been named herein as the party of the first part. 27 Section 9.04 Annual Statements as to Compliance by the Company. The Company covenants and agrees to deliver to the Trustee on or before a date not more than 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officer's Certificate stating as to the officer signing such certificate, whether or not to the best of such officer's knowledge the Company is in compliance with all of the terms, provisions and conditions hereof, and, if the Company shall be in default, specifying all such defaults and the nature hereof, of which such officer may have knowledge. Section 9.05 Notices of Indenture Defaults . Promptly after becoming aware of the existence of the occurrence of an Indenture Default or an Indenture Event of Default, the Company shall give notice thereof to the Trustee. Section 9.06 Liens. The Company shall not, directly or indirectly, create, incur, assume, permit, or suffer to exist any Lien on or with respect to any Item of Equipment, title thereto or any interest therein or with respect to any Lease, any interest therein except (a) the rights of the Trustee as provided in this Indenture, (b) Liens for Taxes either not yet due and payable or being contested in good faith by appropriate proceedings, (c) materialmen's, mechanics', workmen's, repairmen's, employees' or other like Liens arising in the ordinary course of business for amounts of payment of which is either not yet delinquent or is being contested in good faith by appropriate proceedings, (d) Liens (other than Liens for Taxes) arising out of judgments or awards against the Company with respect to which an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves have been provided or other appropriate provisions have been made and with respect to which there shall have been secured a stay of execution pending such appeal or proceeding for review, (e) the interests of lessees (or permitted sublessees) under the Leases, and (f) salvage or similar rights of insurers under insurance policies maintained pursuant to Section 9.09 hereof. The Company will promptly, at its own expense, take such action as may be necessary by bonding or otherwise duly to discharge any such Lien not excepted above if the same shall arise at any time. Section 9.07 Maintenance; Compliance with Laws; Possession; Identification Marks. (a) Maintenance. The Company, at its own expense, shall maintain, service and keep each Item of Equipment (i) according to prudent industry practice in good working order and in good physical condition for railcars of a similar age and usage, normal wear and tear excepted, (ii) in accordance in all material respects with applicable manufacturer's warranties, and (iii) in the same manner as employed by the Company for similar items of equipment owned or leased by it. (b) Compliance with Laws, Etc. The Company agrees to (i) maintain and service each Item of Equipment in compliance with all Applicable Laws and (ii) make alterations and modifications to each Item of Equipment as are required by all Applicable Laws. (c) Possession. The Company may lease any Item of Equipment to any user incorporated in the United States of America (or any state thereof or the District of Columbia), Mexico or Canada for use upon railroad lines located in the United States of America, Mexico or Canada. No such lease or other relinquishment of possession of any Item of Equipment shall in any way discharge or diminish any of the Company's obligations to the Trustee hereunder or 28 under any other Operative Document for which obligations the Company shall be and remain primarily liable as a principal and not as a surety. (d) Identification Marks. With respect to each Item of Equipment subject to the Lien of this Indenture on the Closing Date, the Company has caused and, on or prior to the date on which an Indenture Supplement is executed and delivered in respect of a Replacement Item of Equipment pursuant to Section 9.11 or 9.14, the Company shall cause each Item of Equipment to be numbered with its road number and reporting mark set forth in the Indenture Supplement describing such Item of Equipment and from and after each such date the Company shall keep and maintain, plainly, distinctly, permanently and conspicuously marked by a plate or stencil printed in contrasting colors upon each side of each Item of Equipment, in letters not less than one inch in height, a legend substantially as follows: "OWNERSHIP SUBJECT TO A SECURITY AGREEMENT FILED WITH THE SURFACE TRANSPORTATION BOARD", with appropriate changes thereof and additions thereto as from time to time may be required by law in order to protect the rights of the Trustee under this Indenture. The Company shall not change the identification number of any Item of Equipment unless and until (i) a statement of new number or numbers to be substituted therefor shall have been filed with the Trustee and duly filed, recorded or deposited, as the case may be, by the Company in all public offices where this Indenture shall have been filed, recorded or deposited and (ii) the Company shall have furnished the Trustee with an opinion of counsel to the effect that such statement has been so filed, recorded or deposited, and that no other filing, recordation, deposit or giving of notice with or to any federal, District of Columbia, state, provincial or local government or agency thereof is necessary to protect the rights of the Trustee in such Item of Equipment. Section 9.08 Replacement of Parts. The Company, at its own cost and expense, shall replace or cause to be replaced all Parts which may from time to time be incorporated or installed in or attached to any Item of Equipment and which may from time to time become worn out, lost, stolen or destroyed. Section 9.09 Insurance. The Company will at all times, as part of an insurance program including appropriate risk retention and self-insurance, and at its own expense, cause to be carried and maintained casualty insurance and public liability insurance with financially sound and reputable insurers of recognized responsibility in respect of the Items of Equipment in such amounts, against such risks and on such terms and conditions as is customarily obtained by the Company in respect of similar equipment owned by it. The Company will forthwith give notice to the Trustee of the cancellation of any such insurance, and, promptly upon obtaining such insurance but in no event later than 30 days after such cancellation, the Company will give to the Trustee a certificate reflecting the replacement of insurance required to be maintained pursuant to this Section 9.09. The Company shall deliver to the Trustee prior to the Closing Date original or duplicate policies or certificates of insurance in form satisfactory to the Trustee evidencing all insurance then required to be maintained by the Company hereunder, and thereafter, within 30 days after the issuance of any additional policies or amendments or supplements to any of such policies, the Company will deliver, or cause to be delivered, the same (or certificates of the insurers under such policies evidencing the same) to the Trustee, and the Company shall, not later than 30 days prior to the expiration of any policy, deliver certificates of the insurers evidencing the replacement thereof. 29 Section 9.10 Age of Equipment. No Item of Equipment shall be more than 25 years old. Section 9.11 Replacement of Items of Equipment upon Event of Loss. (a) Upon the occurrence of an Event of Loss with respect to an Item of Equipment, the Company shall notify the Trustee of such occurrence within 60 days after the Company obtains actual knowledge of such occurrence. Within 60 days after the Company so notifies the Trustee of the occurrence of such Event of Loss, the Company shall give the Trustee notice of its election to perform one of the following options (it being agreed that if the Company shall not have given such notice of election within such 60-day period, the Company shall be deemed to have elected to perform the option set forth in the following clause (ii)). The Company may elect either to: (i) not more than 60 days after notice of its election to the Trustee pursuant to the immediately preceding sentence (such 60th day being the "Loss Replacement Date"), replace the Item of Equipment subject to the Event of Loss with railcars having the same or greater Fair Value; or (ii) on the first Payment Date occurring at least 30 days after notice of its election to the Trustee pursuant to the immediately preceding sentence on which the aggregate principal amount of Equipment Notes to be redeemed pursuant to Section 2.12(b) (together with equipment notes to be redeemed pursuant to Section 2.12(b) of each of the Other Indentures) shall be equal to or greater than $2,000,000 (such Payment Date being the "Loss Redemption Date"), redeem the Equipment Notes in accordance with Section 2.12(b). (b) If the Company elects to substitute a Replacement Item of Equipment pursuant to clause (i) above, the Company shall, at its sole expense, not later than the Loss Replacement Date: (i) deliver to the Trustee, (A) for execution pursuant to Section 5.07, an Indenture Supplement covering the Replacement Item of Equipment and the related Lease, if any, duly executed by the Company and the Guarantor, and a Memorandum of Trust covering the Replacement Item of Equipment, duly executed by the Company and the Guarantor, and (B) a Memorandum of Lease covering the Lease, if any, relating to such Replacement Item of Equipment and cause such executed Memorandum of Trust and Memorandum of Lease, if any, to be duly filed and recorded with the STB pursuant to 49 U.S.C. ss.11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act; (ii) cause a financing statement or statements with respect to the Replacement Item of Equipment and the related Lease, if any, to be filed in such place or places as are necessary in order to evidence and perfect the interests of the Trustee therein; (iii) furnish the Trustee with evidence of compliance with the insurance provisions of Section 9.09 with respect to the Replacement Item of Equipment substantially similar to that originally furnished to the Trustee with respect to the replaced Item of Equipment pursuant to this Indenture; 30 (iv) furnish the Trustee with an Officer's Certificate certifying that, upon consummation of such replacement, no Indenture Default or Indenture Event of Default which arises solely as a result of such replacement will exist hereunder; (v) furnish the Trustee with an Officer's Certificate stating (A) that the Replacement Item of Equipment is free of all Liens (other than Liens permitted under Section 9.06) and has a Fair Value at least equal to the Fair Value of the Item of Equipment so replaced immediately prior to the occurrence of such Event of Loss (which Certificate shall include the basis for determination of such Fair Value), (B) whether such Replacement Item of Equipment is then subject to a lease and, if so, the name of the lessee and such other information as the Trustee may reasonably request, (C) that each Replacement Item of Equipment has been marked in accordance with Section 9.07(d), and (D) that, in the opinion of the signer, all conditions precedent provided for in this Indenture relating to such replacement have been complied with; and (vi) take such other actions and furnish such other certificates and documents as may be necessary or as the Trustee may reasonably require in order to assure that the Replacement Item of Equipment and the related Lease, if any, are duly and properly subjected to the Lien of this Indenture, to the same extent as the Item of Equipment replaced thereby and the related Lease, if any. Section 9.12 Scope of Business Activities Abroad. The Company shall not engage in any business activities within the territory of Mexico which might result in the Company being subject to the Mexican Bankruptcy Law ("Ley de Concursos Mercantiles") without first creating and perfecting a first priority security interest in all Items of Equipment held or owned by the Company within the territory of Mexico and delivering to the Trustee an opinion of Mexican counsel satisfactory to the Trustee as to the perfection and priority of such security interest and evidence of such filings and recordations as may be necessary in the opinion of such counsel to establish and perfect such security interest. Section 9.13 Filings and Opinions. (a) On or prior to the Closing Date the Company will cause the Memorandum of Trust and the Memorandum of Lease, each dated the Closing Date, covering the Items of Equipment and related Leases described in the Indenture Supplement dated the Closing Date to be duly filed and recorded with the STB pursuant to 49 U.S.C. Section 11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act. The Company will furnish to the Trustee evidence of such filing and recordation. (b) Each Indenture Supplement and Memorandum of Lease executed pursuant to Section 9.11(b) or 9.14 shall also cover all Leases not covered by any Memorandum of Lease previously filed as described in Section 9.13(a) or (b). Within 90 days of the end of each fiscal year of the Company, the Company shall deliver to the Trustee an Indenture Supplement for execution pursuant to Section 5.07, and a Memorandum of Lease (covering all Leases, if any, executed by the Company not covered by a Memorandum of Lease that has been filed as described in this sentence or under Section 9.13(a)) duly executed by the Company and cause such Memorandum of Lease to be duly filed and 31 recorded with the STB pursuant to 49 U.S.C. Section 11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transport Act; provided that if any Memorandum of Lease has been so filed pursuant to Section 9.11 or 9.14 during the three-month period immediately following the end of such fiscal year, no filing of any additional Memorandum of Lease or delivery of such an Indenture Supplement will be required pursuant to this paragraph with respect to such fiscal year. The Company shall also cause a financing statement or statements with respect to the Leases covered by such Indenture Supplement to be filed in such place or places as are necessary in order to evidence and perfect the interests of the Trustee therein and shall deliver to the Trustee evidence of such filings. (c) The Company agrees to record and file in accordance with the terms of this Indenture, at its own expense, each Memorandum of Trust and Memorandum of Lease and financing statements (and continuation statements when applicable) with respect to the Indenture Estate now existing or hereafter created meeting the requirements of applicable law in such manner and in such jurisdictions as are necessary to perfect and maintain the perfection of the Lien created hereunder in the Indenture Estate, and to promptly deliver a filed stamped copy of each such financing statement or other evidence of filing or recordation to the Trustee. (d) The Company shall deliver to the Trustee (i) within 90 days after the end of each fiscal year of the Company, an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, as to the due filing of financing statements with the appropriate filing offices and the due filing with the STB pursuant to 49 U.S.C. Section 11301 and the deposit in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act of each Memorandum of Trust and each Memorandum of Lease covering Replacement Items of Equipment subject to the Lien of this Indenture and Leases executed by the Company, in each case, since the later of the Closing Date and the date of the last such Opinion of Counsel delivered to the Trustee and (ii) at any time that the number of Replacement Items of Equipment not covered by such an Opinion of Counsel totals at least 25, an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee, as to the due filing of financing statements with the appropriate filing offices and the due filing with the STB pursuant to 49 U.S.C. Section 11301 and deposit in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act of each Memorandum of Trust and each Memorandum of Lease covering such Replacement Items of Equipment and Leases. (e) If at any time Mexico, one or more states in Mexico, or any of the Canadian provinces establishes a state or provincial or other system for filing and perfecting the security interests of entities such as the Trustee, at the time that the Company takes such action with respect to other equipment similar to the Equipment and also upon the request of the Trustee (given at the request of a Majority in Interest), the Company shall cause any and all of the Operative Agreements to be recorded with or under such system and shall cause all other filings and recordings and all such other action required under such system to be effected and taken, in order to perfect and protect the right, title and interests of the Trustee. Section 9.14 Substitution and Replacement of Equipment. (a) The Company, at its option, may, at any time and from time to time, request the Trustee to release an Item of Equipment from the Lien of this Indenture, and upon receipt of a Company Order requesting such release, the Trustee shall execute and deliver an appropriate instrument furnished by the 32 Company to the Trustee releasing such Item of Equipment from the Lien of this Indenture; provided that no Item of Equipment shall be so released unless, in accordance with this Section, simultaneously there shall be subject to the Lien of this Indenture railcars having the same or greater Fair Value as the Item of Equipment to be so released by the Trustee. (b) At or prior to the time of delivery of any Company Order for release of any Item of Equipment pursuant to this Section, the Company shall take all the actions specified in Section 9.11(b)(i) through (vi) (provided that, except in the case of a substitution resulting from the exercise by a lessee of its purchase option with respect to an Item of Equipment under a Lease, the Officer's Certificate provided pursuant to Section 9.11(b)(iv) shall certify that upon consummation of such replacement, no Indenture Event of Default will exist hereunder) with respect to each Replacement Item of Equipment and the related Lease, if any, and deliver to the Trustee an Officer's Certificate stating the Fair Value, as of the date specified in such Certificate, of each Item of Equipment so to be released by the Trustee (which Certificate shall include the basis for such determination). ARTICLE X GUARANTEE Section 10.01 Guarantee. (a) The Guarantor hereby unconditionally guarantees to each Noteholder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Equipment Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal of, premium, if any, and interest on the Equipment Notes will be promptly paid in full when due, and interest on the overdue principal of, premium, if any, and interest on the Equipment Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Equipment Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor will pay or perform the same immediately. The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. (b) The Guarantor hereby agrees that its obligations hereunder are absolute and unconditional, irrespective of the validity, regularity or enforceability of the Equipment Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Noteholder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The obligations of the Guarantor hereunder shall remain in full force and effect until satisfaction of all obligations guaranteed by it hereunder and, without limiting the generality of the foregoing, to the extent not 33 prohibited by applicable law, shall not be released, discharged or otherwise affected by the existence of any claims, set-off, defense, counterclaim or other rights that the Guarantor may have at any time and from time to time against any Person, whether in connection herewith or with any unrelated transaction. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Guarantee will not be discharged except by complete performance of the obligations contained in the Equipment Notes and this Indenture. (c) If any Noteholder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantor, any amount paid by either to the Trustee or such Noteholder, this Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect. (d) The Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Noteholders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Noteholders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article IV hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such obligations as provided in Article IV hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purpose of this Guarantee. (e) The delivery of any Equipment Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantor. Section 10.02 Consolidation, Merger or Sale of Assets of Guarantor. (a) The Guarantor covenants that it will not merge into or consolidate with any other corporation or sell, convey or otherwise dispose of all or substantially all of its assets to any Person unless (i) either (A) the Guarantor shall be the continuing corporation or (B) the successor corporation (if other than the Guarantor) shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia, and such corporation shall expressly assume the due and punctual performance and observance of all of the covenants and conditions of this Indenture, the Equipment Notes, and the Guarantee to be performed by the Guarantor on the terms set forth herein or therein by supplemental agreements given by such successor corporation to the Guarantor; (ii) such successor corporation shall make such filings and recordings as shall be necessary, desirable or otherwise required to evidence such reorganization, consolidation, merger, sale, conveyance or other disposition; (iii) immediately after giving effect to such transaction, no Indenture Default or Indenture Event of Default shall have occurred and be continuing solely as a result of such consolidation, merger, sale, conveyance or other disposition and the Guarantor shall have delivered to the Trustee an Officer's Certificate to such effect; (iv) in the event that the Guarantor is not the surviving corporation, the Guarantor shall have delivered to the Trustee an Officer's Certificate and an 34 opinion of counsel to such successor corporation, each stating that (x) such consolidation, merger, sale, conveyance or other disposition and the assumption agreement described in clause (i)(B) above comply with such clause (and in the case of such certificate, clause (iii) of this Section 10.02(a)), (y) the assumption agreement described in clause (i)(B) above is a legal, valid and binding obligation of such successor corporation, and enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium and other similar laws and equitable principles affecting the enforcement of creditors' rights generally, and (z) all conditions precedent herein provided for relating to such transactions have been complied with. (b) In case of any such merger, consolidation, sale, conveyance or other disposition and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Guarantor hereunder, with the same effect as if it had been named herein as the party of the first part. ARTICLE XI MISCELLANEOUS Section 11.01 Release of Property. With respect to each Item of Equipment, this Indenture and the trusts created hereby shall terminate without further action and this Indenture shall be of no further force or effect upon the earliest to occur of (i) the release of such Item of Equipment from the Lien of this Indenture by the Trustee pursuant to Section 2.12(a), 9.11 or 9.14, (ii) the payment in full of the principal amount of, interest and any premium on, all Equipment Notes outstanding hereunder and all other sums payable to the Trustee and the Holders of the Equipment Notes hereunder and under such Equipment Notes, and (iii) the date on which all conditions to the defeasance or covenant defeasance of the Equipment Notes under Section 11.02(d) are satisfied. The Trustee shall, upon the written request of the Company, execute and deliver to, and at the expense of, the Person specified by the Company, an appropriate instrument (in due form for recording) furnished by such Person to the Trustee, releasing the appropriate Items of Equipment from the Lien of this Indenture. Section 11.02 Defeasance and Covenant Defeasance. (a) The Company may, at its option evidenced by a resolution of its board of directors (or a duly constituted committee thereof) set forth in an Officer's Certificate, at any time, elect to have either Section 11.02(b) or 11.02(c) be applied to all outstanding Equipment Notes upon compliance with the conditions set forth below in Section 11.02(d). (b) Upon the Company's exercise under Section 11.02(a) of the option applicable to this Section 11.02(b), each of the Company and the Guarantor shall be deemed to have been discharged from its obligations with respect to all outstanding Equipment Notes (including the Guarantee) on the date the conditions set forth in Section 11.02(d) are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Equipment Notes (including the Guarantee), which shall thereafter be deemed to be "outstanding" only for the purposes of Section 11.02(e) and the other Sections of this 35 Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Equipment Notes, the Guarantee and this Indenture (and the Trustee, on demand and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Equipment Notes to receive, solely from the trust fund described in Section 11.02(d), payments in respect of the principal of and premium and interest on, such Equipment Notes when such payments are due, (ii) the Company's obligations with respect to such Equipment Notes under Sections 2.03, 2.04, 2.05 and 2.06, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 11.02. (c) Upon the Company's exercise under Section 11.02(a) of the option applicable to this Section 11.02(c), the Company shall be released from its obligations under any covenant contained in Sections 9.04 through 9.14 and the Guarantor shall be released from its obligation under Section 10.02 with respect to the outstanding Equipment Notes on and after the date the conditions set forth in Section 11.02(d) are satisfied (hereinafter, "covenant defeasance"), and the Equipment Notes shall thereafter be deemed not to be "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder. For this purpose, covenant defeasance means that, with respect to the outstanding Equipment Notes and the Guarantee, the Company and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly , by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute an Indenture Default or an Indenture Event of Default under Section 4.01, but, except as specified above, the remainder of this Indenture and such Equipment Notes shall be unaffected thereby. (d) The following shall be the conditions to application of either Section 11.02(b) or Section 11.02(c): (i) The Company shall have irrevocably deposited with the Trustee as funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Noteholders, (A) money in an amount, (B) U.S. Government Obligations that, through the payment of interest and principal in respect thereof in accordance with their terms, will provide (not later than one Business Day before the due date of any payment) money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay the outstanding principal amount of and interest on all the Equipment Notes on the dates such amounts are due. (ii) In the case of an election under Section 11.01(b), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that there has been a change in tax law since the date hereof or there has been published by the Internal Revenue Service a ruling to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Noteholders and the holders of the Pass Through Certificates will not recognize income, gain or loss for United States Federal income tax purposes as a result 36 of the exercise by the Company of its option under Section 11.02(b) and will be subject to United States Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such option had not been exercised. (iii) In the case of an election under Section 11.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Noteholders and the holders of the Pass Through Certificates will not recognize income, gain or loss for United States Federal income tax purposes as a result of the exercise by the Company of its option under Section 11.02(c) and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such option had not been exercised. (iv) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such defeasance trust does not constitute an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and after the passage of 90 days following such deposit, such defeasance trust will not be subject to Section 547 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law. (v) All other amounts then due and payable hereunder have been paid. (vi) Such deposit will not result in a breach or violation of, or constitute a default or event of default under any other agreement or instrument to which the Company is a party or by which it is bound. (vii) No Indenture Event of Default or Indenture Default shall have occurred and be continuing on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit. (viii) The Company shall have delivered to the Trustee a letter from each of Moody's Investor Service, Inc. and Standard & Poor's Rating Services, a division of the McGraw-Hill Companies, Inc. to the effect that immediately after giving effect to such defeasance or covenant defeasance, as the case may be, its respective rating of the Pass Through Certificates will not be withdrawn, suspended, subject to Creditwatch, or lowered from its rating in effect immediately before such defeasance or covenant defeasance. (ix) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance or covenant defeasance (as the case may be) of this Indenture have been complied with. (e) All monies and U.S. Government Obligations deposited with the Trustee pursuant to Section 11.02(d) shall be held in trust and applied by it, in accordance with the provisions of the Equipment Notes and this Indenture, to the payment to the Noteholders of all sums due and to become due thereon for principal and interest, but such money need not be segregated from other funds except to the extent required by law. 37 (f) The Trustee shall promptly pay or return to the Company upon request of the Company any money or U.S. Government Obligations held by it at any time that are not required for the payment of the amounts described above in Section 11.02(e) on the Equipment Notes for which money or U.S. Government Obligations have been deposited pursuant to Section 11.02(d). (g) If the Trustee is unable to apply any money in accordance with Section 11.02(e) by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company and the Guarantor under this Indenture and the Equipment Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.02(b) or 11.02(c), as the case may be, until such time as the Trustee is permitted to apply all such money in accordance with Section 11.02(e); provided, however, that if the Company makes any payment of principal of or premium or interest on, any Equipment Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Noteholders to receive such payment from the money held by the Trustee. Section 11.03 No Legal Title to Indenture Estate in Holders. No Holder of an Equipment Note shall have legal title to any part of the Indenture Estate. The rights of all Holders of Equipment Notes derive solely from this Indenture (including all supplements to this Indenture) and the Indenture Estate and the Holders of the Equipment Notes derive no interest in the Items of Equipment other than their beneficial interest in the Indenture Estate. No transfer, by operation of law or otherwise, of any Equipment Note or other right, title and interest of any Holder of an Equipment Note in and to the Indenture Estate or hereunder shall operate to terminate this Indenture or the trusts hereunder or entitle any successor or transferee of such Holder to an accounting or to the transfer to it of legal title to any part of the Indenture Estate. Section 11.04 Sale of Items of Equipment by Trustee Is Binding. Any sale or other conveyance of any Items of Equipment by the Trustee made pursuant to the terms of this Indenture shall bind the Holders of the Equipment Notes and the Company and shall be effective to transfer or convey all right, title and interest of the Trustee, the Company and such Holders of the Equipment Notes in and to the Equipment. No purchaser or other grantee shall be required to inquire as to the authorization, necessity, expediency or regularity of such sale or conveyance or as to the application of any sale or other proceeds with respect thereto by the Trustee. Section 11.05 Indenture and Equipment Notes for Benefit of the Company, Guarantor, Trustee and Holders Only. Nothing in this Indenture, whether express or implied, shall be construed to give to any Person other than the Company, the Guarantor, the Trustee and the Holders of the Equipment Notes any legal or equitable right, remedy or claim under or in respect of this Indenture or any Equipment Note. Section 11.06 Further Assurances. The Company and the Guarantor will duly execute and deliver to the Trustee such further documents and assurances and take such further action as may be necessary or as the Trustee may from time to time reasonably request or as may be required by applicable law or regulation in order to effectively carry out the intent and purpose of this Indenture and to establish and protect the rights and remedies created or intended to be created in favor of the Trustee hereunder. 38 Section 11.07 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer's Certificate stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (i) a statement that the individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of such individual, such condition or covenant has been complied with. Section 11.08 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters and any such Person may certify or give an opinion as to such matters in one or several documents. Any Opinion of Counsel stated to be based on the opinion of other counsel shall be accompanied by a copy of such other opinion. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Section 11.09 Acts of Holders. (a) Any direction, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. 39 (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or such other officer and where such execution is by an officer of a corporation or association or a member of a partnership, on behalf of such corporation, association or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner which the Trustee deems sufficient. (c) Any action by the Holder of any Equipment Note shall bind the Holder of every Equipment Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such action is made upon such Equipment Note. Section 11.10 Notices. Unless otherwise expressly specified or permitted by the terms hereof, all notices required or permitted under the terms and provisions hereof shall be in writing, and shall become effective when deposited in the United States mail, with proper postage for first class registered or certified mail prepaid, when delivered personally, or, if promptly confirmed by mail as provided above, when dispatched by telecopy or other written telecommunication, addressed (i) if to the Trustee, at its office at 101 Barclay Street, New York, New York 10286, Attention: Corporate Trust Administration, Telecopy/Telefax: (212)896-7298, (ii) if to any Holder of Equipment Notes, at such address set forth in the Equipment Note Register, (iii) if to the Company or the Guarantor, at 2525 Stemmons Freeway, Dallas Texas 75207, Attention: General Counsel, Telecopy/Telefax: (214) 589-8824, and (iv) if to any of the foregoing Persons, at such other address as such Person shall from time to time designate by written notice to the other parties hereto in accordance with this Section 11.09; provided that notices to the Trustee shall not become effective until actually received by the Trustee. Notwithstanding any other provision hereof, if any payment of principal of, premium, if any, and interest on the Equipment Notes is not received by the Trustee when due, the Trustee shall on the next succeeding Business Day use its reasonable best efforts to give immediate written notice by telecopy or its equivalent or by telephone (confirmed in writing) to each holder of an Equipment Note and the Company. Section 11.11 Severability. Any provision of this Indenture which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or enforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Section 11.12 Separate Counterparts. This Indenture may be executed in any number of counterparts (and each of the parties hereto shall not be required to execute the same counterpart). Each counterpart of this Indenture including a signature page executed by each of the parties hereto shall be an original counterpart of this Indenture, but all of such counterparts together shall constitute one instrument. 40 Section 11.13 Successors and Assigns. All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, the Company and its successors and permitted assigns, the Guarantor and its successors and permitted assigns, and the Trustee and its successors and permitted assigns, and each holder of any Equipment Note, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by any holder of an Equipment Note shall bind the successors and assigns of such holder. Section 11.14 Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. Section 11.15 Governing Law. THIS INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. Section 11.16 No Partnership. All parties to this Indenture specifically disavow any intent to form a partnership or joint venture for U.S. federal income tax purposes or otherwise, and agree not to make any filings or take any positions inconsistent with such intent. 41 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers or attorneys-in-fact, as the case may be, thereunto duly authorized, as of the day and year first above written. THE BANK OF NEW YORK, Trustee By ----------------------------- Name: Title: TRINITY INDUSTRIES LEASING COMPANY, Company By ----------------------------- Name: Title: TRINITY INDUSTRIES, INC., Guarantor By ----------------------------- Name: Title: 42 STATE OF ) ) ss: COUNTY OF ) On this __ day of February, 2002 before me personally appeared ________________, to me personally known, who being by me duly sworn, says that he is the ________________ of The Bank of New York, that the foregoing instrument was signed on February __, 2002 on behalf of said banking corporation by authority of its Board of Directors, and he acknowledged that the execution of the foregoing instrument was the free act and deed of said banking corporation. Sworn to before me this ___ day of February, 2002 (NOTARIAL SEAL) -------------------------- Notary Public My Commission Expires: STATE OF ) ) ss: COUNTY OF ) On this, the __ day of February, 2002, before me, a notary public, personally appeared __________, to me personally known, who being by me duly sworn, says that he is the __________ of Trinity Industries Leasing Company, that the foregoing instrument was executed on February __, 2002 on behalf of said corporation by authority of its Board of Directors, and he acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. Sworn to before me this ___ day of February, 2002, (NOTARIAL SEAL) -------------------------- Notary Public My Commission Expires: STATE OF ) ) ss: COUNTY OF ) On this, the __ day of February, 2002, before me, a notary public, personally appeared __________, to me personally known, who being by me duly sworn, says that he is the __________ of Trinity Industries, Inc. that the foregoing instrument was executed on February __, 2002 on behalf of said corporation by authority of its Board of Directors, and he acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. Sworn to before me this ___ day of February, 2002, (NOTARIAL SEAL) -------------------------- Notary Public My Commission Expires: APPENDIX A DEFINED TERMS The definitions stated herein apply equally to both the singular and plural forms of the terms defined. "Affiliate" of any specified Person shall mean any other Person which directly or indirectly controls, or is controlled by, or is under a common control with, such Person. For the purpose of this definition, the term "control" when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" shall have meanings correlative to the foregoing. "Agent" shall mean any Registrar, Paying Agent, or authenticating agent. "Agreement", "this Agreement", "hereof", "hereby", or any other like term means, unless the context requires otherwise, the agreement in which such term is used, including all annexes, exhibits, schedules, and supplements thereto, as such agreement may be amended, modified or supplemented from time to time. "Applicable Laws" shall mean all rules, regulations and orders issued by the STB, the Department of Transportation and any other government or instrumentality, subdivision or agency thereof having jurisdiction and relating to the registration, operation, maintenance and service of the Items of Equipment. "Bankruptcy Code" shall mean the United States Bankruptcy Reform Act of 1978, as amended from time to time, 11 U.S.C. Section 101 et seq. "Bill of Sale" shall mean, with respect to any Item of Equipment, a full warranty bill of sale executed by the manufacturer thereof in favor of the Company for such Item of Equipment. "Business Day" shall mean any day other than a Saturday, Sunday or a day on which commercial banking institutions are authorized or required by law, regulation or executive order to be closed in New York, New York, Dallas, Texas or the city in which the Trustee maintains its Corporate Trust Office. "Closing Date" shall mean February 15, 2002. "Code" shall mean the Internal Revenue Code of 1986, as in effect on the date hereof or as amended from time to time. App - 1 "Company" shall mean Trinity Industries Leasing Company, a Delaware corporation, and its successors and permitted assigns. "Company Order" shall mean a written request or order signed in the name of the Company by an Officer thereof. "Corporate Trust Office" shall mean, with respect to the Trustee, the Corporate Trust Administration department of such trustee in the city at which at any particular time its corporate trust business shall be principally administered. "Equipment" or "Equipment Group" shall mean collectively, the Items of Equipment subject to the Lien of the Indenture, as described in one or more Indenture Supplements to the Indenture. "Equipment Cost" shall mean, for any Item of Equipment, the gross amount paid by the Company to the manufacturer thereof, including all applicable sales taxes, and delivery charges as invoiced by such manufacturer to the Company. "Equipment Note Register" shall have the meaning provided in Section 2.04. "Equipment Notes" shall have the meaning specified in the first "Whereas" clause hereof. "Event of Loss" shall mean with respect to any property any of the following events with respect to such property: (i) damage or contamination that, in the reasonable judgment of the Company (as evidenced by an Officer's Certificate), makes repair uneconomic or renders such property unfit for commercial use; (ii) theft or disappearance for a period in excess of six months or destruction that constitutes a total loss; (iii) any damage to such property which results in an insurance settlement with respect to such property on the basis of a total loss; (iv) the condemnation or requisition of title to such property by the Government or any other governmental authority; (v) the permanent return of such property to the manufacturer thereof pursuant to any patent indemnity provisions; (vi) as a result of any amendment, addition or other change in Applicable Law or regulations, such property is rendered permanently unfit for commercial use; or (vii) the confiscation, seizure or requisition of use of such property by the Government or any other governmental authority for a period in excess of 365 days. "Fair Value" shall mean, with respect to any Item of Equipment or Replacement Item of Equipment, the Equipment Cost of such Item of Equipment, less 1/25th of such Equipment Cost for each full period of one year elapsed between the date such Equipment was first put into service and the date of the Company's election to effect a replacement of such Equipment. "Government" shall mean the government of any country or state or any political subdivision thereof and any instrumentality, subdivision or agency thereof. "Guarantee" shall mean the guarantee by the Guarantor pursuant to Article X. App - 2 "Guarantor" shall mean Trinity Industries, Inc., a Delaware corporation, and its successors and permitted assigns. "Holder" or "Noteholder" shall mean the registered holder of any Equipment Note. "Indenture" or "Trust Indenture" shall mean that certain [B] Trust Indenture and Security Agreement dated as of February 15, 2002 among the Company, the Guarantor and The Bank of New York, as Trustee, and all annexes, supplements and exhibits thereto, all as amended, supplemented or otherwise modified from time to time, including supplementation by each Indenture Supplement executed and delivered pursuant thereto. "Indenture Default" shall mean any event that after the giving of notice or lapse of time or both would become an Indenture Event of Default. "Indenture Estate" shall have the meaning specified in the Granting Clause of the Indenture. "Indenture Event of Default" shall have the meaning specified in Section 4.01 of the Indenture. "Indenture Supplement" shall mean each Indenture Supplement, substantially in the form of Exhibit A to the Indenture, to be entered into by the Company and the Trustee, covering the Items of Equipment and Leases referenced therein, any amendment to such Indenture Supplement and any subsequent Indenture Supplement executed and delivered in connection with a Replacement Item of Equipment or Lease. "Interest Payment Date" shall mean each semiannual interest payment date on February 15 and August 15 of each year, commencing August 15, 2002. "Item of Equipment" shall mean (i) each railcar listed by the Company's road numbers and reporting marks in an Indenture Supplement executed and delivered under the Indenture; and (ii) any and all Parts incorporated or installed in or attached to such and any and all Parts removed from such railcar. The term "Items of Equipment" also shall mean, as of any date of determination, all Items of Equipment then subject to the Lien of the Indenture. "Lease" shall mean, with respect to each Item of Equipment, the lease agreement between the Company and the lessee thereunder providing for the lease of such Item of Equipment, but shall specifically exclude the provisions of such lease agreement not relating to such Item of Equipment (including, without limitation, any rents payable on any items of equipment not subject to the lien of the Indenture). "Lien" shall mean any mortgage, pledge, charge, security interest, lien, encumbrance, lease, assignment, exercise of rights or claim. "Loss Redemption Date" shall have the meaning provided in Section 9.11(a). "Loss Replacement Date" shall have the meaning provided in Section 9.11(a). App - 3 "Majority in Interest" as of a particular date of determination shall mean with respect to any action or decision of the holders of the Equipment Notes, the holders of more than 50% in aggregate principal unpaid amount of the Equipment Notes, if any, then outstanding which are affected by such decision or action. "Memorandum of Lease" shall mean each Memorandum of Lease, substantially in the form of Exhibit E to the Indenture, covering the Leases referenced therein, and any amendment or other modification thereto, including any modification or substitution therefor required by any Applicable Law. "Memorandum of Trust" shall mean each Memorandum of [B] Trust Indenture and Security Agreement and [B] Trust Indenture Supplement, substantially in the form of Exhibit D to the Indenture covering the Items of Equipment referenced therein, and any amendment or other modification thereto, including any modification or substitution therefor required by any Applicable Law. "Offering Memorandum" shall mean the Offering Memorandum relating to the offering of the Pass Through Certificates. "Officer" shall mean, with respect to the Company or the Guarantor, the Chairman of the Board, the Vice Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, a Vice President, the Treasurer or the Secretary of the Company or the Guarantor, as the case may be. "Officer's Certificate" shall mean a certificate signed (i) in the case of a corporation by the Chairman of the Board, the Vice Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of such corporation, and (ii) in the case of a commercial bank or trust company, the Chairman or Vice Chairman of the Executive Committee or the Treasurer, any Trust Officer, any Vice President, any Executive or Senior or Second or Assistant Vice President, or any other officer or assistant officer customarily performing the functions similar to those performed by the persons who at the time shall be such officers, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. "Operative Documents" shall mean each of the Indenture, each Indenture Supplement and each Bill of Sale. "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be (a) an attorney employed by the Company or the Guarantor, or (b) such other counsel designated by the Company, whether or not such counsel is an employee of the Company, and who shall be acceptable to the Trustee. "Other Indentures" shall mean the [A] Trust Indenture and Security Agreement and the [C] Trust Indenture and Security Agreement, each dated the date of the Indenture and among the Company, the Guarantor and the Trustee. App - 4 "Part" or "Parts" shall mean all appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment of whatever nature that at any time of determination are incorporated or installed in or attached to an Item of Equipment. "Pass Through Certificates" shall mean the Trinity Industries Leasing Company 2002-1 Pass Through Trust Pass Through Certificates, Series 2002-1. "Paying Agent" shall have the meaning provided in Section 2.04. "Payment Date" shall mean each February 15 and August 15 of each year commencing August 15, 2002. "Permitted Liens" shall mean any Lien of the type described in clauses (a) through (f) of Section 9.06 of the Indenture. "Person" shall mean any individual, partnership, corporation, joint venture, limited liability company, limited liability partnership, trust, business trust, association, joint stock company, trust, unincorporated organization, or a government or any agency, instrumentality or political subdivision thereof. "Registrar" shall have the meaning provided in Section 2.04. "Replacement Item of Equipment" shall mean a railcar which shall have been subjected to the Lien of the Indenture pursuant to Section 9.11 or 9.14 of the Indenture, together with all Parts relating thereto. "Responsible Officer", when used with respect to the Trustee, shall mean any officer of the Trustee with direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. "Securities Act" shall mean the Securities Act of 1933, as amended. "Specified Investments" shall mean (a) direct obligations of the United States of America and agencies thereof for which the full faith and credit of the United States is pledged, (b) obligations fully guaranteed by the United States of America, (c) certificates of deposit issued by, or bankers' acceptances of, or time deposits with, any bank, trust company or national banking association incorporated or doing business under the laws of the United States of America or one of the States thereof having combined capital and surplus and retained earnings of at least five hundred million dollars ($500,000,000) (including the Trustee if such conditions are met), (d) commercial paper of companies (which may include the Company), banks, trust companies or national banking associations incorporated or doing business under the laws of the United States of America or one of the States thereof and in each case having a rating assigned to such commercial paper by Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies Inc. or Moody's Investors Service, Inc. or, if neither such organization shall rate such commercial paper at any time, by any nationally recognized rating organization in the United States of America) equal to the highest rating assigned by such organization, (e) purchase agreements with any financial institution having a combined capital and surplus of at least seven App - 5 hundred and fifty million dollars ($750,000,000) fully collateralized by obligations of the type described in clauses (a) through (d) above and (f) money market funds having a rating in the highest investment category granted thereby by a recognized credit rating agency at the time of acquisition, including any fund for which the Trustee or an Affiliate of the Trustee serves as an investment advisor, administrator, shareholder servicing agent, custodian or subcustodian, notwithstanding that (i) the Trustee or an Affiliate of the Trustee charges and collects fees and expenses from such funds for services rendered (provided that such charges, fees and expenses are on terms consistent with terms negotiated at arm's length) and (ii) the Trustee charges and collects fees and expenses for services rendered pursuant to the Indenture; provided that if all of the above investments are unavailable, the entire amount to be invested may be used to purchase Federal Funds from an entity described in (c) above; and provided further that no investment shall be eligible as a "Specified Investment" unless the final maturity or date of return of such investment is 91 days or less from the date of purchase thereof. "STB" shall mean the Surface Transportation Board of the United States Department of Transportation and any agency or instrumentality of the United States government succeeding to its functions. "Taxes" shall mean any license, registration and filing fees and all taxes, withholdings, assessments, levies, imposts, duties or charges of any nature whatsoever, together with any penalties, fines or interest thereon or other additions thereto imposed, withheld, levied or assessed by any country or any taxing authority or governmental subdivision thereof or therein or by any international authority. "Trustee" shall have the meaning provided in the first paragraph of the Indenture. "U.S. Government Obligations" shall mean securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the Equipment Notes, and shall also include depository receipts issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt. App - 6 EXHIBIT A to [B] Trust Indenture and Security Agreement FORM OF TRUST INDENTURE SUPPLEMENT NO. ____ This INDENTURE SUPPLEMENT No. _____, dated _____________________ (this "Indenture Supplement"), by and among TRINITY INDUSTRIES LEASING COMPANY, a Delaware corporation (the "Company"), TRINITY INDUSTRIES, INC., a Delaware corporation (the "Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the "Trustee"); WITNESSETH: WHEREAS, the [B] Trust Indenture and Security Agreement, dated as of February __, 2002 (as supplemented or modified from time to time, the "Indenture"), by and among the Company, the Guarantor and the Trustee, provides for the execution and delivery of Indenture Supplements thereto substantially in the form hereof which shall particularly describe the Items of Equipment and Leases, and shall specifically mortgage the Items of Equipment and assign the Leases to the Trustee; and WHEREAS, the Indenture relates to the Items of Equipment and the Leases relating to such Items of Equipment, all as described on Schedule 1 attached hereto and made a part hereof, and a counterpart of the Indenture is attached to and made a part of this Indenture Supplement; NOW, THEREFORE, in order to secure the prompt payment of the principal of, and premium, if any, and interest on all of the Equipment Notes from time to time outstanding under the Indenture and the performance and observance by the Company of all the agreements, covenants and provisions in the Indenture and in the Equipment Notes for the benefit of the holders of the Equipment Notes, subject to the terms and conditions of the Indenture, and in consideration of the premises and of the covenants contained in the Indenture and of the acceptance of the Equipment Notes by the holders thereof, and of the sum of $1.00 paid to the Company by the Trustee at or before the delivery hereof, the receipt whereof is hereby acknowledged, the Company, in accordance with the Granting Clause of the Indenture, has sold, assigned, transferred, pledged and confirmed, and does hereby sell, assign, transfer, pledge and confirm, the property comprising the Items of Equipment and the Leases described in Schedule 1 attached hereto and made a part hereof to the Trustee, its successors and assigns, in the trust created by the Indenture for the benefit of the holders from time to time of the Equipment Notes. To have and to hold all and singular the aforesaid property unto the Trustee, its successors and assigns, in trust for the benefit and security of the holders from time to time of the Equipment Notes and for the uses and purposes and subject to the terms and provisions set forth in the Indenture. A-1 This Indenture Supplement shall be construed as supplemental to the Indenture and shall form a part thereof, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed. This Indenture Supplement is being delivered in the State of New York. This Indenture Supplement may be executed by the Company and the Trustee in separate counterparts, each of which when so executed and delivered is an original, but all such counterparts shall together constitute but one and the same Supplement. AND FURTHER, the Company hereby acknowledges that the Items of Equipment and the Leases referred to in Schedule 1 attached hereto and made a part hereof have been delivered to the Company and are included in the property of the Company, subject to the pledge or mortgage thereof under the Indenture. IN WITNESS WHEREOF, each of the Company and the Guarantor has caused this Indenture Supplement to be duly executed by one of its duly authorized officers, as of the day and year first above written. TRINITY INDUSTRIES LEASING COMPANY By -------------------------------- Name: Title: TRINITY INDUSTRIES, INC. By -------------------------------- Name: Title: Acknowledged: THE BANK OF NEW YORK, as Trustee By -------------------------------- Name: Title: Authorized Signatory A-2 SCHEDULE 1 to EXHIBIT A to [B] Trust Indenture and Security Agreement ITEMS OF EQUIPMENT [insert description of the Items of Equipment, including the Company's respective road numbers and reporting marks, and identification of the Leases] A-3 EXHIBIT B to [B] Trust Indenture and Security Agreement FORM OF EQUIPMENT NOTE THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED FOR SALE OR SOLD UNLESS EITHER REGISTERED UNDER THE SECURITIES ACT AND SUCH APPLICABLE STATE OR OTHER LAWS OR EXEMPTIONS FROM SUCH REGISTRATION REQUIREMENTS ARE AVAILABLE. TRINITY INDUSTRIES LEASING COMPANY 7.755% EQUIPMENT NOTE No. Date: ------ $ Maturity Date: --------- TRINITY INDUSTRIES LEASING COMPANY (herein called the "Company") hereby promises to pay to ___________________ or registered assigns, the principal sum of $_______ (_______ dollars) in lawful currency of the United States of America, together with interest on the amount of said principal sum remaining unpaid from time to time from the date hereof until payment in full hereof is made, at the rate of 7.755% per annum (computed on the basis of a 360-day year of twelve 30-day months). Interest on such principal sum shall be due and payable on each February 15 and August 15 (each, a "Payment Date"), and the unpaid principal amount hereof shall be due on the Maturity Date specified above. Interest on any overdue principal, premium or interest (to the extent lawful) shall be paid from the due date thereof at the rate of interest applicable to this Equipment Note, payable on demand. Payments of interest on this Equipment Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Equipment Note, and any premium, shall be made in immediately available funds by wire transfer to the Person whose name appears on the Equipment Note Register as of the close of business on the 15th day preceding such Payment Date. Each such payment shall be made on the date such payment is due and, except for the last payment of principal hereof, without any presentment or surrender of this Equipment Note. Whenever the date scheduled for any payment to be made hereunder or under the Indenture shall not be a Business Day, then such payment need not be made on such scheduled date but may be made on the next succeeding Business Day with the same force and effect as if made on such scheduled date and (provided such payment is made on such next succeeding Business Day) no additional interest shall accrue on the amount of such payment from and after such scheduled date to the time of such payment on such next succeeding Business Day. B-1 Each holder hereof, by its acceptance of this Equipment Note, agrees that each payment received by it hereunder shall be applied, first, to the payment of accrued but unpaid interest on this Equipment Note then due (as well as any interest on any overdue principal amount) and (to the extent permitted by law) any overdue premium, if any, any overdue interest and any other overdue amount hereunder to the date of payment, second, to the payment of any premium then due, and third, to the payment of the unpaid principal amount of this Equipment Note then due. Furthermore, each holder hereof, by its acceptance of this Equipment Note, and the Company hereby agree to treat this Equipment Note as indebtedness for U.S. federal income tax purposes and agree not to file any tax return or statement inconsistent with that treatment. This Equipment Note is one of the 7.755% Equipment Notes referred to in the [B] Trust Indenture and Security Agreement dated as of February 15, 2002 among the Company, Trinity Industries, Inc., as guarantor, and The Bank of New York, as trustee (as supplemented or modified from time to time, the "Indenture") which have been or are to be issued by the Company pursuant to the terms of the Indenture. The Indenture Estate is held by the Trustee as security for the Equipment Notes. Reference is hereby made to the Indenture for a statement of the rights of the holder of, and the nature and extent of the security for, this Equipment Note, as well as for a statement of the terms and conditions of the trusts created by the Indenture, to all of which terms and conditions in the Indenture each holder hereof agrees by its acceptance of this Equipment Note. This Equipment Note is not subject to redemption or prepayment except as provided in Section 2.12 of the Indenture. The holder hereof, by its acceptance of this Equipment Note, agrees to be bound by said provisions. This Equipment Note is entitled to the benefits of the Guarantee provided in Article X of the Indenture. This Equipment Note is a registered Equipment Note and is transferable, as provided in the Indenture, only upon surrender of this Equipment Note for registration of transfer duly endorsed by, or accompanied by a written statement of transfer duly executed by, the registered holder hereof or his attorney duly authorized in writing. Prior to the due presentation for registration of transfer of this Equipment Note, the Company and the Trustee shall deem and treat the registered holder of this Equipment Note as the absolute owner and holder hereof for the purpose of receiving payment of all amounts payable with respect hereto and for all other purposes and shall not be affected by any notice to the contrary. This Equipment Note shall be governed by the laws of the State of New York. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Equipment Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. B-2 IN WITNESS WHEREOF, the Company has caused this 7.755% Equipment Note to be executed by one of its authorized officers as of the date hereof. TRINITY INDUSTRIES LEASING COMPANY By ------------------------------- Name: Title: B-3 [FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION] This is one of the 7.755% Equipment Notes referred to in the within-mentioned Indenture. THE BANK OF NEW YORK, as Trustee By -------------------------------- Authorized Signatory B-4 [FORM OF TRANSFER NOTICE] FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto Insert Taxpayer Identification No. - -------------------------------------------------------------------------------- Please print or typewrite name and address including zip code of assignee - -------------------------------------------------------------------------------- the within Equipment Note and all rights thereunder, hereby irrevocably constituting and appointing ______________________________________ attorney to transfer said Equipment Note on the books of the Company with full power of substitution in the premises. B-5 EXHIBIT C to [B] Trust Indenture and Security Agreement [Letterhead of the Company] [Letterhead of the Trustee] [Date] [Lessee Name and Address] Ladies and Gentlemen: We hereby notify you that pursuant to the [B] Trust Indenture and Security Agreement dated as of February 15, 2002, as supplemented from time to time (the "Indenture"), among Trinity Industries Leasing Company (the "Company"), Trinity Industries, Inc. and The Bank of New York, as Trustee, the Company has assigned to the Trustee its rights under the lease with you dated ______ (the "Lease") relating to the following certain railcars [insert road numbers and reporting marks of railcars subject to the Lien of the Indenture which are covered by the Lease] (the "Railcars"), including the right to receive amounts payable to the Company under the Lease in respect of the Railcars. The Indenture provides that upon the occurrence of an Indenture Event of Default (as defined in the Indenture), this notice will be given to each lessee under a lease assigned to the Trustee under the Indenture. This notice is being given pursuant to Section 4.03(f) of the Indenture in accordance with Section 9-406 of the Uniform Commercial Code. You are hereby directed to remit all payments under the Lease in respect of the Railcars to the Trustee to the account specified below. On and after the date of your receipt of this notice you may discharge your obligation under the Lease in respect of the Railcars only by making payment to the Trustee. Any payment to the Company or any party other than the Trustee will not be effective to discharge your obligation under the Lease in respect of the Railcars. If you have any questions regarding this matter, please contact the Trustee at the address set forth below. [insert notice and account information for Trustee] Very truly yours, [Insert name of Trustee] By: ----------------------------- Name: Title: C-1 EXHIBIT D to [B] Trust Indenture and Security Agreement FORM OF MEMORANDUM OF TRUST MEMORANDUM OF [B] TRUST INDENTURE AND SECURITY AGREEMENT AND [B] TRUST INDENTURE SUPPLEMENT NO. _ This Memorandum of [B] Trust Indenture and Security Agreement and [B] Trust Indenture Supplement No. __ (this "Memorandum") is made and entered into by and among Trinity Industries Leasing Company, a Delaware corporation (the "Company"), Trinity Industries, Inc., a Delaware corporation (the "Guarantor"), and The Bank of New York, as Trustee under the Security Agreement (as defined below) (hereinafter referred to as "Trustee") respecting that certain [B] Trust Indenture and Security Agreement dated as of February ____, 2002, among the Company, the Guarantor and the Trustee (the "Security Agreement") and the [B] Trust Indenture Supplement No. __ dated as of ______, among the Company, the Guarantor and the Trustee. Pursuant to the provisions of the Security Agreement, the Company, the Guarantor and Trustee hereby affirm and acknowledge that: 1. The Company has agreed to execute and deliver to the Trustee an equipment note and the Trustee has agreed to accept such an equipment note from the Company and, as security therefor, grant the Trustee a first priority security interest in (i) certain railroad equipment bearing reporting marks and road numbers as listed on Exhibit A attached hereto and (ii) certain leases with respect to such equipment identified by the lessee numbers and rider numbers as listed on Exhibit B attached hereto, subject to the terms defined in the Security Agreement. 2. This Memorandum is prepared only for the public record and is being recorded with the Surface Transportation Board pursuant to 49 U.S.C. Section 11301(a) and the Registrar General of Canada. D-1 IN WITNESS WHEREOF, each of the parties hereto, pursuant to due corporate authority, has caused this Memorandum to be duly executed in its corporate name by its officers, thereunto duly authorized, as of ____________. COMPANY: TRUSTEE: TRINITY INDUSTRIES LEASING COMPANY THE BANK OF NEW YORK By: By: -------------------------------- -------------------------------- Name: Name: ------------------------------ ------------------------------ Title: Title: ----------------------------- ----------------------------- GUARANTOR: TRINITY INDUSTRIES, INC. By: -------------------------------- Name: ------------------------------ Title: ----------------------------- D-2 STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of The Bank of New York, that said instrument was signed on behalf of said corporation, not in its individual capacity, but solely as trustee under the Security Agreement by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. ------------------------- Notary Public My Commission Expires: STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of Trinity Industries Leasing Company, that said instrument was signed on behalf of said corporation by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. ------------------------- Notary Public My Commission Expires: STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of Trinity Industries, Inc., that said instrument was signed on behalf of said corporation by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. ------------------------- Notary Public My Commission Expires: EXHIBIT A EXHIBIT B EXHIBIT E to [B] Trust Indenture and Security Agreement FORM OF MEMORANDUM OF LEASE MEMORANDUM OF LEASE This Memorandum of Lease (this "Memorandum") is made and executed as of _____, ____ by Trinity Industries Leasing Company, a Delaware corporation (the "Lessor"), with reference to the following: 1. Lessor is the owner of certain railroad equipment bearing reporting marks and road numbers as listed on Exhibit A attached hereto (the "Equipment") and has leased the Equipment to certain lessees pursuant to the leases identified by the lessee numbers and rider numbers as listed on Exhibit B attached hereto (the "Leases"). 2. This Memorandum is prepared only for the public record and is being recorded with the Surface Transportation Board pursuant to 49 U.S.C. 11301(a) and the Registrar General of Canada. [signature page to follow] E-1 IN WITNESS WHEREOF, the undersigned has caused this Memorandum to be executed by a duly authorized officer as of the day and year first above written. TRINITY INDUSTRIES LEASING COMPANY By: ----------------------------------- Name: --------------------------------- Title: -------------------------------- E-2 STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of Trinity Industries Leasing Company, that said instrument was signed on behalf of said corporation by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. ------------------------- Notary Public My Commission Expires: EXHIBIT A EXHIBIT B EX-4.4 6 d94365ex4-4.txt [C] TRUST INDENTURE AND SECURITY AGREEMENT EXHIBIT 4.4 ================================================================================ [C] TRUST INDENTURE AND SECURITY AGREEMENT Dated as of February 15, 2002 among TRINITY INDUSTRIES LEASING COMPANY and TRINITY INDUSTRIES, INC. and THE BANK OF NEW YORK, Trustee ================================================================================ TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS Section 1.01 Certain Definitions.........................................................................3 ARTICLE II THE EQUIPMENT NOTES Section 2.01 Form of Equipment Notes.....................................................................3 Section 2.02 Execution, Authentication and Denominations.................................................4 Section 2.03 Registrar and Paying Agent..................................................................4 Section 2.04 Paying Agent to Hold Money in Trust.........................................................5 Section 2.05 Transfer and Exchange.......................................................................5 Section 2.06 Replacement Equipment Notes.................................................................6 Section 2.07 Outstanding Equipment Notes.................................................................6 Section 2.08 Cancellation................................................................................7 Section 2.09 Application of Payments to Principal Amount and Interest....................................7 Section 2.10 Termination of Interest in Indenture Estate.................................................7 Section 2.11 Equally and Ratably Secured.................................................................7 Section 2.12 Redemption; Notice of Redemption............................................................7 ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE INDENTURE ESTATE Section 3.01 Payments Prior to Indenture Event of Default................................................9 Section 3.02 [Reserved]..................................................................................9 Section 3.03 Payments After Indenture Event of Default...................................................9 Section 3.04 Other Payments.............................................................................10 ARTICLE IV REMEDIES OF THE TRUSTEE UPON AN INDENTURE EVENT OF DEFAULT Section 4.01 Indenture Events of Default................................................................10 Section 4.02 Acceleration; Rescission and Annulment.....................................................11 Section 4.03 Remedies with Respect to Indenture Estate..................................................12 Section 4.04 Waiver of Existing Defaults................................................................14 Section 4.05 Control by Majority........................................................................14
i Section 4.06 Limitation on Suits........................................................................15 Section 4.07 Rights of Holders to Receive Payment.......................................................15 Section 4.08 Delay or Omission Not Waiver...............................................................15 Section 4.09 Remedies Cumulative........................................................................15 Section 4.10 Discontinuance of Proceedings..............................................................16 Section 4.11 Undertaking for Costs......................................................................16 ARTICLE V THE TRUSTEE Section 5.01 Acceptance of Trusts and Duties............................................................16 Section 5.02 Certain Duties and Responsibilities........................................................16 Section 5.03 Notice of Indenture Defaults...............................................................17 Section 5.04 Certain Rights of Trustee..................................................................17 Section 5.05 Not Responsible for Recitals or Issuance of Equipment Notes................................18 Section 5.06 May Hold Equipment Notes...................................................................19 Section 5.07 Indenture Supplements......................................................................19 Section 5.08 Effect of Replacements.....................................................................19 Section 5.09 Withholding Taxes..........................................................................19 Section 5.10 No Representations or Warranties as to the Items of Equipment or Documents.................19 Section 5.11 No Segregation of Moneys; No Interest; Investments.........................................19 Section 5.12 No Compensation from Holders or Indenture Estate...........................................20 Section 5.13 Limitation on Duty of Trustee in Respect of Indenture Estate...............................20 Section 5.14 No Liability of Trustee....................................................................20 ARTICLE VI INDEMNIFICATION AND COMPENSATION OF TRUSTEE Section 6.01 Scope of Indemnification...................................................................21 Section 6.02 Compensation...............................................................................21 ARTICLE VII SUCCESSOR TRUSTEES Section 7.01 Resignation of Trustee; Appointment of Successor...........................................22 Section 7.02 Appointment of Co-Trustee..................................................................23 Section 7.03 No Liability for Clean-up of Hazardous Materials...........................................24 ARTICLE VIII SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS Section 8.01 Supplemental Indentures....................................................................24
ii Section 8.02 Trustee Protected..........................................................................26 Section 8.03 Request of Substance, Not Form.............................................................26 Section 8.04 Documents Mailed to Holders................................................................26 Section 8.05 Notation on or Exchange of Equipment Notes.................................................26 ARTICLE IX COVENANTS OF THE COMPANY Section 9.01 Payment of Equipment Notes.................................................................27 Section 9.02 Maintenance of Corporate Existence.........................................................27 Section 9.03 Consolidation, Merger or Sale of Assets of the Company.....................................27 Section 9.04 Annual Statements as to Compliance by the Company..........................................28 Section 9.05 Notices of Indenture Defaults..............................................................28 Section 9.06 Liens......................................................................................28 Section 9.07 Maintenance; Compliance with Laws; Possession; Identification Marks........................28 Section 9.08 Replacement of Parts.......................................................................29 Section 9.09 Insurance..................................................................................29 Section 9.10 Age of Equipment...........................................................................30 Section 9.11 Replacement of Items of Equipment upon Event of Loss.......................................30 Section 9.12 Scope of Business Activities Abroad........................................................31 Section 9.13 Filings and Opinions.......................................................................31 Section 9.14 Substitution and Replacement of Equipment..................................................32 ARTICLE X GUARANTEE Section 10.01 Guarantee..................................................................................33 Section 10.02 Consolidation, Merger or Sale of Assets of Guarantor.......................................34 ARTICLE XI MISCELLANEOUS Section 11.01 Release of Property........................................................................35 Section 11.02 Defeasance and Covenant Defeasance.........................................................35 Section 11.03 No Legal Title to Indenture Estate in Holders..............................................38 Section 11.04 Sale of Items of Equipment by Trustee Is Binding...........................................38 Section 11.05 Indenture and Equipment Notes for Benefit of the Company, Guarantor, Trustee and Holders Only..................................................................................38 Section 11.06 Further Assurances.........................................................................38 Section 11.07 Compliance Certificates and Opinions.......................................................39 Section 11.08 Form of Documents Delivered to Trustee.....................................................39 Section 11.09 Acts of Holders............................................................................39 Section 11.10 Notices....................................................................................40 Section 11.11 Severability...............................................................................40
iii Section 11.12 Separate Counterparts......................................................................40 Section 11.13 Successors and Assigns.....................................................................41 Section 11.14 Headings...................................................................................41 Section 11.15 Governing Law..............................................................................41 Section 11.16 No Partnership.............................................................................41
EXHIBIT A - Form of Trust Indenture Supplements EXHIBIT B - Form of Equipment Notes EXHIBIT C - Form of Notice to Lessees EXHIBIT D - Form of Memorandum of Trust EXHIBIT E - Form of Memorandum of Lease APPENDIX A - Definitions iv [C] TRUST INDENTURE AND SECURITY AGREEMENT This [C] TRUST INDENTURE AND SECURITY AGREEMENT, dated as of February 15, 2002 (this "Indenture"), by and among Trinity Industries Leasing Company, a Delaware corporation (the "Company"), Trinity Industries, Inc. a Delaware corporation (the "Guarantor"), and The Bank of New York, a New York banking corporation, as Trustee hereunder, and any successor appointed in accordance with the terms hereof (the "Trustee"); WITNESSETH: WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of the 7.755% Equipment Notes (the "Equipment Notes") issuable as provided in this Indenture; WHEREAS, the Company and the Guarantor desire by this Indenture, among other things, to provide for (i) the issuance by the Company of the Equipment Notes, (ii) the guarantee by the Guarantor of the Company's obligations in respect of the Equipment Notes and under this Indenture, and (iii) the assignment, mortgage and pledge by the Company to the Trustee, as part of the Indenture Estate hereunder, among other things, of, and the grant of a security interest in, all of the Company's right, title and interest in and to the Items of Equipment, the Leases and the proceeds thereof, in accordance with the terms hereof, in trust, as security for, among other things, the Company's obligations to the holders of the Equipment Notes for the equal and ratable benefit of such holders; WHEREAS, all things have been done to make the Equipment Notes, when executed by the Company and authenticated and delivered by the Trustee hereunder, the valid, binding and enforceable obligations of the Company; and WHEREAS, all things necessary to make this Indenture the legal, valid and binding obligation of the Company, the Guarantor and the Trustee, for the uses and purposes herein set forth, in accordance with its terms, have been done and performed and have happened. GRANTING CLAUSE NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT WITNESSETH that, to secure the prompt payment of the principal of and interest and premium, if any, on and all other amounts due with respect to, the Equipment Notes from time to time outstanding hereunder and the performance and observance by the Company of all the agreements, covenants and provisions herein and in the Equipment Notes all for the benefit of the holders of the Equipment Notes, and for the uses and purposes and subject to the terms and provisions hereof, and in consideration of the premises and of the covenants herein contained, the Company does hereby sell, assign, transfer, convey, mortgage, pledge and confirm unto the Trustee, its successors and assigns, for the security and benefit of the holders of the Equipment Notes from time to time, a first priority security interest in and mortgage lien on all right, title and interest of the Company in and to the following described property, rights, interests and privileges (which collectively, including all property hereafter specifically subjected to the Lien of this Indenture by any instrument supplemental hereto, being herein called the "Indenture Estate"), to wit: (i) the Items of Equipment including, without limitation, all additions, alterations or modifications thereto or replacements of any part thereof, whenever made or performed or acquired and all other items of tangible personal property of any kind acquired by the Company in connection with the acquisition of the Items of Equipment, in each case whether acquired at the time of acquisition of the Items of Equipment or thereafter acquired pursuant to this Indenture or otherwise; and (ii) all Leases, including, without limitation, all amounts of rent, insurance proceeds and other payments of any kind for or with respect to the Equipment subject to each Lease; (iii) all monies and securities now or hereafter paid or deposited or required to be paid or deposited with the Trustee pursuant to any provision of this Indenture, or any Lease or required to be held by the Trustee hereunder or thereunder; and (iv) all right, title and interest of the Company in and to all proceeds, rents, issues, profits, products, revenues and other income, from and on account of the property, rights and privileges subjected or required to be subjected to the Lien of this Indenture. TO HAVE AND TO HOLD all and singular the aforesaid property unto the Trustee, its successors and assigns, in trust for the benefit and security of the holders of the Equipment Notes from time to time, without any priority of any one Equipment Note over any other Equipment Note, and for the uses and purposes, and subject to the terms and provisions, set forth in this Indenture. UPON CONDITION that, unless and until an Event of Default shall have occurred and be continuing, the Company shall be permitted, to the exclusion of the Trustee, to possess and use the Indenture Estate and exercise all rights with respect thereto. It is expressly agreed that anything herein contained to the contrary notwithstanding, the Company shall remain liable under each of the Operative Documents and Leases to which it is a party to perform all of the obligations, if any, assumed by it thereunder, all in accordance with and pursuant to the terms and provisions thereof, and the Trustee and the holders shall have no obligation or liability under any of the Operative Documents or Leases to which the Company is a party by reason of or arising out of this assignment, nor shall the Trustee or the holders of Equipment Notes be required or obligated in any manner to perform or fulfill any obligations of the Company under or pursuant to any of the Operative Documents or Leases to which the Company is a party or, except as herein expressly provided, to make any payment, or to make any inquiry as to the nature or sufficiency of any payment received by it, or present or file any claim, or take any action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times. The Company does hereby constitute the Trustee the true and lawful attorney of the Company, irrevocably, with full power (in the name of the Company or otherwise) to ask, require, demand, receive, compound and give acquittance for any and all money and claims for 2 money due and to become due to the Company which are part of the Indenture Estate, to endorse any checks or other instruments or orders in connection therewith and to file any notices or claims or take any action or institute any proceedings which the Trustee may deem to be necessary or advisable in the premises. The Company agrees that at any time and from time to time, the Company will promptly and duly execute, deliver and file or cause to be executed, delivered and filed any and all such further instruments and documents as may be necessary or as the Trustee may reasonably request in order to obtain the full benefits of this assignment and of the rights and powers herein granted. The Company does hereby warrant and represent that it has not assigned or pledged, and hereby covenants that it will not assign or pledge, so long as the assignment hereunder shall remain in effect, any of its right, title or interest hereby assigned to anyone other than the Trustee and that it will not, except as provided in or permitted by this Indenture, accept any payment constituting part of the Indenture Estate or enter into an agreement amending or supplementing any of the Operative Documents, execute any waiver or modification of, or consent under the terms of any of the Operative Documents, settle or compromise any claim arising under any of the Operative Documents, or submit or consent to the submission of any dispute, difference or other matter arising under or in respect of any of the Operative Documents to arbitration thereunder. IT IS HEREBY COVENANTED AND AGREED by and among the parties hereto as follows: ARTICLE I DEFINITIONS Section 1.01 Certain Definitions. Unless the context otherwise requires, all capitalized terms used herein and not otherwise defined shall have the meanings set forth in Appendix A hereto for all purposes of this Indenture. All references to articles, sections, clauses, schedules, exhibits, annexes and appendices in this Indenture are to articles, sections, clauses, schedules, exhibits, annexes and appendices in and to this Indenture unless otherwise indicated. ARTICLE II THE EQUIPMENT NOTES Section 2.01 Form of Equipment Notes. (a) The Equipment Notes and the Trustee's certificate of authentication with respect thereto shall be substantially in the form annexed hereto as Exhibit B. The Equipment Notes may have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have letters, notations, legends or endorsements required by law, stock exchange agreements to which the Company is subject, or usage. Any portion of the text of any Equipment Note may be set forth on the reverse thereof, with an appropriate reference thereto on 3 the face of the Equipment Note. The Company shall approve the form of the Equipment Notes and any notation, legend or endorsement on the Equipment Notes. Each Equipment Note shall be dated the date of its authentication. The terms and provisions contained in the form of the Equipment Notes annexed hereto as Exhibit B shall constitute, and are hereby expressly made, a part of this Indenture. Each of the Company and the Trustee, by its execution and delivery of this Indenture, expressly agrees to the terms and provisions of the Equipment Notes applicable to it and to be bound thereby. The Equipment Notes shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner determined by the officers executing such Equipment Notes, as evidenced by their execution of such Equipment Notes. Section 2.02 Execution, Authentication and Denominations. The Equipment Notes shall be executed by an Officer of the Company authorized to execute Equipment Notes, by facsimile or manual signature, in the name and on behalf of the Company. If an officer whose signature is on an Equipment Note no longer holds that office at the time the Trustee authenticates the Equipment Note, the Equipment Note shall be valid nevertheless. An Equipment Note shall not be valid until the Trustee manually signs the certificate of authentication on the Equipment Note. The signature shall be conclusive evidence that the Equipment Note has been authenticated under this Indenture. At any time and from time to time after the execution of this Indenture, the Trustee shall, upon receipt of a Company Order, authenticate for original issue Equipment Notes in the aggregate principal amount specified in such Company Order. Such Company Order shall specify the amount of Equipment Notes to be authenticated and the date on which the issue of Equipment Notes is to be authenticated. Section 2.03 Registrar and Paying Agent. The Company shall maintain an office or agency where Equipment Notes may be presented for registration of transfer or for exchange (the "Registrar"), an office or agency where Equipment Notes may be presented for payment (the "Paying Agent"), and an office or agency where notices and demands to or upon the Company in respect of the Equipment Notes and this Indenture may be served. The Company shall cause the Registrar to keep a register of the Equipment Notes and of their transfer and exchange (the "Equipment Note Register"). The Company may have one or more additional Paying Agents. The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall give prompt written notice to the Trustee of the name and address of any such Agent and any change in the address of such Agent. If the Company fails to maintain a Registrar, Paying Agent and/or agent for service of notices and demands, the Trustee shall act as such Registrar, Paying Agent and/or agent for service of notices and demands 4 for so long as such failure shall continue. The Company may remove any Agent upon written notice to such Agent and the Trustee; provided that no such removal shall become effective until (i) the acceptance of an appointment by a successor Agent to such Agent as evidenced by an appropriate agency agreement entered into by the Company and such successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i) of this proviso. The Company or any Affiliate of the Company may act as Paying Agent, Registrar, and/or agent for service of notice and demands. The Company shall initially act as the Paying Agent. The Company initially appoints the Trustee as Registrar, Paying Agent and authenticating agent. If, at any time, the Trustee is not the Registrar, the Registrar shall make available to the Trustee on or before each Interest Payment Date and at such other times as the Trustee may reasonably request, the names and addresses of the Holders as they appear in the Equipment Note Register. Section 2.04 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent, if any, other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, or interest on the Equipment Notes (whether such money has been paid to it by the Company or the Guarantor on the Equipment Notes), and that such Paying Agent shall promptly notify the Trustee of any default by the Company (or the Guarantor on the Equipment Notes) in making any such payment. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the Trustee. If the Company or any Subsidiary of the Company or any Affiliate of any of them acts as Paying Agent, it will, on or before each due date of any principal of, premium, if any, or interest on the Equipment Notes, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such principal, premium, if any, or interest so becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and will promptly notify the Trustee of its action or failure to act as required by this Section 2.04. Section 2.05 Transfer and Exchange. The Equipment Notes are issuable only in registered form. A Holder may transfer an Equipment Note by written application to the Registrar stating the name of the proposed transferee and otherwise complying with the terms of this Indenture. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon registration of the transfer by the Registrar in the Equipment Note Register. Prior to the registration of any transfer by a Holder as provided herein, the Company, the Trustee, and any agent of the Company or the Trustee shall treat the Person in whose name the Equipment Note is registered as the owner thereof for all purposes and none of the Company, the Trustee, or any such agent shall be affected by notice to the contrary. When Equipment Notes are presented to the Registrar with a request to register the transfer or to exchange them for an equal principal amount of Equipment Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges in accordance with 5 the terms, conditions and restrictions hereof, the Company shall execute and the Trustee shall authenticate Equipment Notes. No service charge shall be made to any Holder for any registration of transfer or exchange or redemption of the Equipment Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or other similar governmental charge payable upon transfers or exchanges pursuant to Section 2.12 or 8.05). Section 2.06 Replacement Equipment Notes. If (i) a mutilated Equipment Note is surrendered to the Trustee or the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Equipment Note, and (ii) there is delivered to the Company and the Trustee such security or indemnity as may be required by them to hold each of them harmless, then, in the absence of notice to the Company, the Registrar or the Trustee that such Equipment Note has been acquired by a protected purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Equipment Note, a replacement Equipment Note of like tenor and amount; provided, however, that if any such mutilated, destroyed, lost or stolen Equipment Note has become or is about to become due and payable, the Company, in its discretion, may pay such Equipment Note instead of issuing a new Equipment Note in replacement thereof. Upon the issuance of any replacement Equipment Note under this Section, the Company may require the payment by the Holder of such Equipment Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee) connected therewith. Every replacement Equipment Note issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Equipment Note shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Equipment Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Equipment Notes duly issued hereunder. Section 2.07 Outstanding Equipment Notes. Equipment Notes outstanding at any time are all Equipment Notes that have been authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation and those described in this Section 2.07 as not outstanding. If an Equipment Note is replaced pursuant to Section 2.06, it ceases to be outstanding unless and until the Trustee and the Company receive proof reasonably satisfactory to them that the replaced Equipment Note is held by a protected purchaser. An Equipment Note does not cease to be outstanding because the Company or one of its Affiliates holds such Equipment Note; provided, however, that, in determining whether the Holders of the requisite principal amount of the outstanding Equipment Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Equipment Notes owned by the Company or any other obligor upon the Equipment Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, 6 demand, authorization, direction, notice, consent or waiver, only Equipment Notes which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Equipment Notes so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Equipment Notes and that the pledgee is not the Company or any other obligor upon the Equipment Notes or any Affiliate of the Company or of such other obligor. Section 2.08 Cancellation. The Company at any time may deliver to the Trustee for cancellation any Equipment Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever. The Registrar and the Paying Agent shall forward to the Trustee any Equipment Notes surrendered to them for registration of transfer, exchange, purchase or payment. The Trustee shall cancel all Equipment Notes surrendered for registration of transfer, exchange, purchase, payment or cancellation and shall return all such Equipment Notes to the Company. The Company shall not issue Equipment Notes to replace Equipment Notes it has paid in full or delivered to the Trustee for cancellation. Section 2.09 Application of Payments to Principal Amount and Interest. In the case of each Equipment Note, each payment of principal thereof and premium, if any, and interest thereon shall be applied, first, to the payment of accrued but unpaid interest on such Equipment Note then due thereunder (as well as any interest on any overdue principal amount) and (to the extent permitted by law) any overdue premium, if any, any overdue interest and any other overdue amounts thereunder to the date of such payment, second, to the payment of any premium then due thereon, and third, to the payment of the principal amount of such Equipment Note then due thereunder (which, in the case of any partial redemption pursuant to Section 2.12, shall be applied toward the pro rata reduction of all remaining installments of principal on such Equipment Note). Section 2.10 Termination of Interest in Indenture Estate. A Holder shall have no further interest in, or other right with respect to, the Indenture Estate when and if the principal amount of and interest on all Equipment Notes held by such Holder and all other sums payable to such Holder hereunder and under such Equipment Notes shall have been paid in full. Section 2.11 Equally and Ratably Secured. All Equipment Notes at any time outstanding under this Indenture shall be equally and ratably secured hereby without preference, priority or distinction on account of the date or dates, the actual time or times of the issue or maturity of such Equipment Notes so that all Equipment Notes at any time issued and outstanding hereunder shall have the same rights and preferences, and be entitled to the same benefits provided by the Liens created, under and by virtue of this Indenture. Section 2.12 Redemption; Notice of Redemption. (a) The Company may, at its option, on not less than 30 (and no more than 60) days' notice to the Trustee, redeem on any date the outstanding Equipment Notes in whole or in part, at a redemption price equal to the greater of (1) 100% of the principal amount of the Equipment Notes to be redeemed, and (2) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest in respect of the Equipment Notes to be redeemed (not including any portion of those payments of interest accrued as of the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day 7 months) at the Adjusted Treasury Rate plus 25 basis points, plus, in each case, accrued interest to the date of redemption. "Adjusted Treasury Rate" means, with respect to any redemption date, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that redemption date. "Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Equipment Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of those Equipment Notes. "Comparable Treasury Price" means, with respect to any redemption date, (i) the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than three Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so received. "Quotation Agent" means the Reference Treasury Dealer appointed by the Company. "Reference Treasury Dealer" means (1) J.P. Morgan Securities Inc. and its successors, provided, however, that if the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Company shall substitute another Primary Treasury Dealer, and (2) any other Primary Treasury Dealer selected by the Company. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that redemption date. Upon the redemption of any Equipment Notes pursuant to this Section 2.12(a), the Trustee shall, in accordance with Section 11.01(a), release from the Lien of this Indenture the Items of Equipment specified by the Company in a Company Order having an aggregate Fair Value as determined by the Company equal to or less than the product obtained by multiplying the aggregate Fair Value of all Items of Equipment subject to the Lien of this Indenture by a fraction, the numerator of which shall be the aggregate unpaid principal amount of the Equipment Notes so redeemed and the denominator of which shall be the aggregate unpaid principal amount of all Equipment Notes outstanding immediately prior to such redemption. (b) In connection with an Event of Loss (unless the Company shall have elected the option set forth in Section 9.11(a)(i) with respect thereto), the Company shall, on or before the relevant Loss Redemption Date (as defined in Section 9.11(a)), redeem a principal amount of the Equipment Notes equal to the product obtained by multiplying the aggregate 8 unpaid principal amount of all Equipment Notes on the date notice of the Company's election to redeem is given to the Trustee pursuant to Section 9.11(a), by a fraction, the numerator of which shall be the Fair Value of the Equipment with respect to which such Event of Loss occurred and the denominator of which shall be the aggregate Fair Value of all Equipment subject to the Lien hereof immediately prior to the occurrence of such Event of Loss. The redemption price payable upon a redemption pursuant to this Section 2.12(b) shall equal the principal amount of the Equipment Notes to be redeemed as determined pursuant to the immediately preceding sentence, together with accrued and unpaid interest on such principal amount to the date of such redemption but without the payment of any premium. (c) The Trustee shall give prompt notice to the Noteholders of any redemption pursuant to this Section 2.12. (d) The Equipment Notes are not subject to redemption or prepayment except as provided in this Section 2.12 and in Section 3.03 of this Indenture. ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE INDENTURE ESTATE Section 3.01 Payments Prior to Indenture Event of Default. Except as otherwise provided in Section 3.03, any money paid over by the Company to the Trustee for payment on the Equipment Notes shall be distributed by the Trustee as promptly as possible to the holders of the Equipment Notes to pay in full the aggregate amount of the payment or payments of principal, premium, if any, and interest (as well as any interest on overdue principal) then due, such distribution to be made ratably, in the proportion that the amount of such payment or payments then due or so scheduled with respect to each such Equipment Note bears to the aggregate amount of payments then due under all such Equipment Notes. The amount so distributed to a Holder of an Equipment Note shall be applied by such Holder in payment of such Equipment Note in accordance with the terms of Section 2.09. Section 3.02 [Reserved]. Section 3.03 Payments After Indenture Event of Default. (a) All payments received and amounts realized by the Trustee after an Indenture Event of Default shall have occurred and be continuing and after the Equipment Notes shall have been accelerated pursuant to Section 4.02 or the Trustee has elected to foreclose or otherwise enforce its rights under this Indenture (including any amounts realized by the Trustee from the exercise of any remedies pursuant to Article IV), as well as all payments or amounts then held or thereafter received by the Trustee as part of the Indenture Estate while such Indenture Event of Default shall be continuing, shall be distributed forthwith by the Trustee in the following order of priority: first, so much of such payments or amounts as shall be required to pay or reimburse the Trustee for any unpaid fees for its services under this Indenture and any tax, liability, expense (including reasonable attorneys' fees) or other loss incurred by the Trustee (to the extent reimbursable and not previously reimbursed and to the extent reasonably incurred in connection with its duties as 9 Trustee) shall be distributed to the Trustee; second, so much of such payments or amounts as shall be required to reimburse the Holders of the Equipment Notes for payments made by them to the Trustee pursuant to Article V (to the extent not previously reimbursed), shall be distributed to such Holders of the Equipment Notes, without priority of one over the other, in accordance with the amount of the payment or payments made by, or payable to, each such Holder; third, so much of such payments or amounts as shall be required to pay in full the aggregate unpaid principal amount of all Equipment Notes, plus the accrued but unpaid interest thereon to the date of distribution, shall be distributed to the Holders of the Equipment Notes, and in case the aggregate amount so to be distributed shall be insufficient to pay in full the aforesaid amounts, then, ratably, without priority of one over another, in the proportion that the aggregate unpaid principal amount of all Equipment Notes held by each such Holder, plus the accrued but unpaid interest thereon to the date of distribution, bears to the aggregate unpaid principal amount of all Equipment Notes, plus the accrued but unpaid interest thereon to the date of distribution; and fourth, the balance, if any, of such payments or amounts remaining thereafter shall be distributed to, or as directed by, the Company; (b) If an Indenture Event of Default shall have occurred and be continuing, the Trustee shall not make any distribution to the Company but shall hold amounts otherwise distributable to the Company as collateral security for the obligations secured hereby until such time as no Indenture Event of Default shall be continuing hereunder or such amounts are applied pursuant to Section 3.03(a). Section 3.04 Other Payments. Except as otherwise provided in Section 3.03, (a) any payments received by the Trustee for which no provision as to the application thereof is made elsewhere in this Article III, and (b) all payments received and amounts realized by the Trustee with respect to the Items of Equipment to the extent received or realized at any time after payment in full of the principal of and interest and premium, if any, on all Equipment Notes, as well as any other amounts remaining as part of the Indenture Estate after payment in full of the principal of and interest and premium, if any, on all Equipment Notes issued hereunder, shall be distributed forthwith by the Trustee in the order of priority set forth in Section 3.03, except that in the case of any payment described in clause (b) above, such payment shall be distributed omitting clause "third" of such Section 3.03(a). ARTICLE IV REMEDIES OF THE TRUSTEE UPON AN INDENTURE EVENT OF DEFAULT Section 4.01 Indenture Events of Default. The following events shall constitute "Indenture Events of Default" and each such Indenture Event of Default shall be deemed to exist and continue so long as, but only so long as, it shall not have been remedied: 10 (a) default by the Company in making any payment when due of any principal of or premium (if any) on, any Equipment Note; (b) default by the Company in making any payment when due of any interest on any Equipment Note, and the continuance of such default unremedied for 10 Business Days after the same shall have become due and payable; (c) any failure by the Company or the Guarantor to observe or perform in any material respect any covenant or obligation of it, in this Indenture or the Equipment Notes if, but only if, such failure is not remedied within a period of 120 days after there has been given to the Company or the Guarantor, as the case may be, by the Trustee or the Holders of 25% or more in aggregate principal amount of the Equipment Notes then outstanding a written notice specifying such failure and requiring it to be remedied; (d) any representation or warranty made by the Company hereunder, or by any representative of the Company in any document or certificate furnished to the Trustee in connection herewith or pursuant hereto, shall prove at any time to have been incorrect in any material adverse respect as of the date made and such incorrectness shall remain material and unremedied for a period of 120 days after the date on which there has been given to the Company by the Trustee or the Holders of 25% or more in aggregate principal amount of the Equipment Notes then outstanding a written notice specifying such incorrectness; (e) the Guarantee shall cease to be in full force and effect or the Guarantor shall take any action to seek to have the Guarantee declared void or unenforceable; (f) either the Company or the Guarantor shall (i) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate action to authorize any of the foregoing; or (g) an involuntary case or other proceeding shall be commenced against either the Company or the Guarantor seeking liquidation, reorganization or other relief with respect to it or its respective debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 90 days. Section 4.02 Acceleration; Rescission and Annulment. If an Indenture Event of Default (other than as described in Section 4.01(f) or (g)) shall occur and be continuing, the Trustee may, and when instructed by the Holders of at least 25% in aggregate principal amount 11 of the Equipment Notes then outstanding, shall, by written notice to the Company, declare the unpaid principal amount of all Equipment Notes then outstanding to be immediately due and payable, together with all accrued and unpaid interest thereon and all other amounts due thereunder. If an Indenture Event of Default described in Section 4.01(f) or (g) shall have occurred and be continuing, the unpaid principal amount of all Equipment Notes then outstanding, together with all accrued and unpaid interest thereon and all other amounts due thereunder, shall immediately become due and payable, without any notice or action by the Trustee or any Noteholder, to the fullest extent permitted by law. At any time after acceleration and prior to the sale of any of the Indenture Estate pursuant to this Article IV, a Majority in Interest, by written notice to the Company and the Trustee, may rescind and annul such acceleration and thereby annul its consequences if: (i) there has been paid to or deposited with the Trustee an amount sufficient to pay all overdue installments of interest on the Equipment Notes, and the principal of and premium, if any, on any Equipment Notes that have become due otherwise than by such acceleration, (ii) the rescission would not conflict with any judgment or decree, and (iii) all other Indenture Defaults and Indenture Events of Default, other than nonpayment of principal or interest on the Equipment Notes that have become due solely because of such acceleration, have been cured or waived. Section 4.03 Remedies with Respect to Indenture Estate. (a) If an Indenture Event of Default shall have occurred and be continuing, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02, then and in every such case the Trustee shall be entitled to exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to this Article IV and may recover judgment in its own name as Trustee against the Company and Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the Company and all persons claiming under the Company wholly or partly therefrom. (b) The Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given written notice of such sale to the Company at least 30 days prior to the date of such sale or the date on which the Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Trustee or the Holder or Holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the Holders may exercise such right without including the Holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of effecting any sale, assignment, transfer or delivery for enforcement of the Lien of this 12 Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Trustee may consider necessary or appropriate, with full power of substitution, the Company hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Trustee or any purchaser, the Company shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) The Company agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Trustee may take possession of all or any part of the Indenture Estate and, subject to the rights of the lessees under the Leases, may exclude the Company and all persons claiming under any of them wholly or partly therefrom. At the request of the Trustee, the Company shall promptly execute and deliver to the Trustee such instruments of title and other documents as the Trustee may deem necessary or advisable to enable the Trustee or an agent or representative designated by the Trustee, at such time or times and place or places as the Trustee may specify, to obtain possession, subject to the rights of the lessees under the Leases, of all or any part of the Indenture Estate. If the Company shall fail for any reason to execute and deliver such instruments and documents to the Trustee, the Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the Company wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and take possession of and remove the Indenture Estate, subject to the rights of the lessees under the Leases. Upon every such taking of possession, the Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem proper or as it may otherwise be directed to do so by a Majority in Interest. In each such case, and subject to the rights of the lessees under the Leases, the Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the Company relating to the Indenture Estate, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part thereof; and the Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the Company), and all other payments which the Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Trustee, and of all persons properly engaged and employed by the Trustee, including the reasonable expenses of the Trustee. Any action by the Trustee pursuant to this Section 4.03(c) 13 will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Trustee shall have obtained possession of an Item of Equipment, the Trustee shall not be obligated to cause any Person to use or operate such Item of Equipment or cause such Item of Equipment to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such Item of Equipment by any other Person unless (i) the Trustee, as directed by a Majority in Interest, shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to a Majority in Interest to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all liability for loss or damage to such Item of Equipment and for public liability and property damage resulting from use or operation of such Item of Equipment and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Trustee in its discretion to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all such liabilities. (e) If an Indenture Event of Default shall occur and be continuing, the Trustee may proceed to protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of any covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the Indenture Estate or any part thereof, or for the recovery of a judgment for the indebtedness secured hereby, or the enforcement of any other legal or equitable remedy available to a mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice. Section 4.04 Waiver of Existing Defaults. A Majority in Interest by notice to the Trustee on behalf of all Holders of the Equipment Notes may waive any past default hereunder and its consequences, except that the consent of each Holder of an Equipment Note affected thereby shall be required to waive a default (i) in the payment of the principal of, premium, if any, or interest on any Equipment Note or (ii) in respect of a covenant or provision hereof which under Article VIII hereof cannot be modified or amended without the consent of the Holder of each Equipment Note affected. Upon any such waiver, such default shall cease to exist, and any Indenture Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 4.05 Control by Majority. A Majority in Interest may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or 14 exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of the Equipment Notes not joining in the giving of such direction, and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of the Equipment Notes. Section 4.06 Limitation on Suits. A Holder may not pursue any remedy with respect to this Indenture or the Equipment Notes unless: (i) the Holder gives the Trustee written notice of a continuing Indenture Event of Default; (ii) the Holders of at least 25% in aggregate principal amount of outstanding Equipment Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, a Majority in Interest does not give the Trustee a direction that is inconsistent with the request. A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder. Section 4.07 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of an Equipment Note to receive payment of principal of, premium, if any, or interest on such Holder's Equipment Note on or after the respective due dates expressed on such Equipment Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. Section 4.08 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Indenture Event of Default shall impair any such right or remedy or constitute a waiver of any such Indenture Event of Default or an acquiescence therein. Every right and remedy given under this Indenture or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. Section 4.09 Remedies Cumulative. Each and every right, power and remedy herein specifically given to the Trustee or otherwise in this Indenture shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Trustee, and the exercise or the 15 beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the time or thereafter any other right, power or remedy. No delay or omission by the Trustee in the exercise of any right, remedy or power or in the pursuance of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Company or to be an acquiescence therein. Section 4.10 Discontinuance of Proceedings. In case the Trustee shall have proceeded to enforce any right, power or remedy under this Indenture by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in every such case the Company and, the Trustee shall be restored to their former positions and rights hereunder with respect to the Indenture Estate, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been undertaken (but otherwise without prejudice). Section 4.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorney's fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant, provided that the provisions of this Section shall not apply to any suit instituted by any Holder of an Equipment Note. ARTICLE V THE TRUSTEE Section 5.01 Acceptance of Trusts and Duties. The Trustee accepts the trusts hereby created and applicable to it and agrees to perform the same but only upon the terms of this Indenture and agrees to receive and disburse all money received by it constituting part of the Indenture Estate in accordance with the terms hereof. Section 5.02 Certain Duties and Responsibilities. (a) Except during the continuance of an Indenture Event of Default: (i) the Trustee undertakes to perform such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). 16 (b) In case an Indenture Event of Default shall occur and be continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action (or negligent action in the handling of funds), its own grossly negligent failure to act (or negligent failure to action in the handling of funds), or its own willful misconduct, except that: (i) this subsection shall not be construed to limit the effect of subsection (a) of this Section; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of a Majority in Interest relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and (iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. (d) Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 5.03 Notice of Indenture Defaults. If the Trustee shall have knowledge of any Indenture Default or Indenture Event of Default hereunder, the Trustee shall promptly give notice thereof to the Company in accordance with Section 11.10 and to all Holders, as their names and addresses appear in the Equipment Note Register, unless such Indenture Default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Equipment Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders. Section 5.04 Certain Rights of Trustee. Except as otherwise provided in Section 5.02: (a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper 17 or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer's Certificate of the Company; (c) the Trustee may consult with counsel of its choice and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the cost, expenses and liabilities which might be incurred by it in compliance with such request or direction; (e) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document; (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (g) the Trustee shall not be deemed to have notice of any Indenture Default or Indenture Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any such event is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Equipment Notes and this Indenture; and (h) the Trustee may request that the Company deliver an Officer's Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer's Certificate may be signed by any person authorized to sign an Officer's Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. Section 5.05 Not Responsible for Recitals or Issuance of Equipment Notes. The recitals contained herein and in the Equipment Notes, except the certificates of authentication, shall not be taken as the statements of the Trustee, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or the Equipment Notes, except that the Trustee hereby represents and warrants that this Indenture has been executed and delivered by one of its officers who is duly authorized to execute and deliver such document on its behalf. 18 Section 5.06 May Hold Equipment Notes. The Trustee may become the owner or pledgee of Equipment Notes and may otherwise deal with the Company with the same rights it would have if it were not Trustee. Section 5.07 Indenture Supplements. In the event there is delivered to the Trustee for execution an Indenture Supplement or a Memorandum of Trust, as contemplated by Section 9.11, 9.13 or 9.14, the Trustee agrees, subject to Section 8.02, for the benefit of the holders of the Equipment Notes and the Company, to execute and deliver such Indenture Supplement or Memorandum of Trust, as the case may be. Section 5.08 Effect of Replacements. In the event of the substitution of a Replacement Item of Equipment, all provisions of this Indenture relating to the Item of Equipment or Items of Equipment being replaced shall be applicable to such Replacement Item of Equipment with the same force and effect as if such Replacement Item of Equipment was the same Item of Equipment being replaced. Section 5.09 Withholding Taxes. The Trustee, as agent for the Company, shall exclude and withhold from each payment of principal, premium, if any, and interest and other amounts due hereunder or under the Equipment Notes any and all withholding taxes applicable thereto as required by law. The Trustee agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld by it with respect to any amounts payable in respect of the Equipment Notes, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the holders of the Equipment Notes, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each holder of an Equipment Note appropriate documentation showing the payment thereof, together with such additional documentary evidence as such holders may reasonably request from time to time. Section 5.10 No Representations or Warranties as to the Items of Equipment or Documents. THE TRUSTEE NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE (i) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE ITEMS OF EQUIPMENT OR AS TO THE TITLE THERETO, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE ITEMS OF EQUIPMENT WHATSOEVER, or (ii) any representation or warranty as to the validity, legality or enforceability of this Indenture, the Equipment Notes, or any Indenture Supplement or any other document or instrument or as to the correctness of any statement contained in any thereof (except as to the representations and warranties made by the Trustee herein). Section 5.11 No Segregation of Moneys; No Interest; Investments. (a) Subject to Section 5.12(b), no money received by the Trustee hereunder need be segregated in any manner except to the extent required by law, and any such money may be deposited under such general conditions for the holding of trust funds as may be prescribed by law applicable to the Trustee, and, except as otherwise agreed by the Trustee, the Trustee shall not be liable for any interest thereon. 19 (b) Any amounts held by the Trustee pursuant to the express terms of this Indenture and not required to be distributed as herein provided shall be invested and reinvested by the Trustee from time to time in Specified Investments at the written direction and at the risk and expense of the Company, except that in the absence of any such direction or after an Indenture Event of Default shall have occurred and be continuing, such amounts shall be so invested by the Trustee in Specified Investments of the type specified in clause (f) of the definition thereof, except as provided below, and the Trustee shall hold any such Specified Investments until maturity. Any net income or gain realized as a result of any such investments shall be held as part of the Indenture Estate and shall be applied by the Trustee at the same times, on the same conditions and in the same manner as the amounts in respect of which such income or gain was realized are required to be distributed in accordance with the provisions hereof pursuant to which such amounts were required to be held and if no Indenture Event of Default shall have occurred and be continuing any excess shall be paid to the Company upon its request. Any such Specified Investments may be sold or otherwise reduced to cash (without regard to maturity date) by the Trustee whenever necessary to make any application as required by such provision. The Trustee shall have no liability for any loss resulting from any such investment other than by reason of the willful misconduct or negligence of the Trustee. Section 5.12 No Compensation from Holders or Indenture Estate. The Trustee agrees that it shall have no right against the Holders of the Equipment Notes or, except as provided in Sections 3.03 and 4.03, the Indenture Estate, for any fee as compensation for its services hereunder. Section 5.13 Limitation on Duty of Trustee in Respect of Indenture Estate. (a) Except as otherwise provided in this Indenture, the Trustee shall have no duty as to any Indenture Estate in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Indenture Estate. (b) The Trustee shall not be responsible for (i) the existence, genuineness or value of any of the Indenture Estate or for the validity, perfection, priority or enforceability of the Liens in any of the Indenture Estate, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (ii) for the validity or sufficiency of the Indenture Estate or any agreement or assignment contained therein, (iii) for the validity of the title of the Company to the Indenture Estate, (iv) for insuring the Indenture Estate or (v) for the payment of taxes, charges, assessments or Liens upon the Indenture Estate or otherwise as to the maintenance of the Indenture Estate. Section 5.14 No Liability of Trustee. Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable under or in connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the 20 Trustee has been advised of the possibility thereof and regardless of the form of action in which such damages are sought. ARTICLE VI INDEMNIFICATION AND COMPENSATION OF TRUSTEE Section 6.01 Scope of Indemnification. The Company hereby agrees, whether or not any of the transactions contemplated hereby shall be consummated, to assume liability for, and does hereby indemnify, protect, save and keep harmless the Trustee, in each of its capacities hereunder, including in its individual capacity, and its successors, assigns, agents and servants, from and against any and all liabilities (including strict tort liability), obligations, losses, damages, penalties, taxes (excluding any taxes, fees or other charges on, based on, or measured by, any fees or compensation received by the Trustee for services rendered in connection with the transactions contemplated hereby), claims, actions, suits, costs, expenses or disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Indenture Estate or the Trustee (whether or not also indemnified against by any other person under any other document) in any way relating to or arising out of this Indenture, any Indenture Supplement or the Equipment Notes, or the enforcement of any of the terms of any thereof, or in any way relating to or arising out of the manufacture, purchase, acceptance, nonacceptance, rejection, ownership, delivery, lease, sublease, registration, re-registration, possession, use, operation, condition, sale, return or other disposition of the Items of Equipment or any part thereof (including, without limitation, latent and other defects, whether or not discoverable, and any claim for patent, trademark or copyright infringement), or in any way relating to or arising out of the administration of the Indenture Estate or the action or inaction of the Company hereunder, or the Trustee hereunder except only in the case of willful misconduct, bad faith or gross negligence (or negligence in the handling of funds) of the Trustee in the performance of its duties hereunder or the breach of any of its representations and warranties set forth herein. Section 6.02 Compensation. The Company agrees (a) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, wilfull misconduct or bad faith. The Trustee shall have a lien prior to the Equipment Notes as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to 21 Sections 6.01 and 6.02, except with respect to funds held in trust for the benefit of the Holders of particular Equipment Notes. When the Trustee incurs expenses or renders services in connection with an Indenture Event of Default specified in Section 4.01(f) or Section 4.01(g), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law. The provisions of this Section 6.02 shall survive the termination of this Indenture. ARTICLE VII SUCCESSOR TRUSTEES Section 7.01 Resignation of Trustee; Appointment of Successor. (a) The resignation or removal of the Trustee and the appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 7.01. The Trustee or any successor thereto may resign at any time without cause by giving at least 30 days' prior written notice to the Company and the Holders of the Equipment Notes. A Majority in Interest may at any time remove the Trustee without cause upon 60 days prior written notice by an instrument in writing delivered to the Company and the Trustee. In addition, the Company may remove the Trustee if: (i) the Trustee fails to comply with Section 7.01(c), (ii) the Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or public officer takes charge of the Trustee or its property or (iv) the Trustee becomes incapable of acting as provided herein. In the case of the resignation or removal of the Trustee, the Company shall promptly appoint a successor Trustee, provided that a Majority in Interest may appoint, within one year after such resignation or removal, a successor Trustee which may be other than the successor Trustee appointed as provided above, and such successor Trustee appointed as provided above shall be superseded by the successor Trustee so appointed by a Majority in Interest. If a successor Trustee shall not have been appointed and accepted its appointment hereunder within 60 days after the Trustee gives notice of resignation as provided above, the retiring Trustee, the Company or a Majority in Interest may petition any court of competent jurisdiction for the appointment of a successor Trustee. Any successor Trustee so appointed by such court shall immediately and without further act be superseded by any successor Trustee appointed as provided in the proviso to the fifth sentence of this paragraph (a) within one year from the date of the appointment by such court. (b) Any successor Trustee, however appointed, shall execute and deliver to the Company and to the predecessor Trustee an instrument accepting such appointment, and thereupon such successor Trustee, without further act, shall become vested with all the estates, properties, rights, powers, duties and trusts of the predecessor Trustee hereunder in the trusts hereunder applicable to it with like effect as if originally named the Trustee herein; but nevertheless, upon the written request of such successor Trustee, such predecessor Trustee shall 22 execute and deliver an instrument transferring to such Trustee, upon the trusts herein expressed applicable to it, all the estates, properties, rights, powers and trusts of such predecessor Trustee, and such Trustee shall duly assign, transfer, deliver and pay over to such successor Trustee all money or other property then held by such predecessor Trustee hereunder. (c) The Trustee shall be a bank or trust company, organized under the laws of the United States of America or any state thereof, having a combined capital and surplus of at least $50,000,000 (or the obligations and liabilities of which are irrevocably and unconditionally guaranteed by an affiliated company having a combined capital and surplus of at least $50,000,000), if there be such an institution willing, able and legally qualified to perform the duties of the Trustee hereunder upon reasonable or customary terms. (d) Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation to which substantially all the corporate trust business of the Trustee may be transferred, shall, subject to the terms of paragraph (c) of this Section, be the Trustee under this Indenture without further act. Section 7.02 Appointment of Co-Trustee. It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as trustee in such jurisdiction. It is recognized that in case of litigation under this Indenture, and in particular in case of the enforcement thereof on default, or in the case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold title to the properties, in trust, as herein granted or take any action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an individual or institution as a separate or co-trustee, provided that unless an Indenture Event of Default shall have occurred and be continuing, any such appointment of a co-trustee shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. The following provisions of this Section are adopted to these ends. In the event that the Trustee appoints an additional individual or institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee to exercise such powers, rights and remedies, and only to the extent that the Trustee by the laws of any jurisdiction is incapable of exercising such powers, rights and remedies and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of them. Should any instrument in writing from the Company be required by the separate or co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Company; provided, that if an Indenture Event of Default shall have occurred and be continuing, if the Company does not execute any such instrument within fifteen (15) days after request 23 therefor, the Trustees shall be empowered as an attorney-in-fact for the Company to execute any such instrument in the Company's name and stead. In case any separate or co-trustee or a successor to either shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate or co-trustee. Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions: (i) all rights and powers, conferred or imposed upon the Trustee shall be conferred or imposed upon and may be exercised or performed by such separate trustee or co-trustee; and (ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder. Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture of this Section. Any separate trustee or co-trustee may at any time appoint the Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successors trustee. Section 7.03 No Liability for Clean-up of Hazardous Materials. In the event that the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Trustee's sole discretion may cause the Trustee to be considered an "owner or operator" under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Section 9601, et seq., or otherwise cause the Trustee to incur liability under CERCLA or any other federal, state or local law, the Trustee reserves the right to, instead of taking such action, either resign as Trustee or arrange for the transfer of the title or control of the asset to a court appointed receiver. ARTICLE VIII SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS Section 8.01 Supplemental Indentures. (a) Supplemental Indentures Without Consent of Holders. The Company, the Guarantor and the Trustee, at any time and from time to 24 time, without notice to or the consent of any Holders of any Equipment Notes, may enter into one or more indentures supplemental hereto for any of the following purposes: (i) to correct or amplify the description of any property at any time subject to the lien of this Indenture or better to assure, convey and confirm unto the Trustee any property subject or required to be subject to the lien of this Indenture or to subject to the lien of this Indenture any Item of Equipment or Lease in accordance with the provisions of Section 9.11, 9.13 or 9.14; provided, however, that Indenture Supplements entered into for the purpose of subjecting to the lien of this Indenture any Item of Equipment or Lease need only be executed by the Company; or (ii) to evidence (in accordance with Article VII) the succession of a successor Trustee hereunder; or (iii) to add to the covenants of the Company or the Guarantor, for the benefit of the holders of the Equipment Notes, or to surrender any right or power herein conferred upon the Company; or (iv) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising hereunder so long as any such action does not adversely affect the interests of the Holders of the Equipment Notes. (b) Supplemental Indentures with Consent of Majority in Interest. With the written consent of a Majority in Interest, the Company and the Guarantor may, and the Trustee, subject to Section 8.02 hereof, shall, at any time and from time to time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights and obligations of Holders of the Equipment Notes under this Indenture; provided, however, without the consent of each Holder of an Equipment Note affected thereby, no such Supplemental Indenture shall: (i) change the final maturity of the principal of any Equipment Note, or change the dates or amounts of payment of any installment of the principal of or premium, if any, or interest on any Equipment Note, or reduce the principal amount thereof or the premium, if any, or interest thereon, or change to a location outside the United States the place of payment where, or the coin or currency in which, any Equipment Note or the premium, if any, or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment of principal or premium, if any, or interest on or after the date such principal or premium, if any, or interest becomes due and payable; (ii) create any lien with respect to the Indenture Estate ranking prior to, or on a parity with, the security interest created by this Indenture except such as are permitted by this Indenture, or deprive any Holder of an Equipment Note of the benefit of the lien on the Indenture Estate created by this Indenture; 25 (iii) reduce the percentage in principal amount of the Equipment Notes, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture, or of certain defaults hereunder and their consequences provided for in this Indenture; (iv) modify any provisions of this Section 8.01(b), except to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Equipment Note affected thereby; or (v) release the Guarantor from any of its obligations under the Guarantee or this Indenture. Section 8.02 Trustee Protected. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article VIII or Article V is authorized or permitted by this Indenture. If in the opinion of the Trustee any document required to be executed pursuant to the terms of Section 8.01 adversely affects any right, duty, immunity or indemnity in favor of the Trustee under this Indenture, the Trustee may in its discretion decline to execute such document. Section 8.03 Request of Substance, Not Form. It shall not be necessary for the consent of the holders of Equipment Notes under Section 8.01(b) to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Section 8.04 Documents Mailed to Holders. Promptly after the execution by the Trustee of any document entered into pursuant to Section 8.01(b), the Trustee shall mail, by first-class mail, postage prepaid, a conformed copy thereof to each Holder of an Equipment Note at its address in the Equipment Note Register, but the failure of the Trustee to mail such conformed copies shall not impair or affect the validity of such document. Section 8.05 Notation on or Exchange of Equipment Notes. If an amendment, supplement or waiver changes the terms of an Equipment Note, the Trustee may require the Holder to deliver such Equipment Note to the Trustee. The Trustee may place an appropriate notation on the Equipment Note indicating the changed terms and return it to the Holder, and the Trustee may place an appropriate notation on any Equipment Note thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange for such changed Equipment Note shall issue and the Trustee shall authenticate a new Equipment Note that reflects the changed terms. 26 ARTICLE IX COVENANTS OF THE COMPANY Section 9.01 Payment of Equipment Notes. The Company will pay or cause to be paid the principal of, premium, if any, and interest on the Equipment Notes on the dates and in the manner provided in the Equipment Notes. Section 9.02 Maintenance of Corporate Existence. The Company shall at all times maintain its corporate existence, except as otherwise specifically permitted in Section 9.03, and shall do or cause to be done all things necessary to preserve and keep in full force and effect its rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Company determines that the preservation thereof is no longer desirable in the conduct of the business of the Company. Section 9.03 Consolidation, Merger or Sale of Assets of the Company. (a) The Company covenants that it will not merge into or consolidate with any other corporation or sell, convey or otherwise dispose of all or substantially all of its assets to any Person unless (i) either (A) the Company (or the Guarantor) shall be the continuing corporation or (B) the successor corporation (if other than the Company or the Guarantor) shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia, and such corporation shall expressly assume the due and punctual performance and observance of all of the covenants and conditions of this Indenture and each other Operative Document to which the Company is a party to be performed by the Company on the terms set forth herein or therein by supplemental agreements given by such successor corporation to the Trustee; (ii) such successor corporation shall make such filings and recordings as shall be necessary, desirable or otherwise required to evidence such reorganization, consolidation, merger, sale, conveyance or other disposition; (iii) immediately after giving effect to such transaction, no Indenture Default or Indenture Event of Default shall have occurred and be continuing solely as a result of such consolidation, merger, sale, conveyance or other disposition and the Company shall have delivered to the Trustee an Officer's Certificate to such effect; (iv) in the event that the Company is not the surviving corporation, the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that (x) such consolidation, merger, sale, conveyance or other disposition and the assumption agreement described in clause (i)(B) above comply with such clause (and in the case of such certificate, clause (iii) of this Section 9.03(a)), (y) the assumption agreement described in clause (i)(B) above is a legal, valid and binding obligation of such successor corporation, and enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium and other similar laws and equitable principles affecting the enforcement of creditors' rights generally, and (z) all conditions precedent herein provided for relating to such transactions have been complied with. (b) In case of any such merger, consolidation, sale, conveyance or other disposition and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if it had been named herein as the party of the first part. 27 Section 9.04 Annual Statements as to Compliance by the Company. The Company covenants and agrees to deliver to the Trustee on or before a date not more than 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officer's Certificate stating as to the officer signing such certificate, whether or not to the best of such officer's knowledge the Company is in compliance with all of the terms, provisions and conditions hereof, and, if the Company shall be in default, specifying all such defaults and the nature hereof, of which such officer may have knowledge. Section 9.05 Notices of Indenture Defaults. Promptly after becoming aware of the existence of the occurrence of an Indenture Default or an Indenture Event of Default, the Company shall give notice thereof to the Trustee. Section 9.06 Liens. The Company shall not, directly or indirectly, create, incur, assume, permit, or suffer to exist any Lien on or with respect to any Item of Equipment, title thereto or any interest therein or with respect to any Lease, any interest therein except (a) the rights of the Trustee as provided in this Indenture, (b) Liens for Taxes either not yet due and payable or being contested in good faith by appropriate proceedings, (c) materialmen's, mechanics', workmen's, repairmen's, employees' or other like Liens arising in the ordinary course of business for amounts of payment of which is either not yet delinquent or is being contested in good faith by appropriate proceedings, (d) Liens (other than Liens for Taxes) arising out of judgments or awards against the Company with respect to which an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves have been provided or other appropriate provisions have been made and with respect to which there shall have been secured a stay of execution pending such appeal or proceeding for review, (e) the interests of lessees (or permitted sublessees) under the Leases, and (f) salvage or similar rights of insurers under insurance policies maintained pursuant to Section 9.09 hereof. The Company will promptly, at its own expense, take such action as may be necessary by bonding or otherwise duly to discharge any such Lien not excepted above if the same shall arise at any time. Section 9.07 Maintenance; Compliance with Laws; Possession; Identification Marks. (a) Maintenance. The Company, at its own expense, shall maintain, service and keep each Item of Equipment (i) according to prudent industry practice in good working order and in good physical condition for railcars of a similar age and usage, normal wear and tear excepted, (ii) in accordance in all material respects with applicable manufacturer's warranties, and (iii) in the same manner as employed by the Company for similar items of equipment owned or leased by it. (b) Compliance with Laws, Etc. The Company agrees to (i) maintain and service each Item of Equipment in compliance with all Applicable Laws and (ii) make alterations and modifications to each Item of Equipment as are required by all Applicable Laws. (c) Possession. The Company may lease any Item of Equipment to any user incorporated in the United States of America (or any state thereof or the District of Columbia), Mexico or Canada for use upon railroad lines located in the United States of America, Mexico or Canada. No such lease or other relinquishment of possession of any Item of Equipment shall in any way discharge or diminish any of the Company's obligations to the Trustee hereunder or 28 under any other Operative Document for which obligations the Company shall be and remain primarily liable as a principal and not as a surety. (d) Identification Marks. With respect to each Item of Equipment subject to the Lien of this Indenture on the Closing Date, the Company has caused and, on or prior to the date on which an Indenture Supplement is executed and delivered in respect of a Replacement Item of Equipment pursuant to Section 9.11 or 9.14, the Company shall cause each Item of Equipment to be numbered with its road number and reporting mark set forth in the Indenture Supplement describing such Item of Equipment and from and after each such date the Company shall keep and maintain, plainly, distinctly, permanently and conspicuously marked by a plate or stencil printed in contrasting colors upon each side of each Item of Equipment, in letters not less than one inch in height, a legend substantially as follows: "OWNERSHIP SUBJECT TO A SECURITY AGREEMENT FILED WITH THE SURFACE TRANSPORTATION BOARD", with appropriate changes thereof and additions thereto as from time to time may be required by law in order to protect the rights of the Trustee under this Indenture. The Company shall not change the identification number of any Item of Equipment unless and until (i) a statement of new number or numbers to be substituted therefor shall have been filed with the Trustee and duly filed, recorded or deposited, as the case may be, by the Company in all public offices where this Indenture shall have been filed, recorded or deposited and (ii) the Company shall have furnished the Trustee with an opinion of counsel to the effect that such statement has been so filed, recorded or deposited, and that no other filing, recordation, deposit or giving of notice with or to any federal, District of Columbia, state, provincial or local government or agency thereof is necessary to protect the rights of the Trustee in such Item of Equipment. Section 9.08 Replacement of Parts. The Company, at its own cost and expense, shall replace or cause to be replaced all Parts which may from time to time be incorporated or installed in or attached to any Item of Equipment and which may from time to time become worn out, lost, stolen or destroyed. Section 9.09 Insurance. The Company will at all times, as part of an insurance program including appropriate risk retention and self-insurance, and at its own expense, cause to be carried and maintained casualty insurance and public liability insurance with financially sound and reputable insurers of recognized responsibility in respect of the Items of Equipment in such amounts, against such risks and on such terms and conditions as is customarily obtained by the Company in respect of similar equipment owned by it. The Company will forthwith give notice to the Trustee of the cancellation of any such insurance, and, promptly upon obtaining such insurance but in no event later than 30 days after such cancellation, the Company will give to the Trustee a certificate reflecting the replacement of insurance required to be maintained pursuant to this Section 9.09. The Company shall deliver to the Trustee prior to the Closing Date original or duplicate policies or certificates of insurance in form satisfactory to the Trustee evidencing all insurance then required to be maintained by the Company hereunder, and thereafter, within 30 days after the issuance of any additional policies or amendments or supplements to any of such policies, the Company will deliver, or cause to be delivered, the same (or certificates of the insurers under such policies evidencing the same) to the Trustee, and the Company shall, not later than 30 days prior to the expiration of any policy, deliver certificates of the insurers evidencing the replacement thereof. 29 Section 9.10 Age of Equipment. No Item of Equipment shall be more than 25 years old. Section 9.11 Replacement of Items of Equipment upon Event of Loss. (a) Upon the occurrence of an Event of Loss with respect to an Item of Equipment, the Company shall notify the Trustee of such occurrence within 60 days after the Company obtains actual knowledge of such occurrence. Within 60 days after the Company so notifies the Trustee of the occurrence of such Event of Loss, the Company shall give the Trustee notice of its election to perform one of the following options (it being agreed that if the Company shall not have given such notice of election within such 60-day period, the Company shall be deemed to have elected to perform the option set forth in the following clause (ii)). The Company may elect either to: (i) not more than 60 days after notice of its election to the Trustee pursuant to the immediately preceding sentence (such 60th day being the "Loss Replacement Date"), replace the Item of Equipment subject to the Event of Loss with railcars having the same or greater Fair Value; or (ii) on the first Payment Date occurring at least 30 days after notice of its election to the Trustee pursuant to the immediately preceding sentence on which the aggregate principal amount of Equipment Notes to be redeemed pursuant to Section 2.12(b) (together with equipment notes to be redeemed pursuant to Section 2.12(b) of each of the Other Indentures) shall be equal to or greater than $2,000,000 (such Payment Date being the "Loss Redemption Date"), redeem the Equipment Notes in accordance with Section 2.12(b). (b) If the Company elects to substitute a Replacement Item of Equipment pursuant to clause (i) above, the Company shall, at its sole expense, not later than the Loss Replacement Date: (i) deliver to the Trustee, (A) for execution pursuant to Section 5.07, an Indenture Supplement covering the Replacement Item of Equipment and the related Lease, if any, duly executed by the Company and the Guarantor, and a Memorandum of Trust covering the Replacement Item of Equipment, duly executed by the Company and the Guarantor, and (B) a Memorandum of Lease covering the Lease, if any, relating to such Replacement Item of Equipment and cause such executed Memorandum of Trust and Memorandum of Lease, if any, to be duly filed and recorded with the STB pursuant to 49 U.S.C. Section 11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act; (ii) cause a financing statement or statements with respect to the Replacement Item of Equipment and the related Lease, if any, to be filed in such place or places as are necessary in order to evidence and perfect the interests of the Trustee therein; (iii) furnish the Trustee with evidence of compliance with the insurance provisions of Section 9.09 with respect to the Replacement Item of Equipment substantially similar to that originally furnished to the Trustee with respect to the replaced Item of Equipment pursuant to this Indenture; 30 (iv) furnish the Trustee with an Officer's Certificate certifying that, upon consummation of such replacement, no Indenture Default or Indenture Event of Default which arises solely as a result of such replacement will exist hereunder; (v) furnish the Trustee with an Officer's Certificate stating (A) that the Replacement Item of Equipment is free of all Liens (other than Liens permitted under Section 9.06) and has a Fair Value at least equal to the Fair Value of the Item of Equipment so replaced immediately prior to the occurrence of such Event of Loss (which Certificate shall include the basis for determination of such Fair Value), (B) whether such Replacement Item of Equipment is then subject to a lease and, if so, the name of the lessee and such other information as the Trustee may reasonably request, (C) that each Replacement Item of Equipment has been marked in accordance with Section 9.07(d), and (D) that, in the opinion of the signer, all conditions precedent provided for in this Indenture relating to such replacement have been complied with; and (vi) take such other actions and furnish such other certificates and documents as may be necessary or as the Trustee may reasonably require in order to assure that the Replacement Item of Equipment and the related Lease, if any, are duly and properly subjected to the Lien of this Indenture, to the same extent as the Item of Equipment replaced thereby and the related Lease, if any. Section 9.12 Scope of Business Activities Abroad. The Company shall not engage in any business activities within the territory of Mexico which might result in the Company being subject to the Mexican Bankruptcy Law ("Ley de Concursos Mercantiles") without first creating and perfecting a first priority security interest in all Items of Equipment held or owned by the Company within the territory of Mexico and delivering to the Trustee an opinion of Mexican counsel satisfactory to the Trustee as to the perfection and priority of such security interest and evidence of such filings and recordations as may be necessary in the opinion of such counsel to establish and perfect such security interest. Section 9.13 Filings and Opinions. (a) On or prior to the Closing Date the Company will cause the Memorandum of Trust and the Memorandum of Lease, each dated the Closing Date, covering the Items of Equipment and related Leases described in the Indenture Supplement dated the Closing Date to be duly filed and recorded with the STB pursuant to 49 U.S.C. Section 11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act. The Company will furnish to the Trustee evidence of such filing and recordation. (b) Each Indenture Supplement and Memorandum of Lease executed pursuant to Section 9.11(b) or 9.14 shall also cover all Leases not covered by any Memorandum of Lease previously filed as described in Section 9.13(a) or (b). Within 90 days of the end of each fiscal year of the Company, the Company shall deliver to the Trustee an Indenture Supplement for execution pursuant to Section 5.07, and a Memorandum of Lease (covering all Leases, if any, executed by the Company not covered by a Memorandum of Lease that has been filed as described in this sentence or under Section 9.13(a)) duly executed by the Company and cause such Memorandum of Lease to be duly filed and 31 recorded with the STB pursuant to 49 U.S.C. Section 11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transport Act; provided that if any Memorandum of Lease has been so filed pursuant to Section 9.11 or 9.14 during the three-month period immediately following the end of such fiscal year, no filing of any additional Memorandum of Lease or delivery of such an Indenture Supplement will be required pursuant to this paragraph with respect to such fiscal year. The Company shall also cause a financing statement or statements with respect to the Leases covered by such Indenture Supplement to be filed in such place or places as are necessary in order to evidence and perfect the interests of the Trustee therein and shall deliver to the Trustee evidence of such filings. (c) The Company agrees to record and file in accordance with the terms of this Indenture, at its own expense, each Memorandum of Trust and Memorandum of Lease and financing statements (and continuation statements when applicable) with respect to the Indenture Estate now existing or hereafter created meeting the requirements of applicable law in such manner and in such jurisdictions as are necessary to perfect and maintain the perfection of the Lien created hereunder in the Indenture Estate, and to promptly deliver a filed stamped copy of each such financing statement or other evidence of filing or recordation to the Trustee. (d) The Company shall deliver to the Trustee (i) within 90 days after the end of each fiscal year of the Company, an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, as to the due filing of financing statements with the appropriate filing offices and the due filing with the STB pursuant to 49 U.S.C. Section 11301 and the deposit in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act of each Memorandum of Trust and each Memorandum of Lease covering Replacement Items of Equipment subject to the Lien of this Indenture and Leases executed by the Company, in each case, since the later of the Closing Date and the date of the last such Opinion of Counsel delivered to the Trustee and (ii) at any time that the number of Replacement Items of Equipment not covered by such an Opinion of Counsel totals at least 25, an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee, as to the due filing of financing statements with the appropriate filing offices and the due filing with the STB pursuant to 49 U.S.C. Section 11301 and deposit in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act of each Memorandum of Trust and each Memorandum of Lease covering such Replacement Items of Equipment and Leases. (e) If at any time Mexico, one or more states in Mexico, or any of the Canadian provinces establishes a state or provincial or other system for filing and perfecting the security interests of entities such as the Trustee, at the time that the Company takes such action with respect to other equipment similar to the Equipment and also upon the request of the Trustee (given at the request of a Majority in Interest), the Company shall cause any and all of the Operative Agreements to be recorded with or under such system and shall cause all other filings and recordings and all such other action required under such system to be effected and taken, in order to perfect and protect the right, title and interests of the Trustee. Section 9.14 Substitution and Replacement of Equipment. (a) The Company, at its option, may, at any time and from time to time, request the Trustee to release an Item of Equipment from the Lien of this Indenture, and upon receipt of a Company Order requesting such release, the Trustee shall execute and deliver an appropriate instrument furnished by the 32 Company to the Trustee releasing such Item of Equipment from the Lien of this Indenture; provided that no Item of Equipment shall be so released unless, in accordance with this Section, simultaneously there shall be subject to the Lien of this Indenture railcars having the same or greater Fair Value as the Item of Equipment to be so released by the Trustee. (b) At or prior to the time of delivery of any Company Order for release of any Item of Equipment pursuant to this Section, the Company shall take all the actions specified in Section 9.11(b)(i) through (vi) (provided that, except in the case of a substitution resulting from the exercise by a lessee of its purchase option with respect to an Item of Equipment under a Lease, the Officer's Certificate provided pursuant to Section 9.11(b)(iv) shall certify that upon consummation of such replacement, no Indenture Event of Default will exist hereunder) with respect to each Replacement Item of Equipment and the related Lease, if any, and deliver to the Trustee an Officer's Certificate stating the Fair Value, as of the date specified in such Certificate, of each Item of Equipment so to be released by the Trustee (which Certificate shall include the basis for such determination). ARTICLE X GUARANTEE Section 10.01 Guarantee. (a) The Guarantor hereby unconditionally guarantees to each Noteholder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Equipment Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal of, premium, if any, and interest on the Equipment Notes will be promptly paid in full when due, and interest on the overdue principal of, premium, if any, and interest on the Equipment Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Equipment Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor will pay or perform the same immediately. The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. (b) The Guarantor hereby agrees that its obligations hereunder are absolute and unconditional, irrespective of the validity, regularity or enforceability of the Equipment Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Noteholder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The obligations of the Guarantor hereunder shall remain in full force and effect until satisfaction of all obligations guaranteed by it hereunder and, without limiting the generality of the foregoing, to the extent not 33 prohibited by applicable law, shall not be released, discharged or otherwise affected by the existence of any claims, set-off, defense, counterclaim or other rights that the Guarantor may have at any time and from time to time against any Person, whether in connection herewith or with any unrelated transaction. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Guarantee will not be discharged except by complete performance of the obligations contained in the Equipment Notes and this Indenture. (c) If any Noteholder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantor, any amount paid by either to the Trustee or such Noteholder, this Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect. (d) The Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Noteholders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Noteholders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article IV hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such obligations as provided in Article IV hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purpose of this Guarantee. (e) The delivery of any Equipment Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantor. Section 10.02 Consolidation, Merger or Sale of Assets of Guarantor. (a) The Guarantor covenants that it will not merge into or consolidate with any other corporation or sell, convey or otherwise dispose of all or substantially all of its assets to any Person unless (i) either (A) the Guarantor shall be the continuing corporation or (B) the successor corporation (if other than the Guarantor) shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia, and such corporation shall expressly assume the due and punctual performance and observance of all of the covenants and conditions of this Indenture, the Equipment Notes, and the Guarantee to be performed by the Guarantor on the terms set forth herein or therein by supplemental agreements given by such successor corporation to the Guarantor; (ii) such successor corporation shall make such filings and recordings as shall be necessary, desirable or otherwise required to evidence such reorganization, consolidation, merger, sale, conveyance or other disposition; (iii) immediately after giving effect to such transaction, no Indenture Default or Indenture Event of Default shall have occurred and be continuing solely as a result of such consolidation, merger, sale, conveyance or other disposition and the Guarantor shall have delivered to the Trustee an Officer's Certificate to such effect; (iv) in the event that the Guarantor is not the surviving corporation, the Guarantor shall have delivered to the Trustee an Officer's Certificate and an 34 opinion of counsel to such successor corporation, each stating that (x) such consolidation, merger, sale, conveyance or other disposition and the assumption agreement described in clause (i)(B) above comply with such clause (and in the case of such certificate, clause (iii) of this Section 10.02(a)), (y) the assumption agreement described in clause (i)(B) above is a legal, valid and binding obligation of such successor corporation, and enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium and other similar laws and equitable principles affecting the enforcement of creditors' rights generally, and (z) all conditions precedent herein provided for relating to such transactions have been complied with. (b) In case of any such merger, consolidation, sale, conveyance or other disposition and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Guarantor hereunder, with the same effect as if it had been named herein as the party of the first part. ARTICLE XI MISCELLANEOUS Section 11.01 Release of Property. With respect to each Item of Equipment, this Indenture and the trusts created hereby shall terminate without further action and this Indenture shall be of no further force or effect upon the earliest to occur of (i) the release of such Item of Equipment from the Lien of this Indenture by the Trustee pursuant to Section 2.12(a), 9.11 or 9.14, (ii) the payment in full of the principal amount of, interest and any premium on, all Equipment Notes outstanding hereunder and all other sums payable to the Trustee and the Holders of the Equipment Notes hereunder and under such Equipment Notes, and (iii) the date on which all conditions to the defeasance or covenant defeasance of the Equipment Notes under Section 11.02(d) are satisfied. The Trustee shall, upon the written request of the Company, execute and deliver to, and at the expense of, the Person specified by the Company, an appropriate instrument (in due form for recording) furnished by such Person to the Trustee, releasing the appropriate Items of Equipment from the Lien of this Indenture. Section 11.02 Defeasance and Covenant Defeasance. (a) The Company may, at its option evidenced by a resolution of its board of directors (or a duly constituted committee thereof) set forth in an Officer's Certificate, at any time, elect to have either Section 11.02(b) or 11.02(c) be applied to all outstanding Equipment Notes upon compliance with the conditions set forth below in Section 11.02(d). (b) Upon the Company's exercise under Section 11.02(a) of the option applicable to this Section 11.02(b), each of the Company and the Guarantor shall be deemed to have been discharged from its obligations with respect to all outstanding Equipment Notes (including the Guarantee) on the date the conditions set forth in Section 11.02(d) are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Equipment Notes (including the Guarantee), which shall thereafter be deemed to be "outstanding" only for the purposes of Section 11.02(e) and the other Sections of this 35 Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Equipment Notes, the Guarantee and this Indenture (and the Trustee, on demand and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Equipment Notes to receive, solely from the trust fund described in Section 11.02(d), payments in respect of the principal of and premium and interest on, such Equipment Notes when such payments are due, (ii) the Company's obligations with respect to such Equipment Notes under Sections 2.03, 2.04, 2.05 and 2.06, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 11.02. (c) Upon the Company's exercise under Section 11.02(a) of the option applicable to this Section 11.02(c), the Company shall be released from its obligations under any covenant contained in Sections 9.04 through 9.14 and the Guarantor shall be released from its obligation under Section 10.02 with respect to the outstanding Equipment Notes on and after the date the conditions set forth in Section 11.02(d) are satisfied (hereinafter, "covenant defeasance"), and the Equipment Notes shall thereafter be deemed not to be "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder. For this purpose, covenant defeasance means that, with respect to the outstanding Equipment Notes and the Guarantee, the Company and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute an Indenture Default or an Indenture Event of Default under Section 4.01, but, except as specified above, the remainder of this Indenture and such Equipment Notes shall be unaffected thereby. (d) The following shall be the conditions to application of either Section 11.02(b) or Section 11.02(c): (i) The Company shall have irrevocably deposited with the Trustee as funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Noteholders, (A) money in an amount, (B) U.S. Government Obligations that, through the payment of interest and principal in respect thereof in accordance with their terms, will provide (not later than one Business Day before the due date of any payment) money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay the outstanding principal amount of and interest on all the Equipment Notes on the dates such amounts are due. (ii) In the case of an election under Section 11.01(b), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that there has been a change in tax law since the date hereof or there has been published by the Internal Revenue Service a ruling to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Noteholders and the holders of the Pass Through Certificates will not recognize income, gain or loss for United States Federal income tax purposes as a result 36 of the exercise by the Company of its option under Section 11.02(b) and will be subject to United States Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such option had not been exercised. (iii) In the case of an election under Section 11.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Noteholders and the holders of the Pass Through Certificates will not recognize income, gain or loss for United States Federal income tax purposes as a result of the exercise by the Company of its option under Section 11.02(c) and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such option had not been exercised. (iv) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such defeasance trust does not constitute an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and after the passage of 90 days following such deposit, such defeasance trust will not be subject to Section 547 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law. (v) All other amounts then due and payable hereunder have been paid. (vi) Such deposit will not result in a breach or violation of, or constitute a default or event of default under any other agreement or instrument to which the Company is a party or by which it is bound. (vii) No Indenture Event of Default or Indenture Default shall have occurred and be continuing on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit. (viii) The Company shall have delivered to the Trustee a letter from each of Moody's Investor Service, Inc. and Standard & Poor's Rating Services, a division of the McGraw-Hill Companies, Inc. to the effect that immediately after giving effect to such defeasance or covenant defeasance, as the case may be, its respective rating of the Pass Through Certificates will not be withdrawn, suspended, subject to Creditwatch, or lowered from its rating in effect immediately before such defeasance or covenant defeasance. (ix) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance or covenant defeasance (as the case may be) of this Indenture have been complied with. (e) All monies and U.S. Government Obligations deposited with the Trustee pursuant to Section 11.02(d) shall be held in trust and applied by it, in accordance with the provisions of the Equipment Notes and this Indenture, to the payment to the Noteholders of all sums due and to become due thereon for principal and interest, but such money need not be segregated from other funds except to the extent required by law. 37 (f) The Trustee shall promptly pay or return to the Company upon request of the Company any money or U.S. Government Obligations held by it at any time that are not required for the payment of the amounts described above in Section 11.02(e) on the Equipment Notes for which money or U.S. Government Obligations have been deposited pursuant to Section 11.02(d). (g) If the Trustee is unable to apply any money in accordance with Section 11.02(e) by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company and the Guarantor under this Indenture and the Equipment Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.02(b) or 11.02(c), as the case may be, until such time as the Trustee is permitted to apply all such money in accordance with Section 11.02(e); provided, however, that if the Company makes any payment of principal of or premium or interest on, any Equipment Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Noteholders to receive such payment from the money held by the Trustee. Section 11.03 No Legal Title to Indenture Estate in Holders. No Holder of an Equipment Note shall have legal title to any part of the Indenture Estate. The rights of all Holders of Equipment Notes derive solely from this Indenture (including all supplements to this Indenture) and the Indenture Estate and the Holders of the Equipment Notes derive no interest in the Items of Equipment other than their beneficial interest in the Indenture Estate. No transfer, by operation of law or otherwise, of any Equipment Note or other right, title and interest of any Holder of an Equipment Note in and to the Indenture Estate or hereunder shall operate to terminate this Indenture or the trusts hereunder or entitle any successor or transferee of such Holder to an accounting or to the transfer to it of legal title to any part of the Indenture Estate. Section 11.04 Sale of Items of Equipment by Trustee Is Binding. Any sale or other conveyance of any Items of Equipment by the Trustee made pursuant to the terms of this Indenture shall bind the Holders of the Equipment Notes and the Company and shall be effective to transfer or convey all right, title and interest of the Trustee, the Company and such Holders of the Equipment Notes in and to the Equipment. No purchaser or other grantee shall be required to inquire as to the authorization, necessity, expediency or regularity of such sale or conveyance or as to the application of any sale or other proceeds with respect thereto by the Trustee. Section 11.05 Indenture and Equipment Notes for Benefit of the Company, Guarantor, Trustee and Holders Only. Nothing in this Indenture, whether express or implied, shall be construed to give to any Person other than the Company, the Guarantor, the Trustee and the Holders of the Equipment Notes any legal or equitable right, remedy or claim under or in respect of this Indenture or any Equipment Note. Section 11.06 Further Assurances. The Company and the Guarantor will duly execute and deliver to the Trustee such further documents and assurances and take such further action as may be necessary or as the Trustee may from time to time reasonably request or as may be required by applicable law or regulation in order to effectively carry out the intent and purpose of this Indenture and to establish and protect the rights and remedies created or intended to be created in favor of the Trustee hereunder. 38 Section 11.07 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer's Certificate stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (i) a statement that the individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of such individual, such condition or covenant has been complied with. Section 11.08 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters and any such Person may certify or give an opinion as to such matters in one or several documents. Any Opinion of Counsel stated to be based on the opinion of other counsel shall be accompanied by a copy of such other opinion. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Section 11.09 Acts of Holders. (a) Any direction, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. 39 (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or such other officer and where such execution is by an officer of a corporation or association or a member of a partnership, on behalf of such corporation, association or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner which the Trustee deems sufficient. (c) Any action by the Holder of any Equipment Note shall bind the Holder of every Equipment Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such action is made upon such Equipment Note. Section 11.10 Notices. Unless otherwise expressly specified or permitted by the terms hereof, all notices required or permitted under the terms and provisions hereof shall be in writing, and shall become effective when deposited in the United States mail, with proper postage for first class registered or certified mail prepaid, when delivered personally, or, if promptly confirmed by mail as provided above, when dispatched by telecopy or other written telecommunication, addressed (i) if to the Trustee, at its office at 101 Barclay Street, New York, New York 10286, Attention: Corporate Trust Administration, Telecopy/Telefax: (212)896-7298, (ii) if to any Holder of Equipment Notes, at such address set forth in the Equipment Note Register, (iii) if to the Company or the Guarantor, at 2525 Stemmons Freeway, Dallas Texas 75207, Attention: General Counsel, Telecopy/Telefax: (214) 589-8824, and (iv) if to any of the foregoing Persons, at such other address as such Person shall from time to time designate by written notice to the other parties hereto in accordance with this Section 11.09; provided that notices to the Trustee shall not become effective until actually received by the Trustee. Notwithstanding any other provision hereof, if any payment of principal of, premium, if any, and interest on the Equipment Notes is not received by the Trustee when due, the Trustee shall on the next succeeding Business Day use its reasonable best efforts to give immediate written notice by telecopy or its equivalent or by telephone (confirmed in writing) to each holder of an Equipment Note and the Company. Section 11.11 Severability. Any provision of this Indenture which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or enforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Section 11.12 Separate Counterparts. This Indenture may be executed in any number of counterparts (and each of the parties hereto shall not be required to execute the same counterpart). Each counterpart of this Indenture including a signature page executed by each of the parties hereto shall be an original counterpart of this Indenture, but all of such counterparts together shall constitute one instrument. 40 Section 11.13 Successors and Assigns. All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, the Company and its successors and permitted assigns, the Guarantor and its successors and permitted assigns, and the Trustee and its successors and permitted assigns, and each holder of any Equipment Note, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by any holder of an Equipment Note shall bind the successors and assigns of such holder. Section 11.14 Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. Section 11.15 Governing Law. THIS INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. Section 11.16 No Partnership. All parties to this Indenture specifically disavow any intent to form a partnership or joint venture for U.S. federal income tax purposes or otherwise, and agree not to make any filings or take any positions inconsistent with such intent. 41 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers or attorneys-in-fact, as the case may be, thereunto duly authorized, as of the day and year first above written. THE BANK OF NEW YORK, Trustee By ------------------------------ Name: Title: TRINITY INDUSTRIES LEASING COMPANY, Company By ------------------------------ Name: Title: TRINITY INDUSTRIES, INC., Guarantor By ------------------------------ Name: Title: 42 STATE OF ) ) ss: COUNTY OF ) On this __ day of February, 2002 before me personally appeared ________________, to me personally known, who being by me duly sworn, says that he is the ________________ of The Bank of New York, that the foregoing instrument was signed on February __, 2002 on behalf of said banking corporation by authority of its Board of Directors, and he acknowledged that the execution of the foregoing instrument was the free act and deed of said banking corporation. Sworn to before me this ___ day of February, 2002 (NOTARIAL SEAL) -------------------------- Notary Public My Commission Expires: STATE OF ) ) ss: COUNTY OF ) On this, the __ day of February, 2002, before me, a notary public, personally appeared __________, to me personally known, who being by me duly sworn, says that he is the __________ of Trinity Industries Leasing Company, that the foregoing instrument was executed on February __, 2002 on behalf of said corporation by authority of its Board of Directors, and he acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. Sworn to before me this ___ day of February, 2002, (NOTARIAL SEAL) -------------------------- Notary Public My Commission Expires: STATE OF ) ) ss: COUNTY OF ) On this, the __ day of February, 2002, before me, a notary public, personally appeared __________, to me personally known, who being by me duly sworn, says that he is the __________ of Trinity Industries, Inc. that the foregoing instrument was executed on February __, 2002 on behalf of said corporation by authority of its Board of Directors, and he acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. Sworn to before me this ___ day of February, 2002, (NOTARIAL SEAL) -------------------------- Notary Public My Commission Expires: APPENDIX A DEFINED TERMS The definitions stated herein apply equally to both the singular and plural forms of the terms defined. "Affiliate" of any specified Person shall mean any other Person which directly or indirectly controls, or is controlled by, or is under a common control with, such Person. For the purpose of this definition, the term "control" when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" shall have meanings correlative to the foregoing. "Agent" shall mean any Registrar, Paying Agent, or authenticating agent. "Agreement", "this Agreement", "hereof", "hereby", or any other like term means, unless the context requires otherwise, the agreement in which such term is used, including all annexes, exhibits, schedules, and supplements thereto, as such agreement may be amended, modified or supplemented from time to time. "Applicable Laws" shall mean all rules, regulations and orders issued by the STB, the Department of Transportation and any other government or instrumentality, subdivision or agency thereof having jurisdiction and relating to the registration, operation, maintenance and service of the Items of Equipment. "Bankruptcy Code" shall mean the United States Bankruptcy Reform Act of 1978, as amended from time to time, 11 U.S.C. Section 101 et seq. "Bill of Sale" shall mean, with respect to any Item of Equipment, a full warranty bill of sale executed by the manufacturer thereof in favor of the Company for such Item of Equipment. "Business Day" shall mean any day other than a Saturday, Sunday or a day on which commercial banking institutions are authorized or required by law, regulation or executive order to be closed in New York, New York, Dallas, Texas or the city in which the Trustee maintains its Corporate Trust Office. "Closing Date" shall mean February 15, 2002. "Code" shall mean the Internal Revenue Code of 1986, as in effect on the date hereof or as amended from time to time. App-1 "Company" shall mean Trinity Industries Leasing Company, a Delaware corporation, and its successors and permitted assigns. "Company Order" shall mean a written request or order signed in the name of the Company by an Officer thereof. "Corporate Trust Office" shall mean, with respect to the Trustee, the Corporate Trust Administration department of such trustee in the city at which at any particular time its corporate trust business shall be principally administered. "Equipment" or "Equipment Group" shall mean collectively, the Items of Equipment subject to the Lien of the Indenture, as described in one or more Indenture Supplements to the Indenture. "Equipment Cost" shall mean, for any Item of Equipment, the gross amount paid by the Company to the manufacturer thereof, including all applicable sales taxes, and delivery charges as invoiced by such manufacturer to the Company. "Equipment Note Register" shall have the meaning provided in Section 2.04. "Equipment Notes" shall have the meaning specified in the first "Whereas" clause hereof. "Event of Loss" shall mean with respect to any property any of the following events with respect to such property: (i) damage or contamination that, in the reasonable judgment of the Company (as evidenced by an Officer's Certificate), makes repair uneconomic or renders such property unfit for commercial use; (ii) theft or disappearance for a period in excess of six months or destruction that constitutes a total loss; (iii) any damage to such property which results in an insurance settlement with respect to such property on the basis of a total loss; (iv) the condemnation or requisition of title to such property by the Government or any other governmental authority; (v) the permanent return of such property to the manufacturer thereof pursuant to any patent indemnity provisions; (vi) as a result of any amendment, addition or other change in Applicable Law or regulations, such property is rendered permanently unfit for commercial use; or (vii) the confiscation, seizure or requisition of use of such property by the Government or any other governmental authority for a period in excess of 365 days. "Fair Value" shall mean, with respect to any Item of Equipment or Replacement Item of Equipment, the Equipment Cost of such Item of Equipment, less 1/25th of such Equipment Cost for each full period of one year elapsed between the date such Equipment was first put into service and the date of the Company's election to effect a replacement of such Equipment. "Government" shall mean the government of any country or state or any political subdivision thereof and any instrumentality, subdivision or agency thereof. "Guarantee" shall mean the guarantee by the Guarantor pursuant to Article X. App-2 "Guarantor" shall mean Trinity Industries, Inc., a Delaware corporation, and its successors and permitted assigns. "Holder" or "Noteholder" shall mean the registered holder of any Equipment Note. "Indenture" or "Trust Indenture" shall mean that certain [C] Trust Indenture and Security Agreement dated as of February 15, 2002 among the Company, the Guarantor and The Bank of New York, as Trustee, and all annexes, supplements and exhibits thereto, all as amended, supplemented or otherwise modified from time to time, including supplementation by each Indenture Supplement executed and delivered pursuant thereto. "Indenture Default" shall mean any event that after the giving of notice or lapse of time or both would become an Indenture Event of Default. "Indenture Estate" shall have the meaning specified in the Granting Clause of the Indenture. "Indenture Event of Default" shall have the meaning specified in Section 4.01 of the Indenture. "Indenture Supplement" shall mean each Indenture Supplement, substantially in the form of Exhibit A to the Indenture, to be entered into by the Company and the Trustee, covering the Items of Equipment and Leases referenced therein, any amendment to such Indenture Supplement and any subsequent Indenture Supplement executed and delivered in connection with a Replacement Item of Equipment or Lease. "Interest Payment Date" shall mean each semiannual interest payment date on February 15 and August 15 of each year, commencing August 15, 2002. "Item of Equipment" shall mean (i) each railcar listed by the Company's road numbers and reporting marks in an Indenture Supplement executed and delivered under the Indenture; and (ii) any and all Parts incorporated or installed in or attached to such and any and all Parts removed from such railcar. The term "Items of Equipment" also shall mean, as of any date of determination, all Items of Equipment then subject to the Lien of the Indenture. "Lease" shall mean, with respect to each Item of Equipment, the lease agreement between the Company and the lessee thereunder providing for the lease of such Item of Equipment, but shall specifically exclude the provisions of such lease agreement not relating to such Item of Equipment (including, without limitation, any rents payable on any items of equipment not subject to the lien of the Indenture). "Lien" shall mean any mortgage, pledge, charge, security interest, lien, encumbrance, lease, assignment, exercise of rights or claim. "Loss Redemption Date" shall have the meaning provided in Section 9.11(a). "Loss Replacement Date" shall have the meaning provided in Section 9.11(a). App-3 "Majority in Interest" as of a particular date of determination shall mean with respect to any action or decision of the holders of the Equipment Notes, the holders of more than 50% in aggregate principal unpaid amount of the Equipment Notes, if any, then outstanding which are affected by such decision or action. "Memorandum of Lease" shall mean each Memorandum of Lease, substantially in the form of Exhibit E to the Indenture, covering the Leases referenced therein, and any amendment or other modification thereto, including any modification or substitution therefor required by any Applicable Law. "Memorandum of Trust" shall mean each Memorandum of [C] Trust Indenture and Security Agreement and [C] Trust Indenture Supplement, substantially in the form of Exhibit D to the Indenture covering the Items of Equipment referenced therein, and any amendment or other modification thereto, including any modification or substitution therefor required by any Applicable Law. "Offering Memorandum" shall mean the Offering Memorandum relating to the offering of the Pass Through Certificates. "Officer" shall mean, with respect to the Company or the Guarantor, the Chairman of the Board, the Vice Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, a Vice President, the Treasurer or the Secretary of the Company or the Guarantor, as the case may be. "Officer's Certificate" shall mean a certificate signed (i) in the case of a corporation by the Chairman of the Board, the Vice Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of such corporation, and (ii) in the case of a commercial bank or trust company, the Chairman or Vice Chairman of the Executive Committee or the Treasurer, any Trust Officer, any Vice President, any Executive or Senior or Second or Assistant Vice President, or any other officer or assistant officer customarily performing the functions similar to those performed by the persons who at the time shall be such officers, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. "Operative Documents" shall mean each of the Indenture, each Indenture Supplement and each Bill of Sale. "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be (a) an attorney employed by the Company or the Guarantor, or (b) such other counsel designated by the Company, whether or not such counsel is an employee of the Company, and who shall be acceptable to the Trustee. "Other Indentures" shall mean the [A] Trust Indenture and Security Agreement and the [B] Trust Indenture and Security Agreement, each dated the date of the Indenture and among the Company, the Guarantor and the Trustee. App-4 "Part" or "Parts" shall mean all appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment of whatever nature that at any time of determination are incorporated or installed in or attached to an Item of Equipment. "Pass Through Certificates" shall mean the Trinity Industries Leasing Company 2002-1 Pass Through Trust Pass Through Certificates, Series 2002-1. "Paying Agent" shall have the meaning provided in Section 2.04. "Payment Date" shall mean each February 15 and August 15 of each year commencing August 15, 2002. "Permitted Liens" shall mean any Lien of the type described in clauses (a) through (f) of Section 9.06 of the Indenture. "Person" shall mean any individual, partnership, corporation, joint venture, limited liability company, limited liability partnership, trust, business trust, association, joint stock company, trust, unincorporated organization, or a government or any agency, instrumentality or political subdivision thereof. "Registrar" shall have the meaning provided in Section 2.04. "Replacement Item of Equipment" shall mean a railcar which shall have been subjected to the Lien of the Indenture pursuant to Section 9.11 or 9.14 of the Indenture, together with all Parts relating thereto. "Responsible Officer", when used with respect to the Trustee, shall mean any officer of the Trustee with direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. "Securities Act" shall mean the Securities Act of 1933, as amended. "Specified Investments" shall mean (a) direct obligations of the United States of America and agencies thereof for which the full faith and credit of the United States is pledged, (b) obligations fully guaranteed by the United States of America, (c) certificates of deposit issued by, or bankers' acceptances of, or time deposits with, any bank, trust company or national banking association incorporated or doing business under the laws of the United States of America or one of the States thereof having combined capital and surplus and retained earnings of at least five hundred million dollars ($500,000,000) (including the Trustee if such conditions are met), (d) commercial paper of companies (which may include the Company), banks, trust companies or national banking associations incorporated or doing business under the laws of the United States of America or one of the States thereof and in each case having a rating assigned to such commercial paper by Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies Inc. or Moody's Investors Service, Inc. or, if neither such organization shall rate such commercial paper at any time, by any nationally recognized rating organization in the United States of America) equal to the highest rating assigned by such organization, (e) purchase agreements with any financial institution having a combined capital and surplus of at least seven App-5 hundred and fifty million dollars ($750,000,000) fully collateralized by obligations of the type described in clauses (a) through (d) above and (f) money market funds having a rating in the highest investment category granted thereby by a recognized credit rating agency at the time of acquisition, including any fund for which the Trustee or an Affiliate of the Trustee serves as an investment advisor, administrator, shareholder servicing agent, custodian or subcustodian, notwithstanding that (i) the Trustee or an Affiliate of the Trustee charges and collects fees and expenses from such funds for services rendered (provided that such charges, fees and expenses are on terms consistent with terms negotiated at arm's length) and (ii) the Trustee charges and collects fees and expenses for services rendered pursuant to the Indenture; provided that if all of the above investments are unavailable, the entire amount to be invested may be used to purchase Federal Funds from an entity described in (c) above; and provided further that no investment shall be eligible as a "Specified Investment" unless the final maturity or date of return of such investment is 91 days or less from the date of purchase thereof. "STB" shall mean the Surface Transportation Board of the United States Department of Transportation and any agency or instrumentality of the United States government succeeding to its functions. "Taxes" shall mean any license, registration and filing fees and all taxes, withholdings, assessments, levies, imposts, duties or charges of any nature whatsoever, together with any penalties, fines or interest thereon or other additions thereto imposed, withheld, levied or assessed by any country or any taxing authority or governmental subdivision thereof or therein or by any international authority. "Trustee" shall have the meaning provided in the first paragraph of the Indenture. "U.S. Government Obligations" shall mean securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the Equipment Notes, and shall also include depository receipts issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt. App-6 EXHIBIT A to [C] Trust Indenture and Security Agreement FORM OF TRUST INDENTURE SUPPLEMENT NO. ____ This INDENTURE SUPPLEMENT No. _____, dated _____________________ (this "Indenture Supplement"), by and among TRINITY INDUSTRIES LEASING COMPANY, a Delaware corporation (the "Company"), TRINITY INDUSTRIES, INC., a Delaware corporation (the "Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the "Trustee"); WITNESSETH: WHEREAS, the [C] Trust Indenture and Security Agreement, dated as of February __, 2002 (as supplemented or modified from time to time, the "Indenture"), by and among the Company, the Guarantor and the Trustee, provides for the execution and delivery of Indenture Supplements thereto substantially in the form hereof which shall particularly describe the Items of Equipment and Leases, and shall specifically mortgage the Items of Equipment and assign the Leases to the Trustee; and WHEREAS, the Indenture relates to the Items of Equipment and the Leases relating to such Items of Equipment, all as described on Schedule 1 attached hereto and made a part hereof, and a counterpart of the Indenture is attached to and made a part of this Indenture Supplement; NOW, THEREFORE, in order to secure the prompt payment of the principal of, and premium, if any, and interest on all of the Equipment Notes from time to time outstanding under the Indenture and the performance and observance by the Company of all the agreements, covenants and provisions in the Indenture and in the Equipment Notes for the benefit of the holders of the Equipment Notes, subject to the terms and conditions of the Indenture, and in consideration of the premises and of the covenants contained in the Indenture and of the acceptance of the Equipment Notes by the holders thereof, and of the sum of $1.00 paid to the Company by the Trustee at or before the delivery hereof, the receipt whereof is hereby acknowledged, the Company, in accordance with the Granting Clause of the Indenture, has sold, assigned, transferred, pledged and confirmed, and does hereby sell, assign, transfer, pledge and confirm, the property comprising the Items of Equipment and the Leases described in Schedule 1 attached hereto and made a part hereof to the Trustee, its successors and assigns, in the trust created by the Indenture for the benefit of the holders from time to time of the Equipment Notes. To have and to hold all and singular the aforesaid property unto the Trustee, its successors and assigns, in trust for the benefit and security of the holders from time to time of the Equipment Notes and for the uses and purposes and subject to the terms and provisions set forth in the Indenture. A-1 This Indenture Supplement shall be construed as supplemental to the Indenture and shall form a part thereof, and the Indenture is hereby incorporated by reference herein and each is hereby ratified, approved and confirmed. This Indenture Supplement is being delivered in the State of New York. This Indenture Supplement may be executed by the Company and the Trustee in separate counterparts, each of which when so executed and delivered is an original, but all such counterparts shall together constitute but one and the same Supplement. AND FURTHER, the Company hereby acknowledges that the Items of Equipment and the Leases referred to in Schedule 1 attached hereto and made a part hereof have been delivered to the Company and are included in the property of the Company, subject to the pledge or mortgage thereof under the Indenture. IN WITNESS WHEREOF, each of the Company and the Guarantor has caused this Indenture Supplement to be duly executed by one of its duly authorized officers, as of the day and year first above written. TRINITY INDUSTRIES LEASING COMPANY By ------------------------------------- Name: Title: TRINITY INDUSTRIES, INC. By ------------------------------------- Name: Title: Acknowledged: THE BANK OF NEW YORK, as Trustee By ------------------------------------- Name: Title: Authorized Signatory A-2 SCHEDULE 1 to EXHIBIT A to [C] Trust Indenture and Security Agreement ITEMS OF EQUIPMENT [insert description of the Items of Equipment, including the Company's respective road numbers and reporting marks, and identification of the Leases] A-3 EXHIBIT B to [C] Trust Indenture and Security Agreement FORM OF EQUIPMENT NOTE THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED FOR SALE OR SOLD UNLESS EITHER REGISTERED UNDER THE SECURITIES ACT AND SUCH APPLICABLE STATE OR OTHER LAWS OR EXEMPTIONS FROM SUCH REGISTRATION REQUIREMENTS ARE AVAILABLE. TRINITY INDUSTRIES LEASING COMPANY 7.755% EQUIPMENT NOTE No. Date: ------ $ Maturity Date: --------- TRINITY INDUSTRIES LEASING COMPANY (herein called the "Company") hereby promises to pay to ___________________ or registered assigns, the principal sum of $_______ (_______ dollars) in lawful currency of the United States of America, together with interest on the amount of said principal sum remaining unpaid from time to time from the date hereof until payment in full hereof is made, at the rate of 7.755% per annum (computed on the basis of a 360-day year of twelve 30-day months). Interest on such principal sum shall be due and payable on each February 15 and August 15 (each, a "Payment Date"), and installments of principal shall be due on the dates, and in the amounts, as set forth opposite each such date, as provided in Annex A hereto. Interest on any overdue principal, premium or interest (to the extent lawful) shall be paid from the due date thereof at the rate of interest applicable to this Equipment Note, payable on demand. Payments of interest on this Equipment Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Equipment Note, and any premium, shall be made in immediately available funds by wire transfer to the Person whose name appears on the Equipment Note Register as of the close of business on the 15th day preceding such Payment Date. Each such payment shall be made on the date such payment is due and, except for the last payment of principal hereof, without any presentment or surrender of this Equipment Note. Whenever the date scheduled for any payment to be made hereunder or under the Indenture shall not be a Business Day, then such payment need not be made on such scheduled date but may be made on the next succeeding Business Day with the same force and effect as if made on such scheduled date and (provided such payment is made on such next succeeding Business Day) no additional interest shall accrue on the amount of B-1 such payment from and after such scheduled date to the time of such payment on such next succeeding Business Day. Each holder hereof, by its acceptance of this Equipment Note, agrees that each payment received by it hereunder shall be applied, first, to the payment of accrued but unpaid interest on this Equipment Note then due (as well as any interest on any overdue principal amount) and (to the extent permitted by law) any overdue premium, if any, any overdue interest and any other overdue amount hereunder to the date of payment, second, to the payment of any premium then due, and third, to the payment of the unpaid principal amount of this Equipment Note then due. Furthermore, each holder hereof, by its acceptance of this Equipment Note, and the Company hereby agree to treat this Equipment Note as indebtedness for U.S. federal income tax purposes and agree not to file any tax return or statement inconsistent with that treatment. This Equipment Note is one of the 7.755% Equipment Notes referred to in the [C] Trust Indenture and Security Agreement dated as of February 15, 2002 among the Company, Trinity Industries, Inc., as guarantor, and The Bank of New York, as trustee (as supplemented or modified from time to time, the "Indenture") which have been or are to be issued by the Company pursuant to the terms of the Indenture. The Indenture Estate is held by the Trustee as security for the Equipment Notes. Reference is hereby made to the Indenture for a statement of the rights of the holder of, and the nature and extent of the security for, this Equipment Note, as well as for a statement of the terms and conditions of the trusts created by the Indenture, to all of which terms and conditions in the Indenture each holder hereof agrees by its acceptance of this Equipment Note. This Equipment Note is not subject to redemption or prepayment except as provided in Section 2.12 of the Indenture. The holder hereof, by its acceptance of this Equipment Note, agrees to be bound by said provisions. This Equipment Note is entitled to the benefits of the Guarantee provided in Article X of the Indenture. This Equipment Note is a registered Equipment Note and is transferable, as provided in the Indenture, only upon surrender of this Equipment Note for registration of transfer duly endorsed by, or accompanied by a written statement of transfer duly executed by, the registered holder hereof or his attorney duly authorized in writing. Prior to the due presentation for registration of transfer of this Equipment Note, the Company and the Trustee shall deem and treat the registered holder of this Equipment Note as the absolute owner and holder hereof for the purpose of receiving payment of all amounts payable with respect hereto and for all other purposes and shall not be affected by any notice to the contrary. This Equipment Note shall be governed by the laws of the State of New York. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Equipment Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. B-2 IN WITNESS WHEREOF, the Company has caused this 7.755% Equipment Note to be executed by one of its authorized officers as of the date hereof. TRINITY INDUSTRIES LEASING COMPANY By ------------------------------------ Name: Title: B-3 [FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION] This is one of the 7.755% Equipment Notes referred to in the within-mentioned Indenture. THE BANK OF NEW YORK, as Trustee By ------------------------------------- Authorized Signatory B-4 Annex A to Equipment Note AMORTIZATION SCHEDULE 7.755% SECURED EQUIPMENT NOTE
Payment Date Principal Amount Payable ------------ ------------------------ February 15, 2005 $ 5,915,565 February 15, 2006 10,277,509 February 15, 2007 9,440,448 February 15, 2008 14,239,384 February 15, 2009 62,127,094
[FORM OF TRANSFER NOTICE] FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto Insert Taxpayer Identification No. - ------------------------------------------------------------------------- Please print or typewrite name and address including zip code of assignee - ------------------------------------------------------------------------- the within Equipment Note and all rights thereunder, hereby irrevocably constituting and appointing ______________________________________ attorney to transfer said Equipment Note on the books of the Company with full power of substitution in the premises. EXHIBIT C to [C] Trust Indenture and Security Agreement [Letterhead of the Company] [Letterhead of the Trustee] [Date] [Lessee Name and Address] Ladies and Gentlemen: We hereby notify you that pursuant to the [C] Trust Indenture and Security Agreement dated as of February 15, 2002, as supplemented from time to time (the "Indenture"), among Trinity Industries Leasing Company (the "Company"), Trinity Industries, Inc. and The Bank of New York, as Trustee, the Company has assigned to the Trustee its rights under the lease with you dated ______ (the "Lease") relating to the following certain railcars [insert road numbers and reporting marks of railcars subject to the Lien of the Indenture which are covered by the Lease] (the "Railcars"), including the right to receive amounts payable to the Company under the Lease in respect of the Railcars. The Indenture provides that upon the occurrence of an Indenture Event of Default (as defined in the Indenture), this notice will be given to each lessee under a lease assigned to the Trustee under the Indenture. This notice is being given pursuant to Section 4.03(f) of the Indenture in accordance with Section 9-406 of the Uniform Commercial Code. You are hereby directed to remit all payments under the Lease in respect of the Railcars to the Trustee to the account specified below. On and after the date of your receipt of this notice you may discharge your obligation under the Lease in respect of the Railcars only by making payment to the Trustee. Any payment to the Company or any party other than the Trustee will not be effective to discharge your obligation under the Lease in respect of the Railcars. If you have any questions regarding this matter, please contact the Trustee at the address set forth below. [insert notice and account information for Trustee] Very truly yours, [Insert name of Trustee] By: ---------------------------- Name: Title: C-1 EXHIBIT D to [C] Trust Indenture and Security Agreement FORM OF MEMORANDUM OF TRUST MEMORANDUM OF [C] TRUST INDENTURE AND SECURITY AGREEMENT AND [C] TRUST INDENTURE SUPPLEMENT NO. __ This Memorandum of [C] Trust Indenture and Security Agreement and [C] Trust Indenture Supplement No. __ (this "Memorandum") is made and entered into by and among Trinity Industries Leasing Company, a Delaware corporation (the "Company"), Trinity Industries, Inc., a Delaware corporation (the "Guarantor"), and The Bank of New York, as Trustee under the Security Agreement (as defined below) (hereinafter referred to as "Trustee") respecting that certain [C] Trust Indenture and Security Agreement dated as of February ____, 2002, among the Company, the Guarantor and the Trustee (the "Security Agreement") and the [C] Trust Indenture Supplement No. __ dated as of ______, among the Company, the Guarantor and the Trustee. Pursuant to the provisions of the Security Agreement, the Company, the Guarantor and Trustee hereby affirm and acknowledge that: 1. The Company has agreed to execute and deliver to the Trustee an equipment note and the Trustee has agreed to accept such an equipment note from the Company and, as security therefor, grant the Trustee a first priority security interest in (i) certain railroad equipment bearing reporting marks and road numbers as listed on Exhibit A attached hereto and (ii) certain leases with respect to such equipment identified by the lessee numbers and rider numbers as listed on Exhibit B attached hereto, subject to the terms defined in the Security Agreement. 2. This Memorandum is prepared only for the public record and is being recorded with the Surface Transportation Board pursuant to 49 U.S.C. Section 11301(a) and the Registrar General of Canada. D-1 IN WITNESS WHEREOF, each of the parties hereto, pursuant to due corporate authority, has caused this Memorandum to be duly executed in its corporate name by its officers, thereunto duly authorized, as of ___________. COMPANY: TRUSTEE: TRINITY INDUSTRIES LEASING COMPANY THE BANK OF NEW YORK By: By: -------------------------------- ---------------------------- Name: Name: ------------------------------ -------------------------- Title: Title: ----------------------------- ------------------------- GUARANTOR: TRINITY INDUSTRIES, INC. By: -------------------------------- Name: ------------------------------ Title: ----------------------------- D-2 STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of The Bank of New York, that said instrument was signed on behalf of said corporation, not in its individual capacity, but solely as trustee under the Security Agreement by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. -------------------------------- Notary Public My Commission Expires: STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of Trinity Industries Leasing Company, that said instrument was signed on behalf of said corporation by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. -------------------------------- Notary Public My Commission Expires: STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of Trinity Industries, Inc., that said instrument was signed on behalf of said corporation by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. -------------------------------- Notary Public My Commission Expires: EXHIBIT A EXHIBIT B EXHIBIT E to [C] Trust Indenture and Security Agreement FORM OF MEMORANDUM OF LEASE MEMORANDUM OF LEASE This Memorandum of Lease (this "Memorandum") is made and executed as of _____, ____ by Trinity Industries Leasing Company, a Delaware corporation (the "Lessor"), with reference to the following: 1. Lessor is the owner of certain railroad equipment bearing reporting marks and road numbers as listed on Exhibit A attached hereto (the "Equipment") and has leased the Equipment to certain lessees pursuant to the leases identified by the lessee numbers and rider numbers as listed on Exhibit B attached hereto (the "Leases"). 2. This Memorandum is prepared only for the public record and is being recorded with the Surface Transportation Board pursuant to 49 U.S.C. 11301(a) and the Registrar General of Canada. [signature page to follow] E-1 IN WITNESS WHEREOF, the undersigned has caused this Memorandum to be executed by a duly authorized officer as of the day and year first above written. TRINITY INDUSTRIES LEASING COMPANY By: -------------------------------- Name: ------------------------------ Title: ----------------------------- E-2 STATE OF ) -------------------- ) ) SS: COUNTY OF ) ------------------- ) On this ____ day of _____, ____, before me personally appeared _______________________________________, to me personally known, who being duly sworn, stated that he/she is ____________________________ of Trinity Industries Leasing Company, that said instrument was signed on behalf of said corporation by authority of its board of directors or other governing body, and he/she acknowledged that the execution of the foregoing instrument was the free act and deed of said corporation. -------------------------------- Notary Public My Commission Expires: EXHIBIT A EXHIBIT B EX-99.1 7 d94365ex99-1.txt PRESS RELEASE DATED FEBRUARY 15, 2002 EXHIBIT 99.1 TRINITY INDUSTRIES, INC.'S LEASING SUBSIDIARY ISSUES $170 MILLION IN SENIOR SECURED NOTES Dallas, TX, February 15, 2002 -- Trinity Industries, Inc. (NYSE: TRN) announced today its wholly-owned leasing subsidiary, Trinity Industries Leasing Company, completed a private placement of $170 million of notes which are secured by certain of the subsidiary's leased railcars and are guaranteed by Trinity. Proceeds from the offering will be used to repay bank debt including a bridge loan used to fund the cash portion of the purchase price of Thrall Car Manufacturing Company. "By adding long term debt with an average maturity of over five years and no principal amortization for three years, we believe this is an important improvement to Trinity's consolidated capital structure", said Neil Shoop, Treasurer. "The final balloon principal payment is in 2009", added Shoop. The securities will not be registered under the Securities Act of 1933 and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act of 1933. Trinity Industries, Inc., with headquarters in Dallas, Texas, is one of the nation's leading diversified industrial companies. Trinity operates through five principal business segments: the Railcar Group, the Industrial Products Group, the Construction Products Group, the Inland Barge Group, and the Parts and Services Group. Trinity's web site may be accessed at www.trin.net -----END PRIVACY-ENHANCED MESSAGE-----