Common use of Lessee's Purchase in Certain Circumstances Clause in Contracts

Lessee's Purchase in Certain Circumstances. If an Owner Participant, any Transferee or any Affiliate of such Owner Participant or Transferee is engaged, or acquires, is acquired by, merges or otherwise consolidates with any company or Affiliate thereof engaged, in full service railcar leasing, whether or not a direct competitor to the Lessee or any Affiliate thereof, or by or with any Person that has a material interest (whether held directly or indirectly) in an enterprise that engages in a business that is competitive with the Lessee's full service railcar leasing business, the Lessee may, on a Determination Date which is designated by the Lessee by written notice to the Owner Trustee, the Indenture Trustee and the Pass Through Trustee not less than 25 days prior to such Determination Date, purchase all, but not less than all, the Equipment for a purchase price equal to the greater of Termination Value or the Fair Market Sales Value, each calculated as of such Determination Date, plus in either case all accrued and unpaid Rent for the Equipment as of the date of purchase and any Make-Whole Amount then payable on the Equipment Notes pursuant to Section 2.10(c) of the Indenture; provided, that the Lessee's rights to purchase the Equipment pursuant to this Section 6.9 shall terminate on the earlier to occur of (i) the 90th day after receipt by the Lessee of written notice from the Owner Participant or any Transferee or any Affiliate thereof, that it is engaged in full service railcar leasing or of any such acquisition, merger or consolidation and (ii) the 90th day after the Lessee otherwise obtains actual knowledge of any such occurrence; provided further, that an institutional investor which is a passive investor in the financing of equipment or facilities used in full service railcar leasing shall not, solely by reason of such investment, be deemed to be engaged in such business; provided, further, that neither the Owner Participant or any Transferee nor Affiliate thereof shall be deemed to (i) be engaged in full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with the Lessee's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the foregoing), of any of such Person's interest in any equipment or facilities directly or indirectly owned, leased or otherwise controlled pursuant to any such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is returned to or repossessed by or on behalf of the Owner Participant or any Affiliate from a lessee or borrower in connection with a lease financing or lender transaction entered into by the Owner Participant or such Affiliate as a passive lessor, investor or lender. If the Lessee elects to exercise the purchase option provided for in this Section 6.9, Lessee shall, as the purchase price therefor, in the sole discretion of the Lessee, either (i) pay the Termination Value or the Fair Market Sales Value, as specified in the paragraph above, together with all other amounts due and owing by Lessee under the Operative Agreements, or (ii) pay the difference between the Termination Value or the Fair Market Sales Value, as applicable, and the outstanding principal amount of the Equipment Notes as of the Determination Date, together with all other amounts due and owing by the Lessee under the Operative Agreements, and assume on a full recourse basis pursuant to Section 4.01 of the Indenture, and agree to indemnify the Lessor against, all of the Owner Trustee's obligations in respect of the related Equipment Notes; provided, that, following such assumption, the purchased Units shall remain subject to the lien of the Indenture. The Lessee will make the payments required by foregoing clause (i) or assume the Equipment Notes as provided in foregoing clause (ii) on the Determination Date against delivery of a bill xx sale transferring and assigning to the Lessee all right, title and interest of the Lessor in and to such Units on an "as-is" "where-is" basis and containing a warranty against the Lessor's Liens. The Lessor shall not be required to make any other representation or warranty as to the condition of such Units or any other matters, and may specifically disclaim any such representations or warranties.

Lessee's Purchase in Certain Circumstances. If an Owner Participant, any Transferee subsequent transferee or any Affiliate of such Owner Participant or Transferee thereof is engaged, or acquires, is acquired by, merges or otherwise consolidates with any company or Affiliate thereof engaged, in full service railcar leasing, whether or not a direct competitor to the Lessee or any Affiliate thereof, or by or with any Person that has a material interest (whether held directly or indirectly) in an enterprise that engages in a business that is competitive with the Lessee's full service railcar leasing business, the Lessee may, on a Determination Date which is designated by the Lessee by written notice to the Owner Trustee, the Indenture Trustee and the Pass Through Trustee not less than 25 days prior to such Determination Date, purchase all, but not less than all, the Equipment for a purchase price equal to the greater of Termination Value or the Fair Market Sales Value, each calculated as of such Determination Date, plus in either case all accrued and unpaid Rent for the Equipment as of the date of purchase and any Make-Whole Amount then payable on the Equipment Notes pursuant to Section 2.10(c) of the Indenture; provided, that the Lessee's rights to purchase the Equipment pursuant to this Section 6.9 shall terminate on the earlier to occur of (i) the 90th day after receipt by the Lessee of written notice from the Owner Participant or any Transferee or any Affiliate thereof, that it is engaged in full service railcar leasing or of any such acquisition, merger or consolidation and (ii) the 90th day after the Lessee otherwise obtains actual knowledge of any such occurrence; provided further, that an institutional investor which is a passive investor in the financing of equipment or facilities used in full service railcar leasing shall not, solely by reason of such investment, be deemed to be engaged in such business; provided, further, that neither the Owner Participant or any Transferee nor Affiliate thereof shall be deemed to (i) be engaged in full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with the Lessee's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the foregoing), of any of such Person's interest in any equipment or facilities directly or indirectly owned, leased or otherwise controlled pursuant to any such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is returned to or repossessed by or on behalf of the Owner Participant or any Affiliate from a lessee or borrower in connection with a lease financing or lender transaction entered into by the Owner Participant or such Affiliate as a passive lessor, investor or lender. If the Lessee elects to exercise the purchase option provided for in this Section 6.9, Lessee shall, as the purchase price therefor, in the sole discretion of the Lessee, either (i) pay the Termination Value or the Fair Market Sales Value, as specified in the paragraph above, together with all other amounts due and owing by Lessee under the Operative Agreements, or (ii) pay the difference between the Termination Value or the Fair Market Sales Value, as applicable, and the outstanding principal amount of the Equipment Notes as of the Determination Date, together with all other amounts due and owing by the Lessee under the Operative Agreements, and assume on a full recourse basis pursuant to Section 4.01 of the Indenturebasis, and agree to indemnify the Lessor against, all of the Owner Trustee's obligations in respect of the related Equipment Notes; provided, that, following such assumption, the purchased Units shall remain subject to the lien of the related Indenture. The Lessee will make the payments required by foregoing clause (i) or assume the Equipment Notes as provided in foregoing clause (ii) on the Determination Date against delivery of a bill xx sale transferring and assigning to the Lessee all right, title and interest of the Lessor in and to such Units on an "as-is" "where-is" basis and containing a warranty against the Lessor's Liens. The Lessor shall not be required to make any other representation or warranty as to the condition of such Units or any other matters, and may specifically disclaim any such representations or warranties.

Lessee's Purchase in Certain Circumstances. If an Owner Participant, any Transferee ------------------------------------------ Participant or any Affiliate of such Owner Participant or Transferee thereof is engaged, or acquires, is acquired by, merges or otherwise consolidates with any company or Affiliate thereof engaged, engaged in full service railcar leasing, whether or not a direct competitor to the Lessee or any Affiliate thereof, or by or with any Person that has a material interest (whether held directly or indirectly) in an enterprise that engages in a business that is competitive with the Lessee's full service railcar leasing business, the Lessee may, no later than one year after a Responsible Officer of the Lessee has actual knowledge of such event, request that such Owner Participant transfer its Beneficial Interest pursuant to Section 6.1. If such Owner Participant has not transferred its Beneficial Interest within 180 days of such request, the Lessee may, on a Determination Date which is designated by the Lessee by written notice to the Owner Trustee, the Indenture Trustee and the Pass Through Indenture Trustee not less than 25 days prior to such Determination Date, purchase all, but not less than all, a number of the Units of Equipment equal to the percentage of the Equipment that the portion of the Beneficial Interest held by such Owner Participant bears to 100% of the Beneficial Interest for a purchase price equal to the greater of Termination Value or the Fair Market Sales Value, each for such Units calculated as of such Determination Date, plus in either case together with all other amounts due and owing by the Lessee under the Operative Agreements with respect to such Units, including, without limitation, all accrued and unpaid Basic Rent for the Equipment therefor as of the date such Determination Date (exclusive of purchase any in advance Basic Rent due on such date) and any Make-Whole Amount then payable on the Equipment Notes pursuant to Section 2.10(c) of the IndentureIndenture with respect to such Units; provided, that the Lessee's rights to purchase the Equipment pursuant to this Section 6.9 shall terminate on the earlier to occur of (i) the 90th day after receipt by the Lessee of written notice from the Owner Participant or any Transferee or any Affiliate thereof, that it is engaged in full service railcar leasing or of any such acquisition, merger or consolidation and (ii) the 90th day after the Lessee otherwise obtains actual knowledge of any such occurrence; provided further, that an -------- institutional investor which is a passive investor in the financing of equipment or facilities used in full service railcar leasing shall not, solely by reason of such investment, be deemed to be engaged in such businessbusinesses; provided, -------- further, that neither the none of any Owner Participant or any Transferee nor Affiliate thereof shall be deemed ------- to (i) be engaged in full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with the Lessee's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the foregoing), of any of such Person's interest in any equipment or facilities directly or indirectly owned, leased or otherwise controlled pursuant to any such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is returned leasing. In the event that such Owner Participant hereinabove referred to or repossessed by or on behalf holds less than 100% of the Owner Participant Beneficial Interest, the determination as to which Units are to be purchased under this Section 6.9 shall be made on a random or any Affiliate from a lessee other basis (in each case reasonably acceptable to the Lessor) without discrimination based on maintenance status, operating condition of the Units in question or borrower otherwise and the notice hereinabove referred to shall describe such manner in connection with a lease financing or lender transaction entered into by which the Owner Participant or such Affiliate as a passive lessor, investor or lenderLessee proposes to determine which Units are to be purchased hereunder. If the Lessee elects to exercise the purchase option provided for in this Section 6.9, the Lessee shall, as the purchase price therefor, in the sole discretion of the Lessee, either (i) pay the Termination Value or the Fair Market Sales Value, as specified in the paragraph above, with respect to such Units, together with all other amounts due and owing by the Lessee under the Operative Agreements, or (ii) pay the difference between the Termination Value or and the Fair Market Sales Value, as applicable, and portion of the outstanding principal amount of the Equipment Notes which relates to such Units as of the Determination Date, together with all other amounts due and owing Date specified by the Lessee under in the Operative Agreements, first sentence of this Section 6.9 and assume on a full recourse basis pursuant to Section 4.01 of the Indentureresource basis, and agree to indemnify the Lessor against, all of the Owner Trustee's obligations under the Indenture in respect of such portion of the related indebtedness evidenced by such Equipment Notes; provided, -------- that, following such assumption, the purchased Units shall remain subject to the lien of a separate indenture similar to the Indenture pursuant to Section 3.06 of the Indenture. The Lessee will make the payments required by foregoing clause (i) or assume such portion of the indebtedness evidenced by the Equipment Notes which relates to such Units as provided in foregoing clause (ii) on the Determination Date designated in the first sentence of Section 6.9 in immediately available funds against delivery of a bill xx xxxx of sale transferring and assigning to the Lessee all right, title and interest of the Lessor in and to such the Units on an "as-is" "where-is" basis and containing a warranty against the Lessor's Liens. The Lessor In such event, the costs of preparing the xxxx of sale and all other documentation relating to such purchase and the costs of any necessary filings related thereto will be borne by the Lessee. If the Lessee shall not be required fail to make any other representation or warranty as fulfill its obligations under this second paragraph of Section 6.9, all of the Lessee's obligations under the Lease and the Operative Agreements, including, without limitation, the Lessee's obligation to pay installments of Rent, with respect to the condition of such Units or any other matters, and may specifically disclaim any such representations or warrantiesin question shall continue.

Lessee's Purchase in Certain Circumstances. If an Owner Participant, any Transferee Participant or any Affiliate of such Owner Participant or Transferee thereof is engaged, or acquires, is acquired by, merges or otherwise consolidates with any company or Affiliate thereof engaged, engaged in full service railcar leasing, whether or not a direct competitor to the Lessee or any Affiliate thereof, or by or with any Person that has a material interest (whether held directly or indirectly) in an enterprise that engages in a business that is competitive with the Lessee's full service railcar leasing business, the Lessee may, no later than one year after a Responsible Officer of the Lessee has actual knowledge of such event, request that such Owner Participant transfer its Beneficial Interest pursuant to Section 6.1. If such Owner Participant has not transferred its Beneficial Interest within 180 days of such request, the Lessee may, on a Determination Date which is designated by the Lessee by written notice to the Owner Trustee, the Indenture Trustee and the Pass Through Indenture Trustee not less than 25 days prior to such Determination Date, purchase all, but not less than all, a number of the Units of Equipment equal to the percentage of the Equipment that the portion of the Beneficial Interest held by such Owner Participant bears to 100% of the Beneficial Interest for a purchase price equal to the greater of Termination Value or the Fair Market Sales Value, each for such Units calculated as of such Determination Date, plus in either case together with all other amounts due and owing by the Lessee under the Operative Agreements with respect to such Units, including, without limitation, all accrued and unpaid Basic Rent for the Equipment therefor as of the date such Determination Date (exclusive of purchase any in advance Basic Rent due on such date) and any Make-Whole Amount then payable on the Equipment Notes pursuant to Section 2.10(c) of the IndentureIndenture with respect to such Units; provided, that the Lessee's rights to purchase the Equipment pursuant to this Section 6.9 shall terminate on the earlier to occur of (i) the 90th day after receipt by the Lessee of written notice from the Owner Participant or any Transferee or any Affiliate thereof, that it is engaged in full service railcar leasing or of any such acquisition, merger or consolidation and (ii) the 90th day after the Lessee otherwise obtains actual knowledge of any such occurrence; provided further, that an institutional investor which is a passive investor in the financing of equipment or facilities used in full service railcar leasing shall not, solely by reason of such investment, be deemed to be engaged in such businessbusinesses; provided, further, that neither the none of any Owner Participant or any Transferee nor Affiliate thereof shall be deemed to (i) be engaged in full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with the Lessee's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the foregoing), of any of such Person's interest in any equipment or facilities directly or indirectly owned, leased or otherwise controlled pursuant to any such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is returned leasing. In the event that such Owner Participant hereinabove referred to or repossessed by or on behalf holds less than 100% of the Owner Participant Beneficial Interest, the determination as to which Units are to be purchased under this Section 6.9 shall be made on a random or any Affiliate from a lessee other basis (in each case reasonably acceptable to the Lessor) without discrimination based on maintenance status, operating condition of the Units in question or borrower otherwise and the notice hereinabove referred to shall describe such manner in connection with a lease financing or lender transaction entered into by which the Owner Participant or such Affiliate as a passive lessor, investor or lenderLessee proposes to determine which Units are to be purchased hereunder. If the Lessee elects to exercise the purchase option provided for in this Section 6.9, the Lessee shall, as the purchase price therefor, in the sole discretion of the Lessee, either (i) pay the Termination Value or the Fair Market Sales Value, as specified in the paragraph above, with respect to such Units, together with all other amounts due and owing by the Lessee under the Operative Agreements, or (ii) pay the difference between the Termination Value or and the Fair Market Sales Value, as applicable, and portion of the outstanding principal amount of the Equipment Notes which relates to such Units as of the Determination Date, together with all other amounts due and owing Date specified by the Lessee under in the Operative Agreements, first sentence of this Section 6.9 and assume on a full recourse basis pursuant to Section 4.01 of the Indentureresource basis, and agree to indemnify the Lessor against, all of the Owner Trustee's obligations under the Indenture in respect of such portion of the related indebtedness evidenced by such Equipment Notes; provided, that, following such assumption, the purchased Units shall remain subject to the lien of a separate indenture similar to the Indenture pursuant to Section 3.06 of the Indenture. The Lessee will make the payments required by foregoing clause (i) or assume such portion of the indebtedness evidenced by the Equipment Notes which relates to such Units as provided in foregoing clause (ii) on the Determination Date designated in the first sentence of Section 6.9 in immediately available funds against delivery of a bill xx xxxx of sale transferring and assigning to the Lessee all right, title and interest of the Lessor in and to such the Units on an "as-is" "where-is" basis and containing a warranty against the Lessor's Liens. The Lessor In such event, the costs of preparing the xxxx of sale and all other documentation relating to such purchase and the costs of any necessary filings related thereto will be borne by the Lessee. If the Lessee shall not be required fail to make any other representation or warranty as fulfill its obligations under this second paragraph of Section 6.9, all of the Lessee's obligations under the Lease and the Operative Agreements, including, without limitation, the Lessee's obligation to pay installments of Rent, with respect to the condition of such Units or any other matters, and may specifically disclaim any such representations or warrantiesin question shall continue.

Lessee's Purchase in Certain Circumstances. If an the Owner Participant, any Transferee ------------------------------------------ Participant or any Affiliate of such Owner Participant or Transferee thereof is engaged, or acquires, is acquired by, merges or otherwise consolidates with any company or Affiliate thereof engaged, engaged in full service railcar leasing, whether or not a direct competitor to the Lessee or any Affiliate thereof, or by or with any Person that has a material interest (whether held directly or indirectly) in an enterprise that engages in a business that is competitive with the Lessee's full service railcar leasing business, the Lessee may, no later than ninety (90) days after a Responsible Officer of the Lessee has actual knowledge of such event, either (x) request that such Owner Participant transfer its Beneficial Interest in accordance with the terms of Section 6.1, or (y) on a Determination Date which is designated by the Lessee by written notice to the Owner Trustee, the Indenture Trustee and the Pass Through Indenture Trustee not less than 25 days prior to such Determination Date, purchase all, but not less than all, the Equipment for a purchase price equal to the greater of Termination Value or the Fair Market Sales Value, each calculated as of such Determination Date, plus in either case together with all other amounts due and owing by the Lessee under the Operative Agreements with respect to such Units, including, without limitation, all accrued and unpaid Basic Rent for the Equipment therefor as of the date such Determination Date (exclusive of purchase any in advance Basic Rent due on such date), any interest accrued and unpaid with respect to such unpaid Basic Rent, any Make-Whole Amount then payable on the Equipment Notes pursuant to Section 2.10(c) of the IndentureIndenture with respect to such Units and any then Late Payment Premium due and owing under the Operative Agreements with respect to such Units; provided, that the Lessee's rights to purchase the Equipment pursuant to this Section 6.9 shall terminate on the earlier to occur of (i) the 90th day after receipt by the Lessee of written notice from the Owner Participant or any Transferee or any Affiliate thereof, that it is engaged in full service railcar leasing or of any such acquisition, merger or consolidation and (ii) the 90th day after the Lessee otherwise obtains actual knowledge of any such occurrence; provided further, that an institutional investor which is a passive investor in the financing of equipment or facilities used in full service railcar leasing shall not, solely by reason of such investment, be deemed to be engaged in such businessbusinesses; provided, further, that neither the none of any Owner Participant or any Transferee nor Affiliate thereof shall be deemed to (i) be engaged in full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with the Lessee's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the foregoing), ) of any of such Person's interest in any equipment or facilities directly or indirectly owned, leased or otherwise controlled pursuant to any such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale leasing. In the event that the Lessee, pursuant to clause (x) of any rail equipment which is returned to or repossessed by or on behalf of the preceding sentence, has requested the Owner Participant to transfer its Beneficial Interest, and such Owner Participant has not transferred its Beneficial Interest within 180 days of such request, the Lessee may purchase the Equipment in accordance with clause (y) of the preceding sentence. In the event that such Owner Participant holds less than 100% of the Beneficial Interest (after excluding any Beneficial Interests held by the Lessee, the Manager or any Affiliate from of either thereof), in lieu of purchasing of the Equipment as provided above, the Lessee may instead purchase such Owner Participant's Beneficial Interest for a lessee or borrower purchase price equal to (a) the excess of (i) the purchase price for the Equipment determined as provided above in connection with this Section 6.9 over (ii) the sum of the principal amount of Equipment Notes then outstanding (b) multiplied by a lease financing or lender transaction entered into by fraction equal to the portion such Owner Participant or such Affiliate as a passive lessor, investor or lenderParticipant's Beneficial Interest bears to 100% of the Beneficial Interests. If the Lessee elects to exercise the option to purchase option the Equipment (as opposed to such Owner Participant's Beneficial Interest) as provided for in this Section 6.9, the Lessee shall, as the purchase price therefor, in the sole discretion of the Lessee, either (i) pay the Termination Value or the Fair Market Sales Value, as specified in the paragraph aboveabove paragraph, together with all other amounts due and owing by Lessee under the Operative Agreements, or (ii) pay the difference between the Termination Value or the Fair Market Sales Value, as applicable, and the outstanding principal amount of the Equipment Notes as of the Determination Daterespect to such Units, together with all other amounts due and owing by the Lessee under the Operative Agreements, or (ii) so long as no Lease Event of Default shall have occurred and assume on a full recourse basis pursuant to Section 4.01 be continuing, pay the difference between the Termination Value and the portion of the Indentureoutstanding principal amount of the Equipment Notes as of the Determination Date specified by the Lessee in the second sentence of this Section 6.9, together with all other amounts due and payable and assume, and agree to indemnify the Lessor against, all of the Owner Trustee's obligations under the Indenture in respect of such portion of the related indebtedness evidenced by such Equipment Notes; provided, that, following such assumption, the purchased Units shall remain subject to the lien Lien of a separate indenture similar to the Indenture pursuant to Section 3.6 of the Indenture; which separate indenture shall incorporate such covenants, events of default including appropriate cross-defaults to the Indenture and the Other Leases, agreements, terms and conditions from the Lease as may be reasonably required by the Indenture Trustee and shall include appropriate cross- collateralization with the security granted under the Indenture. The Lessee will make the payments required by foregoing clause (i) or assume the indebtedness evidenced by the Equipment Notes as provided in foregoing clause (ii) on the Determination Date designated in accordance with the first sentence of this Section 6.9 in immediately available funds against delivery of a bill xx xxxx of sale transferring and assigning to the Lessee all right, title and interest of the Lessor in and to such the Units on an "as-is" "where-is" basis and containing a warranty against with respect to the absence of any Lessor's LiensLien. The Lessor In such event, the costs of preparing the xxxx of sale or other transfer documents and all other documentation relating to such purchase and the costs of any necessary filings related thereto will be borne by the Lessee. If the Lessee shall not be required fail to make any other representation or warranty as fulfill its obligations under this second paragraph of Section 6.9, all of the Lessee's obligations under the Lease and the Operative Agreements, including, without limitation, the Lessee's obligation to pay installments of Rent, with respect to the condition of such Units or any other matters, and may specifically disclaim any such representations or warrantiesin question shall continue.