Railroad Car Full Service Master Lease Agreement

EXHIBIT 10.28

EXECUTION COPY

RAILROAD CAR FULL SERVICE MASTER LEASING AGREEMENT

GENERAL ELECTRIC RAILCAR
SERVICES CORPORATION

and

NRG POWER MARKETING INC.

Dated: February 18, 2005

TABLE OF CONTENTS

Schedule I            Pricing Assumptions

GENERAL ELECTRIC RAILCAR SERVICES CORPORATION
RAILROAD CAR FULL SERVICE MASTER LEASING AGREEMENT

     This Railroad Car Full Service Master Leasing Agreement (“Agreement”) is made effective as of February 18, 2005 (the “Closing Date”), between General Electric Railcar Services Corporation, a Delaware corporation (“Lessor”), and NRG Power Marketing Inc., a Delaware corporation (“Lessee”).

1. Lease. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the railroad car(s) described in one or more riders (the “Rider(s)”) (the “Car(s)”) subject to this Agreement. Lessor shall purchase the Cars from the manufacturer or supplier (“Seller”) and lease the Cars to Lessee if Lessor receives a fully executed Rider for the applicable Cars including all schedules, annexes, and attachments thereto. Each Rider includes the number of Car(s), the commodities the Lessee may carry, the rental rate, term of use, Car numbers and other pertinent information that may be desired by both parties. If the terms of this Agreement and a Rider conflict, the terms of such Rider govern. Each Rider, together with the provisions of this Agreement incorporated therein, shall constitute a separate lease (each, a “Lease”). Once a Rider is signed, Lessee may not cancel the Rider except as provided therein.

2. Delivery. Lessor will deliver the Car(s) to Lessee at the Delivery Location(s) specified in the applicable Rider. Lessor’s obligation to deliver is subject to delays beyond its control. Lessee will use the Car(s) exclusively in its own service, unless otherwise herein provided.

3. Inspection; Acceptance. Lessee shall have the right but not the obligation to inspect each of the Cars at the Delivery Location prior to acceptance under a Rider. Lessee’s acceptance of each Car under a Rider will be deemed to have occurred upon the execution and delivery by Lessee of the applicable Rider. The date of delivery of a Car to Lessee subject to a Rider shall be the “Delivery Date” for such Car.

4. Rent.

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5. Use, Location and Possession. Subject to the terms of this Agreement, Lessee has the exclusive right to possess, use and operate each Car solely for its intended purpose in accordance with this Agreement, provided that any such use is in conformity with all applicable laws, rules and regulations and in conformity with prudent industry practice. Lessee agrees not to operate or locate any Car, or to suffer any Car to be operated or located, in any area excluded from coverage by any insurance policy required by the terms of Section 13 hereof. Lessee shall operate each Car and permit each Car to be located only in the continental United States or Canada; provided that no Car may be used in operations or located within Canada for more than 90 days in any calendar year. Lessee agrees that each Car will bear reporting marks and numbers specified by Lessor, and Lessee may not change the reporting mark or number on any Car. Lessee shall not place any lettering or marking of any kind upon the Cars without Lessor’s prior written consent; provided, that Lessee may, at its expense, cause the Cars to be marked or stenciled with the

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names or initials or other insignia customarily used by Lessee or any permitted sublessee on railroad cars used by it of the same or a similar type.

6. Railroad Charges. Lessee must reimburse Lessor for any payment Lessor is required to make to any railroad for empty movement charges incurred while in Lessee’s service. It is agreed that the railroad mileage and junction reports will be conclusive evidence of the facts reported in the absence of manifest error identified in reasonable detail by Lessee.

7. Repairs; Maintenance.

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8. Casualty Car(s). If any Car is totally damaged or destroyed or is uneconomic to repair (other than solely as a result of an increase following the date of the applicable Rider in the labor or material cost of such repairs) under Section 7 or is uneconomic to modify (other than solely as a result of an increase following the date of the applicable Rider in the labor or material cost of such repairs) under Section 20, in each case, as reasonably determined by Lessor (an “Event of Loss”), the rent for such Car will terminate upon the receipt by Lessor of reimbursement for such Car as specified in this Section 8. If the Event of Loss occurs as a result of any damage described in clause (a), (b) or (c) of Section 7.D.ii., the reimbursement amount will be an amount equal to the Stipulated Loss Value for such Car. If the Event of Loss occurs as a result of any damage other than damage described in the immediately preceding sentence, the reimbursement amount will be the settlement value of such Car calculated using AAR Rule 107. Within sixty (60) days of such Event of Loss, Lessee shall pay to Lessor the applicable reimbursement amount for such Car, unless Lessor shall have previously received from a railroad the settlement value for such Car calculated using AAR Rule 107. Lessor will remit to Lessee any amount it subsequently receives from a railroad under AAR Rule 107 or any insurance proceeds from property insurance carried by Lessee pursuant to Section 13 in respect of a Car up to the amount previously paid to Lessor by Lessee as a reimbursement amount in respect of such Car. In the case of an Event of Loss Lessor has the right, but is not obligated, to substitute for any such Car another Car of substantially the same age, type, quality and capacity with the consent of Lessee.

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9. Renewal. Unless otherwise provided in the applicable Rider, Lessee shall have no right to renew this Agreement with respect to any Car other than with the mutual agreement of Lessor and Lessee.

10. Return Conditions. Lessee must return the Car(s) to Lessor at a location agreed by Lessor and Lessee in the same or as good as delivered condition, ordinary wear and tear excepted. Lessee shall be liable for any item which is removed, broken, altered, missing, damaged (including bent top cords and gates if any), except to the extent, in each case, Lessor is or was responsible for the cost of repair of such item pursuant to the applicable Lease, or replaced with a non-standard item (unless such replacement was done by Lessor). Lessee will return Car(s) free from all charges, liens, and encumbrances (other than Lessor Liens) and free from all lettering and stenciling (other than any marks and numbers required by the applicable Rider) and all accumulations or deposits from commodities transported in the Car(s). Lessee must remove all modifications made by Lessee that are readily removable without causing damage to the Car(s) and without diminishing the value, utility or remaining economic useful life of the Car(s) (in each case as if such modification had not been made) at Lessee’s cost and expense, and Lessee will pay for the repair of any damage resulting from the removal of any such modifications in accordance with Section 7.D.; provided that such removal shall not (i) diminish the fair market value, residual value, utility or remaining economic useful life of the Car to which such modifications relate below what the fair market value, residual value, utility or remaining economic useful life thereof would have been without the addition of such modifications or (ii) cause such Car to become “limited use property” within the meaning of Revenue Procedure 2001-28 or Revenue Procedure 2001-29. If Lessee has not removed any such modification prior to the return of the related Car as provided herein, title to such modification shall pass to Lessor as of the date of such return. Lessee must reimburse Lessor for any expense incurred in cleaning, removal, and disposal of any remaining accumulation or deposits from such Car. Lessor may, at Lessee’s expense, return the Car(s) to Lessee for cleaning. No rental credits will be issued while Car(s) are being cleaned, and rent will continue until such Car(s) are returned to Lessor empty and clean at a location agreed by Lessor and Lessee.

11. Representations and Warranties of Lessee. Lessee represents and warrants to Lessor as follows as of the date of this Agreement and as of the date of execution of each Rider:

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12. Representations and Warranties of Lessor. Lessor represents and warrants to Lessee as follows as of the date of this Agreement and as of the date of execution of each Rider:

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13. Insurance. Upon acceptance of each Car, Lessee, at its own cost and expense, shall keep such Car insured under an “all risk” property insurance policy (the “Property Policy”) for the value of such Car and in no event (other than with respect to Lessee’s deductible of $500,000) for less than an amount equal to the greater of (i) the Stipulated Loss Value for such Car and (ii) the settlement value of such Car (calculated using AAR Rule 107), and shall maintain Commercial General Liability and/or Excess Liability insurance policies (the “Liability Policies”) which, when combined, shall have limits of not less than $10,000,000 for each occurrence and in the aggregate. All such insurance shall be placed with first class insurers and underwriters that have an A.M. Best rating of A (excellent) or better, shall specify Lessor as loss payee on the Property Policy and as an additional insured on the Liability Policies and shall provide that such insurance may not be canceled as to Lessor or altered in any way that would affect the interest of Lessor without at least thirty (30) days prior written notice to Lessor (ten (10) days in the case of nonpayment of premium). All insurance shall be primary, without right of contribution from any other insurance carried by Lessor. The “all risk” property insurance policy shall contain a “breach of warranty” provision if, at any time from and after the date of this Agreement, Lessee has obtained an “all risk” property insurance policy containing a “breach of warranty” in any other lease transaction and shall provide that all amounts payable by reason of loss or damage to the Car shall be payable to Lessor. Lessee shall provide Lessor with evidence satisfactory to Lessor of the required insurance five (5) Business Days prior to the applicable Delivery Date.

14. Financial Covenants. The financial covenants set forth in Section 6.10 (Consolidated Interest Coverage Ratio) and Section 6.11 (Consolidated Leverage Ratio) of that certain Credit Agreement as amended and restated as of December 24, 2004 among NRG Energy, Inc., Lessee, the Lenders party thereto, and Credit Suisse First Boston, acting through its Cayman Islands Branch, as administrative agent, joint lead book runner, joint lead arranger, and co-documentation agent, and Goldman Sachs Credit Partners L.P., as joint lead book runner, joint lead arranger, and co-documentation agent, (as such Credit Agreement may be amended, restated, supplemented or otherwise modified from time to time the “Senior Credit Agreement”) are hereby incorporated by reference (together with all applicable defined terms relating thereto) as if

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fully set forth herein provided that any modification or deletion to such financial covenants shall be effective only upon receipt by Lessor of notice of such amendment pursuant to Section 29.B.

15. Closing Conditions.

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16. Taxes. Lessee shall pay, and shall indemnify, reimburse, and hold Lessor (on a net after tax basis (taking into account any tax savings available to Lessor)) harmless from and against, all fees, taxes, withholdings, assessments and other governmental charges, however designated, together with any penalties, fines or interest, if any, thereon, (collectively, the “Impositions”) which are at any time levied, assessed or imposed against Lessor, Lessee, this Agreement, any Rider, the Car(s) or any part thereof by any Federal, state, local or foreign government or taxing authority upon, with respect to, as a result of, or measured by (i) the Car(s) (or any part thereof), or this Agreement or any Rider or the interest of the Lessor therein, or (ii) the purchase, ownership, delivery, leasing, possession, maintenance, use, operation, return, sale or other disposition of the Car(s) or any part thereof, or (iii) the rentals, receipts or earnings payable under this Agreement or any Rider or otherwise arising from the Car(s) or any part thereof; excluding in each case, however, (s) Impositions by any foreign government or taxing authority except to the extent imposed as a result of the use or presence of any Car, or the presence or activities of

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Lessee, in such jurisdiction, (t) Impositions relating to any Car with respect to any period after the termination of the lease of such Car and the return of such Car in accordance with this Agreement, (u) Impositions resulting from the gross negligence or willful misconduct or breach of any covenant of Lessor, (v) Impositions attributable to any transfer, assignment, lien, pledge or financing by Lessor, other than as required by this Agreement, as requested by Lessee or pursuant to Lessor’s exercise of any remedies pursuant to Section 19.B. of this Agreement or any Rider; (w) Impositions relating to maintenance, modifications or repairs for which Lessor is responsible under Section 7. A. or 20 of this Agreement, (x) Federal, state or local Impositions based on or measured by the gross or net income of Lessor, other than Impositions which are (or are in the nature of) use or rental Impositions, (y) Federal, state and local property taxes (including ad valorem taxes, to the extent such taxes are in lieu of property taxes) incurred, assessed against or levied upon the Car(s) and (z) Impositions imposed by the State of Illinois upon the purchase of Cars(s) from the Seller (such Impositions specified in clauses (s) through (z), “Lessor Taxes”). Lessee agrees to notify Lessor of any assessments of which Lessor is not otherwise aware and to cooperate with Lessor in any contest, in each case, relating to any Lessor Taxes. Lessor shall have no duty to contest any Lessor Taxes and will not be liable or accountable to Lessee therefore. Lessor shall cooperate with Lessee to permit the pursuit of any contest with respect to any Impositions for which Lessee is liable under this Section 16. Notwithstanding the foregoing, Lessee shall not be required to indemnify Lessor for any use or rental Impositions imposed by the State of Illinois, and Lessor shall reimburse Lessee for any use or rental Impositions imposed by the State of Illinois and paid by the Lessee with respect to the Cars, this Agreement or the transactions contemplated by this Agreement (and any such Impositions referred to in this sentence shall be treated as Lessor Taxes). Lessor also shall reimburse Lessee for any claims made by Seller against Lessee with respect to sales Impositions imposed upon the purchase of the Cars. Lessee will complete and file on a timely basis any returns and filings required in any taxing jurisdiction with respect to use and rental taxes imposed with respect to the Cars, this Agreement or the transactions contemplated by this Agreement (other than with respect to any such use or rental Impositions imposed on Lessor by the State of Illinois, provided, however, that Lessee shall provide to Lessor such information and assistance as Lessor shall reasonably request with respect to any such returns or filings in Illinois). Lessee’s and Lessor’s obligations under this paragraph shall survive the expiration or earlier termination of this Agreement and any Rider.

17. Indemnity. A. Lessee shall indemnify Lessor (on a net after tax basis (taking into account any tax savings available to Lessor)) from any losses, liabilities, expenses (including without limitation, the reasonable cost of investigating and defending against any claim for damages), fines or penalties, including losses related to damage caused to or by materials placed in the Car(s) (collectively, “Claims”), which may at any time be imposed upon, incurred by or asserted or awarded against Lessor in connection with: (a) the lease, sublease, use, operation, possession, storage, abandonment or return of the Car(s) during the term of this Agreement, and (b) any present or future applicable law, rule or regulation (including without limitation, common law and environmental law) related to the release, removal, discharge or disposition, whether intentional or unintentional, of any materials from or placed in a Car during the term of this Agreement, except in each case (i) any Impositions, or any Tax Benefits (it being understood that any obligation of Lessee with respect to Tax Benefits is set forth in Sections 17.B. and C. of this Agreement), or (ii) any Claims which accrue on the Car(s) while such Car is in a repair shop

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chosen by Lessor, or for which a railroad(s) has assumed full responsibility or (iii) any Claims that Lessor has assumed or agreed to pay under this Agreement or any Rider (including, without limitation, any maintenance and repairs that are not Lessee’s responsibility under Section 7.B., any modifications contemplated by Section 20 or any expenses set forth in Section 23) or (iv) any Claims relating to any Car with respect to any period after the termination of the lease of such Car and the return of such Car in accordance with this Agreement (other than Claims in connection with Lessor’s exercise of remedies after an Event of Default has occurred and is continuing) or (v) any Claims resulting from the gross negligence or willful misconduct or breach of any covenant of Lessor or (vi) any Claims for the expenses of any transfer, assignment, lien, pledge or financing by Lessor (other than Claims in connection with Lessor’s exercise of remedies after an Event of Default has occurred and is continuing).

     B. Lessee hereby represents, warrants and covenants that: (i) each of the Cars is not, and will not at any time during the term of this Lease be treated as, tax-exempt use property within the meaning of Section 168(h) of the Code; and (ii) at no time during the term of this Lease will Lessee take or omit to take, nor will it permit any sublessee or assignee to take or omit to take, any action (unless such action or omission is required by Lessor or by this Lease or any Rider), which will result in the disqualification of any Car for, or recapture of, all or any portion of the tax benefits with respect to such Car set forth in the “Tax Benefits” section of the applicable Rider (other than any tax benefits associated with foreign tax credits, the “Tax Benefits”).

     C. If as a result of a breach of any representation, warranty or covenant of the Lessee contained in this Lease or any Rider (i) tax counsel of Lessor shall provide a written opinion that there is no reasonable basis for Lessor to claim on its Federal income tax return all or any portion of the Tax Benefits with respect to the Car(s), or (ii) any Tax Benefit claimed on the Federal income tax return of Lessor is disallowed or adjusted by the Internal Revenue Service, or (iii) any Tax Benefit is recalculated or recaptured (any such determination, disallowance, adjustment, recalculation or recapture being a “Loss”), then Lessee shall pay to Lessor, as an indemnity and as additional rent, a lump-sum amount that shall equal the present value (discounted at 4.0%) of all additional federal income taxes (plus interest, penalties and additions to tax) currently payable and anticipated to be payable in future years by Lessor as a result of such indemnified Loss (and any payment due hereunder), less (but not below zero) the present value (discounted at 4.0%) of all anticipated future tax savings of Lessor resulting from such indemnified Loss or the event giving rise thereto (for purposes of this calculation, additional federal income taxes anticipated to be payable or reduced will be computed on the same basis); provided, however, that no indemnity shall be payable under this clause (C) if such Loss with respect to any Car(s) occurs as a result of (1) a change in the Internal Revenue Code of 1986, as amended, or any regulation thereunder that occurs and is effective after the Delivery Date for such Car(s), (2) any event that requires Lessee to pay Stipulated Loss Value, a settlement value, any lease termination amount, or any reimbursement or AAR Rules settlement amount, in each case, if Lessee shall have made such payment to Lessor, (3) any transfer or assignment by Lessor other than any transfer or assignment in connection with Lessor’s exercise of remedies pursuant to Section 19.B. or (4) any breach by Lessor of any covenant in this Agreement or any Rider. Such amount shall be payable within 30 days of demand accompanied by a statement describing in reasonable detail such Loss and the computation of such amount (but no earlier than the date such additional taxes are or are deemed payable by Lessor). The indemnity shall be computed on the same assumptions,

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including Federal and state tax rates as were used by Lessor in originally evaluating the transaction other than any assumption rendered untrue as a result of such Loss.

     D. If as a result of a violation by Lessee of its U.S. use covenant in Section 5 hereof during the first eight calendar years of the lease term for the applicable Rider, Lessor’s tax liability increases as a result of the foreign tax credits available for use by Lessor in such year being less than the foreign tax credits that would have been available for such year had the aggregate use of the Cars subject to such Rider outside the United States not exceeded 15% in such calendar year, Lessee shall indemnify Lessor for an amount equal to such reduction in foreign tax credits, plus any interest, penalties and additions to tax. If during any other calendar year, the aggregate use of the Cars subject to such Rider outside the United States exceeds 15% in any calendar year and the Lessor’s tax liability is reduced as a result of an increased ability to utilize foreign tax credits, Lessor shall pay Lessee an amount equal to such increase in foreign tax credits, but in no event an amount greater than the indemnity paid by Lessee under this paragraph with respect to such Cars. In the event of any dispute as to the amount due under this Section 17.D., the parties shall agree to a mutually satisfactory verification procedure, provided, however, that in no event shall Lessee have the right to review Lessor’s tax returns.

     E. All references to Lessor in this Section 17 include Lessor, the consolidated taxpayer group of which Lessor is a member, any other entity which has an ownership interest in, is owned by or is under common ownership with, Lessor and, for purposes of Section 17.A., the respective or collective officers, directors, agents and employees of each. All rights, privileges and indemnities contained in this Section 17 shall survive the expiration or other termination of this Lease, the rights, privileges and indemnities of Lessor contained herein are expressly made for the benefit of, and shall be enforceable by Lessor, its successors and assigns.

     F. Lessee will make available and furnish upon request by the Lessor for inspection and copying by the Lessor such records that are regularly maintained by the Lessee in the ordinary course of its business relating to the Car(s) as may be reasonably necessary in order for the Lessor to fulfill its tax return, filing, audit, protest and litigation obligations and to calculate the amount of any indemnity under Section 16 or 17 of this Agreement.

     G. Subject to reasonable customary conditions, Lessor will cooperate in good faith with any request by Lessee that Lessor contest any Loss for which Lessor is seeking indemnification hereunder, provided that Lessor shall control and make all decisions with respect to any such contest.

     H. If any Lessor tax savings are taken into account in computing the amount payable by Lessee to Lessor (or any amount payable by Lessor to Lessee) under this Section 17, and any of such tax savings are subsequently disallowed or, as a result of a change of law, not available to Lessor as anticipated in making such computation, Lessee shall make a further payment to Lessor to indemnify and reimburse Lessor (on an after tax basis) for the loss of such tax savings.

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18. Transfer or Assignment of Interest; Subleasing; Restrictions on Liens.

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19. Default.

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20. Mandated Modifications. If the DOT, any other governmental agency, or organization having jurisdiction over the operation, safety or use of railroad equipment, requires modifications to the Car(s) subject to this Agreement in order to qualify the Car(s) for operation in railroad interchange, Lessor shall perform such modifications at its own cost and expense (subject to the final sentence of this Section 20), and Lessee must pay an additional monthly charge of $1.75 per Car for each $100 expended by Lessor on the Car. Such obligation by Lessee arises on the date the Car is released from the shop after application of the modifications (“Modifications”). If Lessor reasonably determines that the cost of making Modifications is uneconomic (other than solely as a result of an increase following the date of the applicable Rider in the labor or material cost of such repairs), Lessor shall so notify Lessee, whereupon such Car(s) shall be deemed to have suffered an Event of Loss.

21. Substitution of Car(s). Unless as otherwise set forth in the applicable Rider, Lessor may substitute for any Car another Car of the same type and capacity with the prior consent of Lessee which consent shall not be unreasonably withheld. The rent for the substituted Car will commence upon delivery of such Car to Lessee.

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22. Transaction Expenses. Each of Lessee and Lessor shall be responsible for its own costs and expenses incurred in connection with the transactions contemplated by this Agreement and each Rider. Lessor shall be responsible for the costs and expenses of any filings with the Surface Transportation Board and the Registrar General of Canada and of the opinions of Alvord and Alvord and McCarthy Tetrault LLP with respect thereto.

23. Notice. All notices and other communications permitted or required by the provisions of this Agreement shall be in writing and shall be sent certified mail, return receipt requested, or faxed with a confirmation sheet confirming receipt attached, to the following addresses:

24. Exclusion of Warranties. LESSEE ACKNOWLEDGES AND AGREES THAT, AS BETWEEN LESSOR AND LESSEE (I) EACH CAR IS OF A SIZE, DESIGN, CAPACITY AND MANUFACTURE SELECTED BY AND ACCEPTABLE TO LESSEE, (II) LESSEE IS SATISFIED THAT EACH CAR IS SUITABLE FOR ITS PURPOSES, (III) LESSOR IS NOT A MANUFACTURER IN PROPERTY OF SUCH KIND, (IV) EACH CAR IS LEASED HEREUNDER SUBJECT TO ALL APPLICABLE LAWS AND GOVERNMENTAL REGULATIONS NOW IN EFFECT OR HEREAFTER ADOPTED, AND (V) LESSOR LEASES TO LESSEE AND LESSEE TAKES EACH CAR “AS-IS”, “WHERE-IS” AND “WITH ALL FAULTS”, AND LESSEE ACKNOWLEDGES THAT LESSOR HAS NOT MADE, AND LESSOR HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES OR REPRESENTATIONS EITHER EXPRESS OR IMPLIED, AS TO THE

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VALUE, CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, DESIGN, OPERATION, MERCHANTABILITY THEREOF OR AS TO THE TITLE, OF THE CARS, THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREOF OR CONFORMITY THEREOF TO SPECIFICATIONS, OR ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT THERETO, NOR DOES LESSOR HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH ANY CAR, it being agreed that all such risks, as between Lessor and Lessee, are to be borne by Lessee, provided that the foregoing shall not affect the obligations for maintenance and repair to which Lessor expressly agrees in this Agreement or any Rider.

25. Entire Agreement; Counterparts; Severability. This Agreement represents the entire agreement and may not be modified, altered, or amended, except by an agreement in writing signed by the parties. On or after September 30, 2005 but not later than October 31, 2005, Lessor and Lessee agree that any Initial Rider may be amended solely for the purpose of modifying the number of Cars subject to such Rider. This Agreement may be executed in any number of counterparts, each executed counterpart constituting an original and in each case such counterparts shall constitute but one and the same instrument. To the extent that any Rider would constitute chattel paper, as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest therein may be created through the transfer or possession of this Agreement in and of itself without the transfer or possession of the original of a Rider executed pursuant to this Agreement and incorporating this Agreement by reference; and no security interest in this Agreement and a Rider may be created by the transfer or possession of any counterpart of a Rider other than the original thereof, which shall be identified as the document marked “Original” and all other counterparts shall be marked “Duplicate”. Any provision of this Agreement or any Rider which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. To the extent permitted by applicable law, Lessee hereby waives any provision of any law which prohibits or renders unenforceable any provisions hereof in any respect.

26. Compliance with Laws. Lessee agrees to comply with all federal, state, and local laws, rules, and regulations promulgated by any governmental authority or industry agency or authority which has proper jurisdiction to regulate the leasing, operation, maintenance, or use of the Car(s). Lessor agrees to comply with such laws, rules and regulations applicable to railcar owners or Lessors promulgated by such authority or agency which has proper jurisdiction to regulate the ownership and leasing and maintenance procedures applicable to the Car(s).

27. Applicable Law. The terms of this Agreement will be governed by the internal laws of the State of Illinois (without reference to conflicts of law provisions).

28. Survival. The representations, warranties and agreements of Lessee herein shall be deemed to be continuing and to survive the execution and delivery of this Agreement, each Rider and any other Operative Agreement to which Lessee or Lessor is a party. With respect to each Rider, the obligations of Lessee and Lessor under Sections 7, 8, 10, 16, 17, 20 and 22 hereof, together with any of Lessee’s or Lessor’s obligations under the other provisions of this Agreement (as

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incorporated therein) which have accrued but not been fully satisfied, performed or complied with prior to the expiration or earlier cancellation or termination of such Rider, shall survive the expiration or earlier cancellation or termination thereof.

29. Financial Statements; Reports; Insurance Certificate Grant of Security Interest; Further Assurances.

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30. Definitions and Rules of Construction. A. The following terms when used in this Agreement or in any Rider have the following meanings:

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31. True Lease. It is the intent of the parties to this Agreement that each Rider incorporating this Agreement be, such Rider shall be, a true lease for all tax purposes and that Lessor shall be entitled to any and all federal and state tax credits and benefits available to the owner of the Car(s). Lessor shall at all times be the owner of the Car(s) which are the subject of such Rider for all purposes, such Rider conveying to Lessee no right, title or interest in any Car(s) except as lessee.

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[signature page follows]

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          IN WITNESS WHEREOF, the parties hereto intending to be legally bound hereby have caused this Lease Agreement to be duly executed by their respective authorized representatives all as of the day and year first above written.

          IN WITNESS WHEREOF, the parties hereto intending to be legally bound hereby have caused this Lease Agreement to be duly executed by their respective authorized representatives all as of the day and year first above written.