exv10w26



 




Exhibit 10.26



PURCHASE AND CONTRIBUTION AGREEMENT




among




TRINITY RAIL LEASING TRUST II,




TRINITY INDUSTRIES LEASING COMPANY




and




TRINITY RAIL LEASING V L.P.




Dated as of May 24, 2006















 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS
	 	 	1	 
	SECTION 1.1 General
	 	 	1	 
	SECTION 1.2 Specific Terms
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II CONVEYANCE OF THE RAILCARS AND LEASES
	 	 	4	 
	SECTION 2.1 Conveyance of the Railcars and Leases
	 	 	4	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS OF CONVEYANCE
	 	 	7	 
	SECTION 3.1 Conditions Precedent to Conveyance
	 	 	7	 
	SECTION 3.2 Conditions Precedent to All Conveyances
	 	 	8	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	8	 
	SECTION 4.1 Representations and Warranties of TRLT-II Seller—General
	 	 	8	 
	SECTION 4.2 Representations and Warranties of TILC Seller—General
	 	 	10	 
	SECTION 4.3 Representations and Warranties of Seller—Assets
	 	 	12	 
	SECTION 4.4 Representations and Warranties of the Purchaser
	 	 	14	 
	SECTION 4.5 Indemnification
	 	 	16	 
	SECTION 4.6 Special Indemnification by TILC regarding Exercise of Setoff
by Customers
	 	 	17	 
	 
	 	 	 	 
	ARTICLE V COVENANTS OF SELLER
	 	 	18	 
	SECTION 5.1 Protection of Title of the Purchaser
	 	 	18	 
	SECTION 5.2 Other Liens or Interests
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VI MISCELLANEOUS
	 	 	19	 
	SECTION 6.1 Amendment
	 	 	19	 
	SECTION 6.2 Notices
	 	 	19	 
	SECTION 6.3 Merger and Integration
	 	 	20	 
	SECTION 6.4 Severability of Provisions
	 	 	20	 
	SECTION 6.5 Governing Law
	 	 	20	 
	SECTION 6.6 Counterparts
	 	 	20	 
	SECTION 6.7 Binding Effect; Assignability
	 	 	20	 
	SECTION 6.8 Third Party Beneficiaries
	 	 	21	 
	SECTION 6.9 Term
	 	 	21	 






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	EXHIBIT A

	 	FORM OF BILL OF SALE
	 	Exh. A
	 
	 	 	 	 
	EXHIBIT B

	 	FORM OF ASSIGNMENT AND ASSUMPTION
	 	Exh. B
	 
	 	 	 	 
	EXHIBIT C

	 	DELIVERY SCHEDULE ON THE INITIAL CLOSING DATE
	 	Exh. C







ii









 







Execution Copy







PURCHASE AND CONTRIBUTION AGREEMENT




          THIS PURCHASE AND CONTRIBUTION AGREEMENT is made as of May 24, 2006 (this “Agreement”)
by and among Trinity Rail Leasing Trust II, a Delaware statutory trust, (“TRLT-II” or the
“TRLT-II Seller”), Trinity Industries Leasing Company, a Delaware corporation
(“TILC” or the “TILC Seller”; TRLT-II and TILC are sometimes hereinafter
collectively referred to as “Sellers” or individually as a “Seller”) and Trinity
Rail Leasing V L.P., a Texas limited partnership (“Purchaser”).




W I T N E S S E T H:




          WHEREAS, the Purchaser has agreed to purchase from TRLT-II from time to time, and TRLT-II has
agreed to Sell (as hereinafter defined) to the Purchaser from time to time, certain of its
Railcars, Leases thereof and Related Assets (each as hereinafter defined) related thereto on the
terms set forth herein.




          WHEREAS, during the period prior to their sale hereunder, TILC has acted as manager and
servicing agent for TRLT-II, pursuant to the TRLT-II Management Agreement (as hereinafter defined),
with respect to the Railcars, Leases thereof and Related Assets that TRLT-II may Sell from time to
time hereunder (TILC in such capacity, the “TRLT-II Manager”).




          WHEREAS, TILC may also wish from time to time, in its individual capacity, to Sell/Contribute
(as hereinafter defined) certain of its Railcars, Leases thereof and Related Assets and the
Purchaser may wish to purchase from and accept such contribution to the capital of the Purchaser on
the terms set forth herein.




          NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter
contained, and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Purchaser and each Seller, intending to be legally bound, hereby agree as
follows:




ARTICLE I




DEFINITIONS




          SECTION 1.1 General. The specific terms defined in this Article include the plural as well
as the singular. Words herein importing a gender include the other gender. References herein to
“writing” include printing, typing, lithography, and other means of reproducing words in visible
form. References to agreements and other contractual instruments include all subsequent amendments
thereto or changes therein entered into in accordance with their respective terms. References
herein to Persons include their successors and assigns permitted hereunder or under the Indenture.
The terms “include” or “including” mean “include without limitation” or “including
without
limitation”. The words “herein”, “hereof” and “hereunder” and other words of similar import refer
to this Agreement as a whole and not to any











 








particular Article, Section or other subdivision, and
Article, Section, Schedule and Exhibit references, unless otherwise specified, refer to Articles
and Sections of and Schedules and Exhibits to this Agreement. Capitalized terms used herein but
not defined herein shall have the respective meanings assigned to such terms in the Master
Indenture (as defined in Section 1.2 below).




          SECTION 1.2 Specific Terms. Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following meanings:




          “After-Tax Basis” means, with respect to any payment due to any Person, the amount of
such payment supplemented by a further payment or payments so that the sum of all such payments,
after reduction for all Taxes payable by such Person by reason of the receipt or accrual of such
payments, shall be equal to the payment due to such Person.




          “Appraised Value” means the appraised value of a Railcar as set forth in the Appraisal
thereof.




          “Assignment and Assumption” means an Assignment and Assumption executed by the
applicable Seller, with countersignature block set forth thereon for execution by the Purchaser,
substantially in the form of Exhibit B attached hereto.




          “Bill of Sale” means a Bill of Sale executed by the applicable Seller substantially in
the form of Exhibit A attached hereto.




          “Contribution” has the meaning set forth in Section 2.1(a).




          “Convey” means to Sell and/or Sell/Contribute Railcars, Leases and Related Assets
hereunder.




          “Conveyance” means, collectively, a Sale and/or Sale/Contribution of Railcars, Leases
and Related Assets by a Seller to the Purchaser.




          “Delivery Date” has the meaning assigned such term in the Master Indenture.




          “Delivery Schedule” means a schedule, substantially in the form of the initial
schedule delivered on the Initial Closing Date and attached as Exhibit C hereto, in each
case duly executed and delivered by a Seller to the Purchaser on a Delivery Date, which shall
identify the Railcars to be Conveyed on such Delivery Date and identify each Lease relating to any
such Railcar, and shall further identify among such Leases, those that are subject to a purchase
option or a renewal or extension option.




          “Excluded Amounts” has the meaning set forth in Section 4.5(a).




          “Indenture” means the Master Indenture, as supplemented by the Series 2006-1
Supplement thereto and as supplemented by any subsequent Series Supplements thereto that may be
entered into from time to time between the Issuer and the Indenture Trustee.




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          “Indenture Trustee” means Wilmington Trust Company, as trustee under the Indenture.




          “Lease” means a lease, car contract or other agreement granting permission for the use
of any Railcar, constituting an operating lease of such Railcar.




          “Management Agreement” means that certain Operating, Maintenance, Servicing and
Remarketing Agreement dated as of the date hereof between Purchaser and TILC, as manager
thereunder, relating to the Railcars, Leases and Related Assets that are Conveyed from time to time
hereunder.




          “Master Indenture” means that certain Master Indenture dated as of the date hereof
between Purchaser and Indenture Trustee, including all schedules, all exhibits and the annex
thereto.




          “Purchase Price” means, with respect to any Railcars, Leases and Related Assets
conveyed to Purchaser from time to time pursuant hereto, an amount equal to the aggregate Appraised
Value of the Railcars so Conveyed, as set forth in the related Appraisal.




          “Purchaser” has the meaning specified in the Preamble.




          “Railcars” has the meaning assigned to such term in the Master Indenture.




          “Related Assets” means, with respect to any Railcar or Lease that is Conveyed
hereunder on any Delivery Date, all of the applicable Seller’s right, title and interest in and to
the following (as applicable):




          (a) with respect to such Railcar, (i) all licenses, manufacturer’s warranties and other
warranties, Supporting Obligations, Payment Intangibles, Chattel Paper, General Intangibles and all
other rights and obligations related to such Railcar, (ii) all Railroad Mileage Credits allocable
to such Railcar and any payments in respect of such credits accruing on or after the applicable
Delivery Date, (iii) all tort claims or any other claims of any kind or nature related to such
Railcar and any payments in respect of such claims, (iv) all Marks attaching to such Railcar
(including as evidenced by any SUBI Certificate issued by the Marks Company) and (v) all other
payments owing by any Person (including any railroads or similar entities) in respect of or
attributable to such Railcar or the use, loss, damage, casualty, condemnation of such Railcar or
the Marks associated therewith, in each case whether arising by contract, operation of law, course
of dealing, industry practice or otherwise; and




          (b) with respect to such Lease, all Supporting Obligations, Payment Intangibles, Chattel
Paper, General Intangibles and all other rights and obligations related to any such Lease,
including, without limitation, (i) all rights, powers, privileges, options and other benefits of
the applicable Seller to receive moneys and other property due and to become due under or pursuant
to such Lease, including, without limitation, all rights, powers, privileges,
options and other benefits to receive and collect rental payments, income, revenues, profits
and other amounts, payments, tenders or security (including any cash collateral) from any other
party thereto, (ii) all rights, powers, privileges, options and other benefits of the applicable
Seller to receive proceeds of any casualty insurance, condemnation award, indemnity, warranty or

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guaranty with respect to such Lease, (iii) all claims for damages arising out of or for breach of
or default under such Lease and (iv) the rights, powers, privileges, options and other benefits of
the applicable Seller to perform under such Lease, to compel performance and otherwise exercise all
remedies thereunder and to terminate any such Lease.




          “Sale” means, with respect to any Person, the sale, transfer, assignment or other
conveyance, of the assets or property in question by such Person, and “Sell” means that
such Person sells, transfers, assigns or otherwise conveys the assets or property in question.




          “Sell/Contribute” and “Sale/Contribution” have the meanings specified in
Section 2.1(a).




          “Series Supplement” has the meaning assigned to such term in the Master Indenture.




          “Series Supplement Closing Date” means the date of issuance of a Series of Equipment
Notes pursuant to a Series Supplement after the Initial Closing Date.




          “STB” means the Surface Transportation Board of the United States Department of
Transportation or any successor thereto.




          “TRLT-II Manager” means TILC, acting in its capacity as “Manager” for TRLT-II under
the TRLT-II Management Agreement.




          “TRLT-II Management Agreement” means that certain Operating, Maintenance, Servicing
and Remarketing Agreement dated as of the date hereof between TRLT-II and TILC, as manager
thereunder, relating to the Railcars, Leases and Related Assets that are Conveyed from time to time
hereunder by TRLT-II Seller.




ARTICLE II




CONVEYANCE OF THE RAILCARS AND LEASES




          SECTION 2.1 Conveyance of the Railcars and Leases.




          (a) Subject to the terms and conditions of this Agreement, on and after the date of this
Agreement,





     (i) TRLT-II Seller hereby agrees to Sell to the Purchaser, without recourse (except to
the extent specifically provided herein or in the applicable Bill of Sale and
Assignment and Assumption), all right, title and interest of TRLT-II Seller in and to
certain Railcars and Leases (and Related Assets) held by TRLT-II Seller as identified from
time to time on a Delivery Schedule delivered by TRLT-II Seller in accordance with this
Agreement, and



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     (ii) TILC Seller hereby agrees to Sell to the Purchaser, without recourse (except to
the extent specifically provided herein or in the applicable Bill of Sale and Assignment and
Assumption), all right, title and interest of TILC Seller in and to certain Railcars and
Leases (and Related Assets) held by TILC Seller as identified from time to time on a
Delivery Schedule delivered by TILC Seller in accordance with this Agreement,
provided, that to the extent that the portion of the Purchase Price for such sale
paid by the Purchaser to TILC Seller in cash is less than the total dollar amount of the
Purchase Price, the balance shall be deemed to have been contributed (a
“Contribution”) by TILC Seller as capital (through the Purchaser’s sole general
partner and sole limited partner, which are each 100% directly owned by TILC Seller) to the
Purchaser (such transaction in the aggregate, a “Sale/Contribution”),



          (b) and the Purchaser in each case hereby agrees to purchase, acquire, accept and assume
(including by an assumption of the obligations of the “lessor” under such Leases), all right, title
and interest of each such Seller in and to such Railcars, Leases and Related Assets. Each Seller
hereby acknowledges that each Conveyance by it to the Purchaser hereunder is absolute and
irrevocable, without reservation or retention of any interest whatsoever by such Seller.




          (c) The Sales of Railcars, Leases and Related Assets by TRLT-II Seller to the Purchaser and
the Sales or Sales/Contributions (as the case may be) of Railcars, Leases and Related Assets by
TILC Seller to the Purchaser pursuant to this Agreement are intended to be absolute assignments
(free and clear of any Encumbrances) of all of the applicable Seller’s right, title and interest
in, to and under such Railcars, Leases and Related Assets for all purposes and, except to the
extent specifically provided herein or in the applicable Bill of Sale and Assignment and
Assumption, without recourse.




          (d) It is the intention of each Seller and the Purchaser (i) that all Conveyances of Railcars,
Leases and Related Assets be true sales and/or contributions, as applicable, constituting absolute
assignments and “true sales” for bankruptcy law purposes by the applicable Seller to the Purchaser,
that are absolute and irrevocable and that provide the Purchaser with the full benefits of
ownership of the assets so Conveyed and (ii) that the Railcars, Leases and Related Assets that are
Conveyed to the Purchaser pursuant to this Agreement shall not be part of the applicable Seller’s
estate in the event of the filing of a bankruptcy petition by or against such Seller under any
bankruptcy or similar law. Neither any Seller nor the Purchaser intends that (x) the transactions
contemplated hereunder be, or for any purpose be characterized as, loans from the Purchaser to the
applicable Seller or (y) any Conveyance of Railcars, Leases and/or Related Assets by any Seller to
the Purchaser be deemed a grant of a security interest in the assets so Conveyed by such Seller to
the Purchaser to secure a debt or other obligation of such Seller (except in the limited
circumstance contemplated in subsection (d) immediately below).




          (e) In the event that any Conveyances pursuant to this Agreement are deemed to be a secured
financing (or are otherwise determined not to be absolute assignments of all of the applicable
Seller’s right, title and interest in, to and under the Railcars, Leases and Related Assets so
Conveyed, or purportedly so Conveyed hereunder), then (i) the applicable Seller shall be deemed
hereunder to have granted to the Purchaser, and such Seller does hereby grant to the Purchaser, a
security interest in all of such Seller’s right, title and interest in, to and under such

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Railcars,
Leases and Related Assets so Conveyed or purported to be Conveyed, securing the purported repayment
obligation presumably deemed to exist in respect of such deemed secured financing, and (ii) this
Agreement shall constitute a security agreement under applicable law.




          (f) The TRLT-II Seller shall on the Initial Closing Date, and either or both the TRLT-II
Seller and/or the TILC Seller shall, as the case may be, on any Series Supplement Closing Date or
other Delivery Date, deliver to the Purchaser a Delivery Schedule identifying the Railcars and
Leases to be Conveyed by such Seller to the Purchaser on such date.




          (g) The price paid for Railcars, Leases and Related Assets which are Conveyed hereunder shall
be the Purchase Price with respect thereto. Such Purchase Price shall be paid





     (i) in the case of TRLT-II Seller, by means of the Purchaser’s immediate cash payment
in the full amount of the Purchase Price to TRLT-II Seller by wire transfer on the Initial
Closing Date (or any later Series Supplement Closing Date or other Delivery Date, as
applicable) in respect of which TRLT-II Seller has delivered a Delivery Schedule, and




     (ii) in the case of TILC Seller, by means of the Purchaser’s immediate cash payment of
the portion of the Purchase Price that the Purchaser has available to it for such purpose
(including from net proceeds derived from its issuance of a Series of Equipment Notes on
such Delivery Date, or from Disposition Proceeds held in the Mandatory Replacement Account
or the Optional Reinvestment Account), to TILC Seller by wire transfer on the applicable
Deliver Date in respect of which TILC Seller has delivered a Delivery Schedule, with the
Contributed remainder of such Purchase Price to be reflected by means of proper accounting
entries being entered upon the accounts and records of TILC Seller and Purchaser,


with such wire transfers in each case to be made to an account designated by the applicable Seller
to the Purchaser on or before the applicable Delivery Date.




          (h) On and after each Delivery Date and related Purchase Price payment as aforesaid, the
Purchaser shall own the Railcars, Leases and Related Assets Conveyed to the Purchaser on such date,
and the applicable Seller shall not take any action inconsistent with such ownership and shall not
claim any ownership interest in such assets.




          (i) Until the occurrence of a Manager Termination Event and the replacement of TILC as Manager
pursuant to the terms of the Management Agreement, TILC, as Manager, shall conduct the
administration, management and collection of the Railcars, Leases and Related Assets Conveyed to
Purchaser pursuant hereto and shall take, or cause to be taken, all such
actions as may be necessary or advisable to administer, manage and collect such Conveyed
Railcars, Leases and Related Assets, from time to time, all in accordance with the terms of the
Management Agreement.




          (j) On each Delivery Date, the applicable Seller shall deliver or cause to be delivered to the
Purchaser (or to an assignee thereof, as directed by the Purchaser) each item

6









 








required on such date
to be delivered by such Seller and any chattel paper (as defined in the UCC) representing or
evidencing, the Leases being Conveyed on such Delivery Date.




ARTICLE III




CONDITIONS OF CONVEYANCE




          SECTION 3.1 Conditions Precedent to Conveyance. Each Conveyance hereunder is subject to
the condition precedent that the Purchaser shall have received, and the Indenture Trustee and each
Series Enhancer shall have received copies of, all of the following on or before the applicable
Delivery Date, in form and substance satisfactory to the Purchaser and the Requisite Majority:





     (i) a Delivery Schedule executed by the applicable Seller and setting forth the
Railcars and Leases to be Conveyed on the applicable Delivery Date pursuant to this
Agreement;




     (ii) a related Bill of Sale;




     (iii) a related Assignment and Assumption;




     (iv) an Appraisal of the Railcars to be conveyed, with such Appraisal dated no earlier
than 30 days prior to the applicable Delivery Date;




     (v) copies of proper UCC financing statements, STB or Registrar General of Canada
filings, accurately describing the Conveyed Railcars and Leases and naming the applicable
Seller as the “Debtor/Seller” and Purchaser as “Secured Party/Purchaser”, or applicable
filings with the STB or with the Registrar General of Canada, other similar instruments or
documents, all in such manner and in such places as may be required by law or as may be
necessary or, in the opinion of the Purchaser or the Indenture Trustee (acting at the
direction of the Requisite Majority), desirable to perfect the Purchaser’s interest in all
Conveyed Railcars and Leases and Related Assets;




     (vi) copies of proper UCC financing statement terminations or partial terminations, STB
or Registrar General of Canada filings, accurately describing the Conveyed Railcars and
Leases, or other similar instruments or documents, in form and substance sufficient for
filing under applicable law of any and all jurisdictions as may be necessary to effect or
evidence a release or termination of any pre-existing Encumbrance evidenced by an existing
filing of record against the Conveyed Railcars and Leases and Related Assets;




     (vii) a confirmation or written advice to similar effect from counsel to the Purchaser,
addressed to the Indenture Trustee and each Series Enhancer, reasonably acceptable to the
Indenture Trustee and each Series Enhancer that the conveyance constitutes a true sale and
that Purchaser would not be consolidated in connection with a bankruptcy of the Seller; and



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     (viii) in the case of a Delivery Date occurring in connection with the Initial Closing
Date or a Series Supplement Closing Date, such deliveries, and the satisfaction of such
other conditions, as are set forth in the related Series Supplement with respect to the
issuance of the related Series of Equipment Notes of the Purchaser or otherwise required for
the issuance of such Equipment Notes.



          SECTION 3.2 Conditions Precedent to All Conveyances. The Conveyances to take place on any
Delivery Date hereunder shall be subject to the further conditions precedent that:





     (a) The following statements shall be true:




     (i) the representations and warranties of each applicable Seller contained in
Article IV shall be true and correct on and as of such Delivery Date, both before
and after giving effect to the Conveyance to take place on such Delivery Date and to the
application of proceeds therefrom, as though made on and as of such date; and




     (ii) such Seller shall be in compliance with all of its covenants and other agreements
set forth in this Agreement and the other Operative Agreements to which it is a party.



          (b) Purchaser shall have received a Delivery Schedule, dated the date of the applicable
Delivery Date, executed by the applicable Seller, listing the Railcars and Leases being Conveyed on
such date.




          (c) The applicable Seller shall have taken such other action, including delivery of approvals,
consents, opinions, documents and instruments to the Purchaser, as the Purchaser or the Indenture
Trustee (acting at the direction of the Requisite Majority) or any Series Enhancer may reasonably
request.




          (d) The applicable Seller shall have taken all steps necessary under all applicable law in
order to Convey to the Purchaser the Railcars described on the applicable Delivery Schedules, all
Leases related to such Railcars and all Related Assets related to such Railcars and/or Leases, and
upon the Conveyance of such Railcars, Leases and Related Assets from the applicable Seller to the
Purchaser pursuant to the terms hereof, the Purchaser will have acquired on such date good and
marketable title to and a valid and perfected ownership interest in the Conveyed Railcars, Leases
and Related Assets, free and clear of any Encumbrance (other than Permitted Encumbrances).




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          SECTION 4.1 Representations and Warranties of TRLT-II Seller—General. TRLT-II Seller
makes the following representations and warranties for the benefit of the Purchaser, the Indenture
Trustee, each Series Enhancer, each Noteholder and each other Secured Party, on which the Purchaser
relies in acquiring the Railcars, Leases and Related Assets

8









 








Conveyed by it hereunder. Such
representations are made as of the Initial Closing Date, as of each other Delivery Date and at such
other times specified below.




          (a) TRLT-II is a statutory trust duly organized, validly existing, and in good standing under
the laws of the State of Delaware, is duly licensed or qualified and in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse effect on its ability
to carry on its business as now conducted or to execute, deliver and perform its obligations under
the TRLT-II Agreements, has the power and authority to carry on its business as now conducted, and
has the requisite power and authority to execute, deliver and perform its obligations under the
TRLT-II Agreements.




          (b) The TRLT-II Agreements have been duly authorized by all necessary entity action, executed
and delivered by TRLT-II, and (assuming the due authorization, execution and delivery by each other
party thereto) constitute the legal, valid and binding obligations of TRLT-II, enforceable against
TRLT-II in accordance with their respective terms except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity.




          (c) The execution, delivery and performance by TRLT-II of each TRLT-II Agreement and
compliance by TRLT-II with all of the provisions thereof do not and will not contravene (i) any law
or regulation, or any order of any court or governmental authority or agency applicable to or
binding on TRLT-II or any of its properties, or (ii) the provisions of, or constitute a default by
TRLT-II under, its certificate of trust or trust agreement or (iii) any indenture, mortgage,
contract or other agreement or instrument to which TRLT-II is a party or by which TRLT-II or any of
its properties may be bound or affected.




          (d) There are no proceedings pending or, to the knowledge of TRLT-II, threatened against
TRLT-II in any court or before any governmental authority or arbitration board or tribunal.




          (e) TRLT-II is not (x) in violation of any term of any charter instrument or operating
agreement or (y) in violation or breach of on in default under any other agreement or instrument to
which it is a party or by which it may be bound except, in the case of clause (y), where such
violation would not reasonably be expected to materially adversely affect TRLT-II’s ability to
perform its obligations under the TRLT-II Agreements or materially adversely affect its financial
condition or business. TRLT-II is in compliance with all laws, ordinances, governmental rules and
regulations to which it is subject, the failure to comply with which would have a material and
adverse effect on its operations or condition, financial or otherwise, or would
impair the ability of TRLT-II to perform its obligations under the TRLT-II Agreements, and has
obtained all licenses, permits, franchises and other governmental authorizations material to the
conduct of its business.




          (f) No consent, approval or authorization of, or filing, registration or qualification with,
or the giving of notice to, any trustee or any holder of indebtedness of TRLT-II or any
governmental authority on the part of TRLT-II is required (x) in connection with the execution and
delivery by TRLT-II of the TRLT-II Agreements, or (y) to be obtained in order for TRLT-II to
perform its obligations thereunder in accordance with the terms thereof, other than in

9









 








the case of
clause (y) those which are routine in nature and are not normally applied for prior to the time
they are required, and which TRLT-II has no reason to believe will not be timely obtained.




          (g) The location of TRLT-II (within the meaning of Article 9 of the UCC) is in the State of
Delaware. TRLT-II has not been known by any name other than Trinity Rail Leasing Trust II, and is
not known by any trade names.




          (h) TRLT-II is solvent and will not become insolvent after giving effect to any Conveyance
contemplated by this Agreement; after giving effect to each Conveyance contemplated by this
Agreement, TRLT-II will have an adequate amount of capital to conduct its business in the
foreseeable future; and TRLT-II does not intend to incur, nor believe that it has incurred, debts
beyond its ability to pay as they mature.




          (i) TRLT-II will treat the transactions effected by this Agreement as sales of assets to the
Purchaser in accordance with GAAP. TRLT-II’s financial records shall reflect that the Railcars and
Leases Conveyed hereunder have been Conveyed to the Purchaser, are no longer owned by TRLT-II and
are not intended to be available to the creditors of TRLT-II.




          SECTION 4.2 Representations and Warranties of TILC Seller—General. TILC Seller makes the
following representations and warranties for the benefit of the Purchaser, the Indenture Trustee,
each Series Enhancer, each Noteholder and each other Secured Party, on which the Purchaser relies
in acquiring the Railcars, Leases and Related Assets Conveyed by it hereunder. Such
representations are made as of the Initial Closing Date, as of each other Delivery Date and at such
other times specified below.




          (a) TILC is a corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, is duly licensed or qualified and in good standing in each
jurisdiction in which the failure to so qualify would reasonably be expected to have a material
adverse effect on its ability to carry on its business as now conducted or as contemplated to be
conducted or to execute, deliver and perform its obligations under the TILC Agreements, has the
power and authority to carry on its business as now conducted and as contemplated to be conducted,
and has the requisite power and authority to execute, deliver and perform its obligations under the
TILC Agreements.




          (b) The TILC Agreements have been duly authorized by all necessary corporate action, executed
and delivered by TILC, and (assuming the due authorization, execution and delivery by each other
party thereto) constitute the legal, valid and binding
obligations of TILC, enforceable against TILC in accordance with their respective terms except
as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and by general principles of equity.




          (c) The execution, delivery and performance by TILC of each TILC Agreement and compliance by
TILC with all of the provisions thereof do not and will not contravene or, in the case of clause
(iii), constitute (alone or with notice, or lapse of time or both) a default under or result in any
breach of, or result in the creation or imposition of any Encumbrance upon any property of TILC
pursuant to, (i) any law or regulation, or any order,




10









 







judgment, decree, determination or award of
any court or governmental authority or agency applicable to or binding on TILC or any of its
properties, or (ii) the provisions of its certificate of incorporation or bylaws or (iii) any
indenture, mortgage, contract or other agreement or instrument to which TILC is a party or by which
TILC or any of its properties may be bound or affected except, with respect to clause (iii), where
such contravention, default or breach would not reasonably be expected to materially adversely
affect TILC’s ability to perform its obligations under the TILC Agreements or materially adversely
affect its financial condition or business;




          (d) There are no proceedings pending or, to the knowledge of TILC, threatened against TILC in
any court or before any governmental authority or arbitration board or tribunal that, if adversely
determined, would reasonably be expected to materially adversely affect TILC’s ability to perform
its obligations under the TILC Agreements or materially adversely affect its financial condition or
business.




          (e) TILC is not (x) in violation of any term of any charter instrument or bylaw or (y) in
violation or breach of or in default under any other agreement or instrument to which it is a party
or by which it or any of its property may be bound except in the case of clause (y) where such
violation, breach or default would not reasonably be expected to materially adversely affect TILC’s
ability to perform its obligations under the TILC Agreements or materially adversely affect its
financial condition or business. TILC is in compliance with all laws, ordinances, governmental
rules, regulations, orders, judgments, decrees, determinations and awards to which it is subject,
the failure to comply with which would reasonably be expected to have a material and adverse effect
on its operations or condition, financial or otherwise, or would impair the ability of TILC to
perform its obligations under the TILC Agreements, and has obtained all required licenses, permits,
franchises and other governmental authorizations material to the conduct of its business.




          (f) No consent, approval or authorization of, or filing, registration or qualification with,
or the giving of notice to, any trustee or any holder of indebtedness of TILC or any governmental
authority on the part of TILC is required in the United States in connection with the execution and
delivery by TILC of the TILC Agreements, or is required to be obtained in order for TILC to perform
its obligations thereunder in accordance with the terms thereof, other than (i) as may be required
under existing laws, ordinances, governmental rules and regulations to be obtained, given,
accomplished or renewed at any time after the Initial Closing Date or other applicable Delivery
Date in connection with the performance of its obligations under the TILC Agreements and which are
routine in nature and are not normally applied for prior to the time they are required, and which
TILC has no reason to believe will not be timely
obtained, and (ii) as may have been previously obtained in accordance with clause (i)
immediately above.




          (g) The location of TILC (within the meaning of Article 9 of the UCC) is in the State of
Delaware. TILC has not been known by any name other than Trinity Industries Leasing Company, and
is not known by any trade names.




          (h) TILC is solvent and will not become insolvent after giving effect to any Conveyance
contemplated by this Agreement, and after giving effect to any Conveyances

11









 








contemplated by this
Agreement, TILC will have an adequate amount of capital to conduct its business in the foreseeable
future, and TILC does not intend to incur, nor believe that it has incurred, debts beyond its
ability to pay as they mature.




          (i) TILC will treat the transactions effected by this Agreement as sales of assets to, and/or
contributions of assets to the capital of, the Purchaser in accordance with GAAP. TILC’s financial
records shall reflect that the Railcars and Leases Conveyed hereunder have been Conveyed to the
Purchaser, are no longer owned by TILC and are not intended to be available to the creditors of
TILC.




          SECTION 4.3 Representations and Warranties of Seller—Assets. The following representations
and warranties are made (i) with respect to each Delivery Date on which TRLT-II is to Convey assets
to the Purchaser, by TILC, in its capacity as TLRT-II Manager, with respect to each representation
expressed as a representation of TLRT-II as “Seller”, and (ii) with respect to each Delivery Date
on which TILC is to Convey assets to the Purchaser, by TILC for its own account, and in each case
are made for the benefit of the Purchaser, the Indenture Trustee, each Series Enhancer, each
Noteholder and each other Secured Party as of the date of any Delivery Schedule delivered by the
applicable Seller to the Purchaser and solely with respect to the Railcars and Leases that are
referred to in such Delivery Schedule and the Related Assets in respect of such Railcars and
Leases.




          (a) To the best knowledge of Seller, no casualty event or other event that may constitute a
Total Loss or makes repair of the applicable Railcar uneconomic or renders such Railcar unfit for
commercial use or constitutes theft or disappearance of the applicable Railcar has occurred with
respect to a Railcar being Conveyed.




          (b) (i) The Seller has, and the Bill of Sale to be delivered on the Delivery Date shall convey
to the Purchaser, all legal and beneficial title to the Railcars (and Related Assets in respect of
such Railcars) that are being Conveyed, free and clear of all Encumbrances (other than Permitted
Encumbrances of the type described in clauses (ii), (iii), (iv), (v) and (viii) of the definition
thereof), and such conveyance constitutes a valid and absolute transfer (each such contribution or
sale, as the case may be, constituting a “true sale” for bankruptcy law purposes) of all right,
title and interest of the Seller in, to an under the Railcars (and Related Assets in respect of
such Railcars) being Conveyed and will not be void or voidable under any applicable law; (ii) the
Seller has, and the Assignment and Assumption to be delivered on the Delivery Date shall assign to
the Purchaser, all legal and beneficial title to the Leases (and Related Assets in respect of such
Leases) that are being Conveyed, free and clear of all Encumbrances (other than
Permitted Encumbrances of the type described in clauses (ii), (iii), (iv), (v) and (viii) of
the definition thereof), and such assignment constitutes a valid and absolute transfer (each such
contribution or sale, as the case may be, constituting a “true sale” for bankruptcy law purposes)
of all right, title and interest of the Seller in, to an under the Leases (and Related Assets in
respect of such Leases) being Conveyed and will not be void or voidable under any applicable law;
(iii) the Railcars being Conveyed on a Delivery Date are subject to Leases to the extent required
under the Master Indenture in respect of such Conveyance, and (iv) all Leases relating to such
Railcars are on rental and other terms that are no different, taken as a whole, from those for
similar Railcars in the rest of the TILC Fleet.




12









 








          (c) All sales, use or transfer taxes, if any, due and payable upon the Conveyance of the
Railcars, Leases and Related Assets being Conveyed on the applicable Delivery Date will have been
paid or such transactions will then be exempt from any such taxes and the Seller (or TRLT-II
Manager, in the case of TRLT-II Seller) will cause any required forms or reports in connection with
such taxes to be filed in accordance with applicable laws and regulations.




          (d) The Railcars being Conveyed are substantially similar, in terms of objectively
identifiable characteristics that are relevant for purposes of the services to be performed by TILC
under the Management Agreement, to the equipment in the TILC Fleet.




          (e) In selecting the Railcars to be sold to the Purchaser, the Seller has not discriminated
against the Purchaser in a negative fashion when such Railcars are compared with the other railcars
in the TILC Fleet.




          (f) The Seller is not in default of its obligations as “lessor” (or other comparable capacity)
under any Lease, and, to the best of the Seller’s knowledge, there are (i) no defaults existing as
of the date of Conveyance by any Lessee under any Lease, except such defaults that are not payment
defaults (except to a de minimus extent (but giving effect to any applicable grace periods)) and
are not material defaults under the applicable Lease, and (ii) no claims or liabilities arising as
a result of the operation or use of any Railcar prior to the date hereof, as to which the Purchaser
would be or become liable, except for ongoing maintenance and other obligations of the “lessor”
provided for under full-service Leases, which obligations are required to be performed by the
Manager pursuant to the Management Agreement.




          (g) None of the Railcars being Conveyed are subject to a purchase option under the terms of
the related Lease except as described in the related Delivery Schedule, and each such purchase
option is a Permitted Purchase Option.




          (h) [Reserved].




          (i) All written information provided by the Seller or any Affiliate of the Seller to the
Appraiser with respect to the Railcars and Leases being Conveyed is true and correct in all
material respects. All written information provided by the Seller or any Affiliate of the Seller
to Deloitte & Touche LLP with respect to the Leases is true and correct in all material respects
and accurately reflects the terms of the Leases. To the extent the written information referred to
in this clause (i) was provided to the Appraiser and Deloitte & Touche LLP, in each case for their
use in connection with their services rendered in connection with Conveyances contemplated
hereby, such entities have been provided with the same written information (or relevant portions
thereof).




          (j) None of the Leases contain any renewal or extension options except for such options that
are described in the Delivery Schedule.




          (k) All information provided in the applicable Delivery Schedule, including each schedule
thereto, is true and correct on and as of the Delivery Date, including without limitation, all
information provided therein with respect to each Railcar purported to be covered thereby and all
information provided therein with respect to each Lease relating to any such




13









 







Railcar. All other
information concerning the Railcars, Leases and Related Assets covered by the applicable Delivery
Schedule that was provided to the Issuer, the Indenture Trustee or any Series Enhancer prior to the
related Delivery Date was true and correct in all material respects as of the date it was so
provided.




          (l) No Default, Event of Default or Manager Termination Event has occurred and is continuing
on the Delivery Date, and no event that, with the giving of notice, the passage of time or both,
would constitute a Manager Termination Event has occurred and is continuing on the Delivery Date.




          SECTION 4.4 Representations and Warranties of the Purchaser. The Purchaser makes the
following representations and warranties for the benefit of each Seller, on which Seller relies in
Conveying Railcars, Leases and Related Assets to the Purchaser hereunder. Such representations are
made as of the Initial Closing Date and each other applicable Delivery Date.




          (a) Organization and Good Standing. The Purchaser has been duly organized and is
validly existing and in good standing as a limited partnership under the laws of the State of
Texas, with the power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is currently conducted, and had at all relevant
times, and has, full power, authority and legal right to acquire and own the Railcars and Leases
Conveyed hereunder.




          (b) Due Qualification. The Purchaser is duly qualified (except where the failure to
be so qualified would not have a Material Adverse Effect) to do business as a foreign limited
partnership in good standing, and has obtained all necessary licenses (except to the extent that
such failure to obtain such licenses is inconsequential) and approvals in all jurisdictions in
which the ownership or lease of its property or the conduct of its business requires such
qualification, licenses and/or approvals.




          (c) Power and Authority. The Purchaser has the power, authority and legal right to
execute and deliver this Agreement and to carry out the terms hereof and to acquire the Railcars
and Leases Conveyed hereunder; and the execution, delivery and performance of this Agreement and
all of the documents required pursuant hereto have been duly authorized by the Purchaser by all
necessary action.




          (d) No Consent Required. The Purchaser is not required to obtain the consent of any
other Person, or any consent, license (except to the extent that such failure to obtain such
licenses is inconsequential), approval or authorization or registration or declaration with, any
governmental authority, bureau or agency in connection with the execution, delivery or performance
of this Agreement and the Transaction Documents to which it is a party, except for such as have
been obtained, effected or made.




          (e) Binding Obligation. This Agreement constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization,

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conservatorship, receivership, liquidation or other similar laws affecting the enforcement of
creditors’ rights generally and general principles of equity.




          (f) No Violation. The execution, delivery and performance by the Purchaser of this
Agreement, the consummation of the transactions contemplated by this Agreement and the Transaction
Documents to which it is a party and the fulfillment of the terms of this Agreement and the
Transaction Documents to which it is a party do not and will not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without notice or lapse of
time) a default under, the organizational documents of the Purchaser, or conflict with or breach
any of the terms or provisions of, or constitute (with or without notice or lapse of time) a
default under, any indenture, agreement, mortgage, deed of trust or other instrument to which the
Purchaser is a party or by which the Purchaser is bound or to which any of its properties are
subject, or result in the creation or imposition of any lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than
liens created hereunder or under the Indenture), or violate any law or any order, rule or
regulation, applicable to the Purchaser or its properties, of any federal or state regulatory body,
any court, administrative agency, or other governmental instrumentality having jurisdiction over
the Purchaser or any of its properties.




          (g) No Proceedings. There are no proceedings or investigations pending, or, to the
Purchaser’s knowledge, threatened against the Purchaser before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality having jurisdiction over
the Purchaser or its properties: (i) asserting the invalidity of this Agreement or any of the
Transaction Documents, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the Transaction Documents, (iii) seeking any determination
or ruling that could have an adverse effect on the performance by the Purchaser of its obligations
under, or the validity or enforceability of, this Agreement or any of the Transaction Documents,
(iv) that may have an adverse effect on the federal or state income tax attributes of, or seek to
impose any excise, franchise, transfer or similar tax upon, the transfer and acquisition of the
Railcars and Leases Conveyed hereunder or (v) that could have an adverse effect on the Railcars and
Leases Conveyed to the Purchaser hereunder.




          (h) Consideration. The Purchaser has given fair consideration and reasonably
equivalent value in exchange for the Conveyance of the Railcars, Leases and Related Assets being
Conveyed hereunder.



In the event of any breach of a representation and warranty made by the Purchaser hereunder, each
Seller covenants and agrees that such Seller will not take any action to pursue any remedy that it
may have hereunder, in law, in equity or otherwise, until a year and a day have passed since all
Outstanding Obligations under all other Operative Agreements have been paid in full. Each Seller
and the Purchaser agree that damages will not be an adequate remedy for a breach of this covenant
and that this covenant may be specifically enforced by the Purchaser or any third party beneficiary
described in Section 6.10.






15









 








          SECTION 4.5 Indemnification.




          (a) TILC Seller, or TRLT-II Manager on behalf of TRLT-II Seller, shall defend, indemnify and
hold harmless the Purchaser, the Manager, the Indenture Trustee, each Series Enhancer, each
Noteholder, each of their respective Affiliates and each of respective directors, officers,
employees, successors and permitted assigns, agents and servants of the foregoing (each an
“Indemnified Person”) from and against any and all costs, expenses, losses, obligations,
penalties, liabilities, damages, actions, or suits or claims of whatsoever kind or nature (whether
or not on the basis of negligence, strict or absolute liability or liability in tort), that may be
imposed upon, incurred by, suffered by or asserted against any Indemnified Person arising out of or
resulting from any breach of Seller’s representations and warranties and covenants contained
herein, except (A) those resulting solely from any gross negligence, bad faith or willful
misconduct of the particular Indemnified Person claiming indemnification hereunder, (B) those in
respect of taxes that are otherwise addressed by the provisions of (and subject to the limitations
of) subsection (c) of this Section 4.5 below, or (C) to the extent that providing such
indemnity would constitute recourse for losses due to the uncollectibility of sale proceeds (or any
particular amount of sale proceeds) in respect of a Railcar due to a diminution in market value of
such Railcar, or of Lease payments due to the insolvency, bankruptcy or financial inability to pay
of the related Lessee (the “Excluded Amounts”).




          (b) TILC Seller, or TRLT-II Manager on behalf of TRLT-II Seller, will defend and indemnify and
hold harmless each Indemnified Person against any and all costs, expenses, losses, obligations,
penalties, liabilities, damages, actions, or suits or claims of whatsoever kind or nature (whether
or not on the basis of negligence, strict or absolute liability or liability in tort), that may be
imposed upon, incurred by, suffered by or asserted against such Indemnified Person, other than
Excluded Amounts, arising out of or resulting from any action taken by Seller, other than in
accordance with this Agreement or the Indenture or other applicable Operative Agreement, in respect
of any portion of the Railcars, Leases and Related Assets that are Conveyed hereunder.




          (c) TILC Seller, or TRLT-II Manager on behalf of TRLT-II Seller, agrees to pay, and shall
defend, indemnify and hold harmless each Indemnified Party from and against, any taxes (other than
taxes based upon the income of an Indemnified Party and taxes that would constitute Excluded
Amounts) that may at any time be asserted against any Indemnified Party with respect to the
transactions contemplated in this Agreement, including, without limitation, any sales, gross
receipts, general corporation, tangible or intangible personal property, privilege, or license
taxes and costs and expenses in defending against the same, arising by reason of the
acts to be performed by Seller under this Agreement and imposed against such Person. Without
limiting the foregoing, in the event that the Purchaser, the Manager or the Indenture Trustee
receives actual notice of any transfer taxes arising out of the Conveyance of any Railcar or Lease
from Seller to the Purchaser under this Agreement, on written demand by such party, or upon Seller
otherwise being given notice thereof, TILC Seller, or TRLT-II Manager on behalf of TRLT-II Seller,
shall pay, and otherwise indemnify and hold harmless the applicable Indemnified Person, the Manager
and the Indenture Trustee harmless, on an After-Tax Basis, from and against any and all such
transfer taxes (it being understood that none of the Purchaser, the Manager, the Indenture Trustee
or any other Indemnified Person shall have any contractual obligation to pay such transfer taxes).

16









 









          (d) TILC Seller, or TILC, as “Manager” under the TRLT-II Management Agreement on behalf of
TRLT-II Seller, shall defend, indemnify, and hold harmless each Indemnified Party from and against
any and all costs, expenses, losses, obligations, penalties, liabilities, damages, actions, or
suits or claims of whatsoever kind or nature (whether or not on the basis of negligence, strict or
absolute liability or liability in tort), to the extent that any of the foregoing may be imposed
upon, incurred by, suffered by or asserted against such Indemnified Person due to the negligence,
willful misfeasance, or bad faith of Seller in the performance of its duties under this Agreement
or by reason of reckless disregard of Seller’s obligations and duties under this Agreement.




          (e) TILC Seller, or TRLT-II Manager on behalf of TRLT-II Seller, shall indemnify, defend and
hold harmless each Indemnified Party from and against any costs, expenses, losses, obligations,
penalties, liabilities, damages, actions, or suits or claims of whatsoever kind or nature (whether
or not on the basis of negligence, strict or absolute liability or liability in tort), that may be
imposed upon, incurred by, suffered by or asserted against such Indemnified Person, other than
Excluded Amounts, as a result of the failure of any Railcar or Lease Conveyed hereunder to comply
with all requirements of applicable law as of the Initial Closing Date or other applicable Delivery
Date.




          Indemnification under this Section 4.5 shall include reasonable fees and expenses of
counsel and expenses of litigation. The indemnity obligations hereunder shall be in addition to
any obligation that any Seller may otherwise have under applicable law or any other Operative
Agreement.




          SECTION 4.6 Special Indemnification by TILC regarding Exercise of Setoff by Customers.
TILC hereby agrees, for the benefit of the Indenture Trustee, each Series Enhancer, the Noteholders
and each other Secured Party, that it will, within 45 days after the date on which it has knowledge
that any Lessee shall have reduced any payments made by such Lessee under any Lease in the
Portfolio as a result of or in connection with any setoff exercised by such Lessee (regardless of
whether such Lessee actually has any contractual, statutory or other right to exercise such setoff)
with respect to amounts owed or presumed owed to such Lessee pursuant to railcar leases that are
not in the Portfolio, and provided that the applicable Lessee shall not have made payments
aggregating the full amount payable by such Lessee under the applicable Lease
prior to the end of such 30-day period, deposit into the Collections Account an amount, in
immediately available funds, equal to the amount of such reduction.




     Indemnification under this Section 4.6 shall include reasonable fees and expenses of
counsel and expenses of litigation. The indemnity obligations hereunder shall be in addition to
any obligation that TILC may otherwise have under applicable law or any other Operative Agreement.



17









 





ARTICLE V




COVENANTS OF SELLER




          SECTION 5.1 Protection of Title of the Purchaser.




          (a) On or prior to the date hereof, Seller shall have filed or caused to be filed financing
statements, STB or Registrar General of Canada filings (each in form proper for filing in the
applicable jurisdiction) naming the Purchaser as purchaser or secured party, naming the Indenture
Trustee as assignee and describing the Railcars, Leases and Related Assets Conveyed by it to the
Purchaser as collateral, with the office of the Secretary of State of the State of Texas (in the
case of TRLT-II Seller) or Delaware (in the case of TILC Seller) and in such other locations as the
Purchaser or the Indenture Trustee shall have required. Without limiting the foregoing, Seller
hereby authorizes the Purchaser and/or any assignee thereof to prepare and file any such UCC-1
financing statements. From time to time thereafter, Seller shall authorize and file such financing
statements and cause to be authorized and filed such continuation statements, all in such manner
and in such places as may be required by law (or deemed desirable by the Purchaser or any assignee
thereof) to fully perfect, preserve, maintain and protect the interest of the Purchaser under this
Agreement, and the security interest of the Indenture Trustee under the Indenture, in the Railcars,
Leases and Related Assets that are Conveyed hereunder and in the proceeds thereof. Seller shall
deliver (or cause to be delivered) to the Purchaser and the Indenture Trustee file-stamped copies
of, or filing receipts for, any document filed as provided above, as following such filing in
accordance herewith. In the event that Seller fails to perform its obligations under this
subsection, the Purchaser or the Indenture Trustee may perform such obligations, at the expense of
Seller, and Seller hereby authorizes the Purchaser or the Indenture Trustee and grants to the
Purchaser and the Indenture Trustee an irrevocable power of attorney to take any and all steps in
order to perform such obligations in Seller’s or in its own name, as applicable, and on behalf of
Seller, as are necessary or desirable, in the determination of the Purchaser or Indenture Trustee
or any assignee thereof.




          (b) On or prior to Initial Closing Date and any other applicable Delivery Date hereunder,
Seller shall take all steps necessary under all applicable law in order to transfer and assign to
the Purchaser the Railcars and Leases being Conveyed on such date to the Purchaser so that, upon
the Conveyance of such Railcar or Lease from Seller to the Purchaser pursuant to the terms hereof
on the applicable Delivery Date, the Purchaser will have acquired good and marketable title to and
a valid and perfected ownership interest in such Railcars and Leases, free and clear of any
Encumbrance (other than Permitted Encumbrances). On or prior to the
applicable Delivery Date hereunder, Seller shall take all steps required under applicable law
in order for the Purchaser to grant to the Indenture Trustee a first priority perfected security
interest in the Railcars and Leases being Conveyed to the Purchaser on such Delivery Date and, from
time to time thereafter, Seller shall take all such actions as may be required by applicable law
(or deemed desirable by the Purchaser) to fully preserve, maintain and protect the Purchaser’s
ownership interest in, and the Indenture Trustee’s first priority perfected security interest in
the Railcars and Leases which have been Conveyed to the Purchaser hereunder.




          (c) Seller shall not change its name, identity, jurisdiction of organization or corporate
structure in any manner that would or could make any financing statement or

18









 








continuation statement
filed by Purchaser in accordance with this Agreement seriously misleading within the meaning of §
9-506 of the UCC (or any similar provision of the UCC), unless Seller shall have given the
Purchaser, the Manager and the Indenture Trustee at least 30 days’ prior written notice thereof,
and shall promptly file and hereby authorize the Purchaser or the Indenture Trustee to file
appropriate new financing statements or amendments to all previously filed financing statements and
continuation statements.




          (d) Seller shall give the Purchaser, the Manager and the Indenture Trustee at least 30 days’
prior written notice of any relocation of its jurisdiction of organization if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing statement. Seller
shall at all times maintain its jurisdiction of organization, each office from which it manages or
purchases Railcars and Leases and its principal executive office within the United States of
America.




          SECTION 5.2 Other Liens or Interests(a) . Except for the Conveyances hereunder,
Seller will not sell, pledge, assign, transfer or otherwise convey to any other Person, or grant,
create, incur, assume or suffer to exist any Encumbrance on the Railcars and Leases Conveyed
hereunder or any interest therein (other than Permitted Encumbrances), and TILC Seller, or TRLT-II
Manager on behalf of TRLT-II Seller, shall defend the right, title, and interest of the Purchaser
and the Indenture Trustee in and to such Railcars and Leases against all Encumbrances or claims of
Encumbrances of third parties claiming through or under Seller. To the extent that any Railcar or
Lease shall at any time secure any debt of the related Lessee to Seller or any of its affiliates,
Seller agrees that any security interest in its favor arising from such a provision shall be
subordinate to the interest of the Purchaser (and its further assignees) in such Railcars and
Leases.




ARTICLE VI




MISCELLANEOUS




          SECTION 6.1 Amendment. This Agreement may be amended by the Sellers and the Purchaser only
with the prior written consent of the Indenture Trustee (acting at the direction of the Requisite
Majority).




          SECTION 6.2 Notices. All demands, notices and communications to Seller or the Purchaser
hereunder shall be in writing, personally delivered, or sent by telecopier (subsequently confirmed
in writing), reputable overnight courier or mailed by certified mail, return receipt requested, and
shall be deemed to have been given upon receipt (a) in the case of TRLT-II Seller at the following
address: c/o Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Corporate Trust Administration Re: Trinity Rail Leasing V,
Facsimile No.: (302) 636-4140, with a copy to Trinity Industries Leasing Company, 2525 Stemmons
Freeway, Dallas, Texas 75207, Attention: Vice President, Leasing Operations, Facsimile No.: (214)
589-8217or such other address as shall be designated by TRLT-II Seller in a written notice
delivered to the Purchaser, (b) in the case of




19









 







TILC Seller at the following address: Trinity
Industries Leasing Company, 2525 Stemmons Freeway, Dallas, Texas 75207, Attention: Vice President,
Leasing Operations, Facsimile No.: (214) 589-8217, or such other address as shall be designated by
TILC Seller in a written notice delivered to the Purchaser, and (c) in the case of the Purchaser at
the following address: Trinity Rail Leasing V L.P., 2525 Stemmons Freeway, Dallas, Texas 75207,
Attention: Vice President, Leasing Operations, Facsimile No.: (214) 589-8217, with a copy to Kaye
Scholer LLC at the following address: Three First National Plaza, 70 West Madison Street, Suite
4100, Chicago, Illinois 60602, and with a copy to the Indenture Trustee at the notice address
provided for same in the Indenture, or such other address as shall be designated by a party in a
written notice delivered to the other party.




          SECTION 6.3 Merger and Integration. Except as specifically stated otherwise herein, this
Agreement and the Transaction Documents set forth the entire understanding of the parties relating
to the subject matter hereof, and all prior understandings, written or oral, are superseded by this
Agreement and the Transaction Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.




          SECTION 6.4 Severability of Provisions. If any one or more of the covenants, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants,
provisions or terms shall be deemed severable from the remaining covenants, provisions or terms of
this Agreement and shall in no way affect the validity or enforceability of the other provisions of
this Agreement.




          SECTION 6.5 Governing Law. THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF
THE LAWS OF ANY OTHER JURISDICTION.




          SECTION 6.6 Counterparts . For the purpose of facilitating the execution of this Agreement and for other purposes, this
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. Delivery of an executed counterpart of a signature page to this Agreement by
facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.




          SECTION 6.7 Binding Effect; Assignability.




          (a) This Agreement shall be binding upon and inure to the benefit of Seller, the Purchaser and
their respective successors and assigns; provided, however, that Seller may not
assign its rights or obligations hereunder or any interest herein without the prior written consent
of the Purchaser and the Indenture Trustee (acting at the direction of the Requisite Majority).
The Purchaser may assign all of its rights hereunder to the Indenture Trustee, and such assignee
shall have all rights of the Purchaser under this Agreement (as if such assignee were the Purchaser
hereunder).




20









 








          (b) This Agreement shall create and constitute the continuing obligation of the parties hereto
in accordance with its terms, and shall remain in full force and effect until such time when all
Outstanding Obligations are paid in full; provided, however, that rights and
remedies with respect to any breach of any representation and warranty made by Seller pursuant to
Article IV hereof shall be continuing and shall survive any termination of this Agreement.




          SECTION 6.8 Third Party Beneficiaries. Each of the parties hereto hereby acknowledges that
the Purchaser intends to assign all of its rights under this Agreement to the Indenture Trustee for
the benefit of the Secured Parties under the Master Indenture, and Seller hereby consents to such
assignment and agrees that upon such assignment, the Indenture Trustee (for the benefit of the
Secured Parties) shall be a third party beneficiary of this Agreement and may exercise the rights
of the Purchaser hereunder and shall be entitled to all of the rights and benefits of the Purchaser
hereunder to the same extent as if it were party hereto.




          In addition, whether or not otherwise expressly stated herein, all representations,
warranties, covenants and agreements of the Issuer, TRLT-II and TILC (whether as a Seller or as
TRLT-II Manager) in this Agreement or in any document delivered by any of them in connection with
this Agreement (including without limitation, in any Delivery Schedule), shall be for the express
benefit of the Indenture Trustee, each Series Enhancer, each Noteholder and each other Secured
Party as express third party beneficiaries, and shall be enforceable by each of the Indenture
Trustee (acting at the direction of the Requisite Majority) and each Series Enhancer as if such
Person were a party hereto. Each of the Purchaser, TRLT-II and TILC hereby acknowledges and agrees
that such representations, warranties, covenants and agreements are (i) relied upon by each Series
Enhancer in entering into any Enhancement Agreement to which it is a party and (ii) relied upon by
each Noteholder in purchasing any Equipment Notes issued under any Series Supplement.




          SECTION 6.9 Term. This Agreement shall commence as of the date of execution and delivery
hereof and shall continue in full force and effect until the payment in full of all Outstanding
Obligations.




[continues next page]




21









 








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




	 	 	 	 	 	 	 	 	 
	 	 	TRINITY RAIL LEASING TRUST II	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Eric Marchetto	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TRINITY INDUSTRIES LEASING COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Eric Marchetto	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TRINITY RAIL LEASING V L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	TILX GP V, LLC,	 	 
	 	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Eric Marchetto
	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






[Signature Page to Purchase and Contribution Agreement]














 








EXHIBIT A




FORM OF BILL OF SALE




[to be attached]




Exh. A-23















 








EXHIBIT B




FORM OF ASSIGNMENT AND ASSUMPTION




[to be attached]




Exh. A-24














 





EXHIBIT C




DELIVERY SCHEDULE ON THE INITIAL CLOSING DATE




[to be attached]




Sch. B-1