exv10w3






Exhibit 10.3


 



PURCHASE AND CONTRIBUTION AGREEMENT



by and among



TRIP RAIL LEASING LLC,



TRINITY INDUSTRIES LEASING COMPANY



and



TRIP RAIL MASTER FUNDING LLC



Dated as of July 6, 2011



 


 









 






TABLE OF CONTENTS


	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	Section 1.1 General
	 	 	1	 
	Section 1.2 Specific Terms
	 	 	1	 
	 
	ARTICLE II CONVEYANCE OF THE RAILCARS AND LEASES
	 	 	3	 
	 
	Section 2.1 Conveyance of the Railcars and Leases
	 	 	3	 
	 
	ARTICLE III CONDITIONS OF CONVEYANCE
	 	 	5	 
	 
	Section 3.1 Conditions Precedent to Conveyance
	 	 	5	 
	Section 3.2 Conditions Precedent to All Conveyances
	 	 	6	 
	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	7	 
	 
	Section 4.1 Representations and Warranties of the Seller—General
	 	 	7	 
	Section 4.2 Representations and Warranties of TILC—General
	 	 	8	 
	Section 4.3 Representations and Warranties—Assets
	 	 	10	 
	Section 4.4 Representations and Warranties of the Purchaser
	 	 	12	 
	Section 4.5 Indemnification
	 	 	13	 
	Section 4.6 Special Indemnification by TILC regarding Exercise of Setoff by Customers
	 	 	15	 
	 
	ARTICLE V COVENANTS OF SELLER
	 	 	15	 
	 
	Section 5.1 Protection of Title of the Purchaser
	 	 	15	 
	Section 5.2 Other Liens or Interests
	 	 	17	 
	 
	ARTICLE VI MISCELLANEOUS
	 	 	17	 
	 
	Section 6.1 Amendment
	 	 	17	 
	Section 6.2 Notices
	 	 	17	 
	Section 6.3 Merger and Integration
	 	 	18	 
	Section 6.4 Severability of Provisions
	 	 	18	 
	Section 6.5 Governing Law
	 	 	18	 
	Section 6.6 Counterparts
	 	 	18	 
	Section 6.7 Binding Effect; Assignability
	 	 	18	 
	Section 6.8 Third Party Beneficiaries
	 	 	19	 
	Section 6.9 Term
	 	 	19	 
	Section 6.10 Capital Contribution of Demand Note
	 	 	19	 






EXHIBIT A FORM OF BILL OF SALE

EXHIBIT B FORM OF ASSIGNMENT AND ASSUMPTION

EXHIBIT C FORM OF DELIVERY SCHEDULE









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PURCHASE AND CONTRIBUTION AGREEMENT




     THIS PURCHASE AND CONTRIBUTION AGREEMENT is made as of July 6, 2011 (this “Agreement”) by and
among TRIP RAIL LEASING LLC, a Delaware limited liability company (the “Seller”), TRINITY
INDUSTRIES LEASING COMPANY, a Delaware corporation (“TILC” ) and TRIP RAIL MASTER FUNDING LLC, a
Delaware limited liability company (the “Purchaser”).



W I T N E S S E T H:




     WHEREAS, the Purchaser has agreed to purchase from the Seller from time to time, and the
Seller has agreed to Sell (as hereinafter defined) to the Purchaser from time to time, certain of
its Railcars, related Leases 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, pursuant
to the Existing Management Agreement (as hereinafter defined), with respect to the Railcars,
related Leases and Related Assets that the Seller may Sell from time to time hereunder (TILC in
such capacity, the “Existing Manager”).



     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 parties hereto, 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 Master
Indenture (as defined herein). 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, including in the Recitals, but not defined herein shall
have the respective meanings assigned to such terms in the Master Indenture (as defined herein).



     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:



     “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 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 Seller substantially in the form
of Exhibit A attached hereto.



     “Convey” means to Sell Railcars, related Leases and Related Assets hereunder.



     “Conveyance” means a Sale of Railcars, related Leases and Related Assets by the Seller
to the Purchaser.



     “Delivery Schedule” means a schedule, substantially in the form of the schedule
attached as Exhibit C hereto, in each case duly executed and delivered by the 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.



     “Demand Note” means a demand promissory note from the Member to the Purchaser in an
amount equal to the excess, if any, of (a) the Purchase Price for the Railcars, related Leases and
Related Assets to be Conveyed by the Seller to the Purchaser on a Delivery Date over (b) the amount
of cash that the Issuer has available to pay such Purchase Price on such Delivery Date.



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



     “Existing Management Agreement” means the Operation, Maintenance, Servicing and
Remarketing Agreement, dated as of June 27, 2007, between the Seller and the Existing Manager.



     “Existing Manager” has the meaning specified in the Recitals.



     “Indemnified Person” has the meaning set forth in Section 4.5(a).



     “Master Indenture” means the Master Indenture between the Purchaser, as Issuer, and
Wilmington Trust Company, as Indenture Trustee, dated as of the date hereof.



     “Miscellaneous Items” means receivables, prepaid expenses, current assets, deferred
origination costs, receivables, deferred tax assets, non-current assets, accounts payable and
accrued liabilities, deferred tax liabilities, unearned contract revenue, accrued interest, accrued
professional fees, and accrued property and casualty insurance.



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



     “Purchaser” has the meaning specified in the Preamble.



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     “Related Assets” means, with respect to any Railcar or Lease that is Conveyed
hereunder on any Delivery Date, all of the 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), it being understood
that the Marks are owned by the Marks Company and are not being conveyed hereby, (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 (vi) without duplication, any Miscellaneous Items
relating to such Railcar; 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 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 Seller to receive proceeds of any casualty insurance,
condemnation award, indemnity, warranty or guaranty with respect to such Lease, (iii) all claims
for damages arising out of or for breach of or default under such Lease, (iv) the rights, powers,
privileges, options and other benefits of the Seller to perform under such Lease, to compel
performance and otherwise exercise all remedies thereunder and to terminate any such Lease, and (v)
without duplication, any Miscellaneous Items relating to 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.



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, the 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 the Seller in and to (A) certain



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Railcars and related Leases as identified from time to time on a Delivery Schedule delivered
by the Seller in accordance with this Agreement and (B) all Related Assets with respect thereto.




          (b) The Purchaser 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
the Seller in and to such Railcars, related Leases and Related Assets. The 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 the Seller.



          (c) The Sales of Railcars, related Leases and Related Assets by the Seller to the Purchaser
and the Sales of Railcars, related Leases and Related Assets by the Seller to the Purchaser
pursuant to this Agreement are, and are intended to be, absolute and unconditional assignments and
conveyances of ownership (free and clear of any Encumbrances) of all of the Seller’s right, title
and interest in, to and under such Railcars, related 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 the Seller and the Purchaser (i) that all Conveyances of Railcars,
related Leases and Related Assets be true sales and/or contributions, as applicable, constituting
absolute assignments and “true sales” for bankruptcy law purposes by the 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, related Leases and Related Assets
that are Conveyed to the Purchaser pursuant to this Agreement shall not be part of the Seller’s
estate in the event of the filing of a bankruptcy petition by or against the Seller under any
bankruptcy or similar law. Neither the 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
Seller or (y) any Conveyance of Railcars, related Leases and/or Related Assets by the Seller to the
Purchaser be deemed a grant of a security interest in the assets so Conveyed by the Seller to the
Purchaser to secure a debt or other obligation of the Seller (except in the limited circumstance
contemplated in subsection (e) 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 Seller’s right,
title and interest in, to and under the Railcars, related Leases and Related Assets so Conveyed, or
purportedly so Conveyed hereunder), then (i) the Seller shall be deemed hereunder to have granted
to the Purchaser, and the Seller does hereby grant to the Purchaser, a security interest in all of
the Seller’s right, title and interest in, to and under such Railcars, related 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 Seller shall on each Delivery Date deliver to the Purchaser a Delivery Schedule
identifying the Railcars and Leases to be Conveyed by the Seller to the Purchaser on such date.



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



4









 




be paid by means of (x) the Purchaser’s immediate cash payment of the Purchase Price to the
Seller by wire transfer on the Closing Date (or other Delivery Date) in respect of which the Seller
has delivered a Delivery Schedule, to the extent that the Seller has cash available to make such
payment, with such wire transfer in each case to be made to an account designated by the Seller to
the Purchaser on or before the applicable Delivery Date, and (y) the Purchaser delivering a Demand
Note to the Seller to the extent that the Purchaser does not have sufficient cash available to make
such payment in full of such Purchase Price.




          (h) On and after each Delivery Date and related Purchase Price payment as aforesaid, the
Purchaser shall own the Railcars, related Leases and Related Assets Conveyed to the Purchaser on
such date, and the 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, related 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, related Leases
and Related Assets, from time to time, all in accordance with the terms of the Management
Agreement.



          (j) On each Delivery Date, the Seller shall deliver or cause to be delivered to the Purchaser
(or to an assignee thereof, as directed by the Purchaser) each item required on such date to be
delivered by the Seller and any Chattel Paper 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 shall
have received copies of, all of the following on or before the applicable Delivery Date, in form
and substance satisfactory to the Purchaser:




          (i) a Delivery Schedule executed by the 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) a Demand Note, if applicable;




          (v) an Appraisal of the Railcars to be conveyed, with such Appraisal dated no earlier
than 60 days prior to the applicable Delivery Date (or, in the case of the first Delivery
Date relating to this Agreement, dated no earlier than May 2, 2011);



5









 






          (vi) copies of proper UCC financing statements, accurately describing the Conveyed
Railcars and Leases and naming the Seller as the “Debtor” and the Purchaser as “Secured
Party”, or applicable filings with the STB or with the Registrar General of Canada, or 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, related Leases and Related Assets (provided that no such
filings shall be required to be made in Mexico or under any Provincial Personal Property
Security Act or other non-federal legislation in Canada);




          (vii) 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 in the applicable UCC, STB or Registrar General of Canada filing office
against the Conveyed Railcars, related Leases and Related Assets;




          (viii) in the case of a Delivery Date which is the Closing Date for a Series of
Equipment Notes, a confirmation or written advice to similar effect from counsel to the
Purchaser and addressed to the Indenture Trustee, reasonably acceptable to the Indenture
Trustee, that the conveyance constitutes a true sale and that the Purchaser would not be
consolidated in connection with a bankruptcy of the Seller; and




          (ix) in the case of a Delivery Date which is the Closing Date for a Series of Equipment
Notes, such deliveries, and the satisfaction of such other conditions, as are set forth in
the applicable Note Purchase Agreement or otherwise required for the issuance of such
Series.



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



6









 





          (c) The 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) may reasonably request.



          (d) The 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, related Leases and Related Assets from the 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, related 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 the Seller—General. The Seller makes
the following representations and warranties for the benefit of the Purchaser, the Indenture
Trustee, each Noteholder and each other Secured Party, on which the Purchaser relies in acquiring
the Railcars, related Leases and Related Assets Conveyed by the Seller hereunder. Such
representations are made as of each Delivery Date and at such other times specified below.



          (a) The Seller is a limited liability company 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 TRIP Leasing 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 TRIP Leasing Agreements.



          (b) The TRIP Leasing Agreements have been duly authorized by all necessary entity action by
the Seller, and duly executed and delivered by the Seller, and (assuming the due authorization,
execution and delivery by each other party thereto) constitute the legal, valid and binding
obligations of the Seller, enforceable against the Seller 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 the Seller of each TRIP Leasing Agreement and
compliance by the Seller 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 the Seller or any of its properties, or (ii) the provisions of, or constitute a default
by the Seller under, its certificate of formation or limited liability company agreement or (iii)
any indenture, mortgage, contract or other agreement or instrument to which the Seller is a party
or by which the Seller or any of its properties may be bound or affected.



7









 





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



          (e) The Seller is not (x) in violation of any term of any charter instrument or operating
agreement 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 may be bound except, in the case of clause (y), where such
violation would not reasonably be expected to materially adversely affect the Seller’s ability to
perform its obligations under the TRIP Leasing Agreements or materially adversely affect its
financial condition or business. The Seller 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 the Seller to perform its obligations under the TRIP Leasing 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 the Seller or any
governmental authority on the part of the Seller is required (x) in connection with the execution
and delivery by the Seller of the TRIP Leasing Agreements (other than as contemplated thereby), or
(y) to be obtained in order for the Seller to perform its obligations thereunder in accordance with
the terms thereof, other than in 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 the Seller has no reason to
believe will not be timely obtained.



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



          (h) The Seller 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, the Seller will have an adequate amount of capital to conduct its business in the
foreseeable future; and the Seller does not intend to incur, nor believe that it has incurred,
debts beyond its ability to pay as they mature.



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



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



8









 





          (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 this Agreement, 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 this
Agreement.



          (b) This Agreement has been duly authorized by all necessary corporate action by TILC, and
duly executed and delivered by TILC, and (assuming the due authorization, execution and delivery by
each other party thereto) constitutes the legal, valid and binding obligation of TILC, enforceable
against TILC in accordance with its 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 this Agreement and compliance by TILC
with all of the provisions hereof 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 (other than pursuant to this
Agreement) upon any property of TILC pursuant to, (i) any law or regulation, or any order,
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 this Agreement 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 this Agreement 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 this Agreement 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 this Agreement, and has obtained all required



9









 




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 this Agreement (other than as contemplated thereby), or is required to be
obtained in order for TILC to perform its obligations hereunder in accordance with the terms
hereof, other than (i) as may be required under applicable laws, ordinances, governmental rules and
regulations to be obtained, given, accomplished or renewed at any time after the applicable
Delivery Date in connection with the performance of its obligations under this Agreement 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) 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 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.



     Section 4.3 Representations and Warranties—Assets. The following representations and
warranties are made with respect to each Delivery Date on which the Seller is to Convey assets to
the Purchaser, by TILC, in its capacity as Existing Manager, with respect to each representation
and warranty expressed as a representation and warranty of the Seller or the Existing Manager, and
are made for the benefit of the Purchaser, the Indenture Trustee, each Noteholder and each other
Secured Party as of the date of any Delivery Schedule delivered by the 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 the Existing Manager, 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 and 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



10









 




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 and 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.




          (c) All sales, use or transfer taxes, if any, due and payable upon the Conveyance of the
Railcars, related 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 Existing
Manager (on behalf of the 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) The Seller is not in default of its obligations as “lessor” (or other comparable capacity)
under any Lease, and, to the best of the Existing Manager’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 minimis 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.



          (f) 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.



          (g) 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 (g) 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).



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



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          (i) All information provided in the applicable Delivery Schedule, including each schedule
thereto, is true and correct on and as of the related 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 Railcar. All
other information concerning the Railcars, related Leases and Related Assets covered by the
applicable Delivery Schedule that was provided to the Issuer or the Indenture Trustee prior to the
related Delivery Date was true and correct in all material respects as of the date it was so
provided.



          (j) 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 the Seller, on which the Seller relies
in Conveying Railcars, related Leases and Related Assets to the Purchaser hereunder. Such
representations are made as of each 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 liability company under the laws of the State of
Delaware, 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 on its ability to carry on its business as
now conducted or as contemplated to be conducted) to do business as a foreign limited liability
company 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 other Operative Agreements to which it is a party, except for such as
have been obtained, effected or made.



12









 





          (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,
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 other
Operative Agreements to which it is a party and the fulfillment of the terms of this Agreement and
the other Operative Agreements 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 Master 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
other Operative Agreements, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the other Operative Agreements, (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 other
Operative Agreements, (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, related Leases and Related Assets
being Conveyed hereunder.


In the event of any breach of a representation and warranty made by the Purchaser hereunder, the
Seller covenants and agrees that the 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. The 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 6.8.







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     Section 4.5 Indemnification.



          (a) The Existing Manager shall defend, indemnify and hold harmless the Purchaser, the Manager,
the Indenture Trustee, each Noteholder, each of their respective Affiliates and each of the
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 the Seller’s or the Existing Manager’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 or other third party
payments due to the insolvency, bankruptcy or financial inability to pay of the related Lessee or
other third party (the matters contemplated by clauses (A), (B) and (C) may be referred to
collectively as the “Excluded Amounts”).



          (b) The Existing Manager 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 the Seller or the Existing Manager, other than in accordance with this
Agreement or the Master Indenture or other applicable Operative Agreement, in respect of any
portion of the Railcars, related Leases and Related Assets that are Conveyed hereunder.



          (c) The Existing Manager agrees to pay, and shall defend, indemnify and hold harmless each
Indemnified Person from and against, any taxes (other than taxes based upon the income of an
Indemnified Person and taxes that would constitute Excluded Amounts) that may at any time be
asserted against any Indemnified Person 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 the Seller or the Existing
Manager 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 the Seller to the
Purchaser under this Agreement, on written demand by such party, or upon the Existing Manager
otherwise being given notice thereof, the Existing Manager 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).



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          (d) The Existing Manager shall defend, indemnify, and hold harmless each 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), to the extent that any of the
foregoing may be imposed upon, incurred by, suffered by or asserted against such Indemnified Person
(other than Excluded Amounts) due to the negligence, willful misfeasance, or bad faith of the
Seller in the performance of its duties under this Agreement or by reason of reckless disregard of
the Seller’s or the Existing Manager’s obligations and duties under this Agreement.



          (e) The Existing Manager shall indemnify, defend and hold harmless each Indemnified Person
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 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 the Seller or the Existing Manager 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 (in its capacity as Manager under the Management Agreement) hereby agrees, for the benefit of
the Indenture Trustee, 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 managed by TILC 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 45-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.



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ARTICLE V




COVENANTS OF SELLER



     Section 5.1 Protection of Title of the Purchaser.



          (a) On or prior to the date hereof, the Existing Manager on behalf of the Seller shall have
filed or caused to be filed UCC 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, related
Leases and Related Assets Conveyed by it to the Purchaser as collateral, with the office of the
Secretary of State of the State of Delaware and the STB and Registrar General of Canada filing
offices. Without limiting the foregoing, the 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, the Seller (or the Existing Manager on behalf of the 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 Master
Indenture, in the Railcars, related Leases and Related Assets that are Conveyed hereunder and in
the proceeds thereof. The Existing Manager on behalf of the 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, following such filing in accordance herewith. In the
event that the Existing Manager on behalf of the Seller fails to perform its obligations under this
subsection, the Purchaser or the Indenture Trustee may perform such obligations, at the expense of
the Existing Manager, and the Existing Manager 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 the Seller’s or in its own name, as
applicable, and on behalf of the Seller, as are necessary or desirable, in the determination of the
Purchaser or Indenture Trustee or any assignee thereof, with respect to performing such
obligations.



          (b) On or prior to the applicable Delivery Date hereunder, the Existing Manager on behalf of
the 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 the 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, the Existing Manager on behalf of the Seller shall cooperate with the Purchaser in order
to 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, the Seller shall
cooperate with the Purchaser in order to 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



16









 




Purchaser hereunder. Notwithstanding anything to the contrary in this Agreement, neither the
Seller nor the Existing Manager on behalf of the Seller shall be required pursuant to this
Agreement to make any filings, registrations or recordations in Mexico or under any Provincial
Personal Property Security Act or other non-federal legislation in Canada.




          (c) The 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 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 the 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 authorizes the Purchaser or the Indenture Trustee to file
appropriate new financing statements or amendments to all previously filed financing statements and
continuation statements.



          (d) The Existing Manager on behalf of the 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. The 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. Except for the Conveyances hereunder, the
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 the Existing Manager
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 the Seller. To the extent that any Railcar or Lease shall at any time
secure any debt of the related Lessee to the Seller or any of its affiliates, the 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 Seller, TILC 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 the Seller, TILC 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
the Seller at the following address: c/o Wilmington Trust Company, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration Re: TRIP Rail



17









 




Master Funding LLC, Facsimile No.: (302) 636-4140, with a copy to Trinity Industries Leasing
Company, 2525 Stemmons Freeway, Dallas, Texas 75207, Attention: Lance Davis, Director of Finance,
Facsimile No.: (214) 589-8271 or such other address as shall be designated by the Seller in a
written notice delivered to the Purchaser, (b) in the case of TILC at the following address:
Trinity Industries Leasing Company, 2525 Stemmons Freeway, Dallas, Texas 75207, Attention: Lance
Davis, Director of Finance, Facsimile No.: (214) 589-8271, or such other address as shall be
designated by TILC in a written notice delivered to the Purchaser, and (c) in the case of the
Purchaser at the following address: TRIP Rail Master Funding LLC., c/o Trinity Industries Leasing
Company, as Manager, 2525 Stemmons Freeway, Dallas, Texas 75207, Attention: Lance Davis, Director
of Finance, Facsimile No.: (214) 589-8271, Confirmation No.: (214) 589-8735, with a copy to
Trinity Industries Leasing Company, 2525 Stemmons Freeway, Dallas, Texas 75207, Attention: Legal
Department, Facsimile No.: (214) 589-8824, Confirmation No.: (214) 631-4420, and with a copy to
the Indenture Trustee at the notice address provided for same in the Master 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 other Operative Agreements 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 other Operative Agreements. 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 or other electronic transmission 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 the Seller, TILC, the
Purchaser and their respective successors and assigns; provided, however, that neither the Seller
nor TILC may assign its rights or obligations hereunder or any interest herein



18









 




without the prior written consent of the Purchaser and the Indenture Trustee (acting at the
direction of the Requisite Majority). The Purchaser may assign as collateral security 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).




          (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 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 as collateral security all of its rights under this Agreement
to the Indenture Trustee for the benefit of the Secured Parties under the Master Indenture, and
each of the Seller and TILC 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 Seller and TILC 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 Noteholder and
each other Secured Party as express third party beneficiaries, and shall be enforceable by the
Indenture Trustee (acting at the direction of the Requisite Majority) as if such Person were a
party hereto. Each of the Seller and TILC hereby acknowledges and agrees that such
representations, warranties, covenants and agreements are relied upon by each Noteholder in
purchasing the Equipment Notes issued under the Master Indenture.



     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.



     Section 6.10 Capital Contribution of Demand Note. By its execution of this Agreement,
the Member hereby contributes a Demand Note to the Purchaser in the principal amount of one hundred
ninety-one million six hundred thirty-five thousand three hundred thirty-eight and 70/100 dollars
($191,635,338.70).



[SIGNATURE PAGE FOLLOWS]




19








 





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



	 	 	 	 	 
	 	TRIP RAIL LEASING LLC

 	 
	 	By:  	TRIP RAIL HOLDINGS LLC, its
 Manager, by TRINITY INDUSTRIES

LEASING COMPANY, its Manager	 
	 
	 	By:  	/s/ Gail Peck
 	 
	 	 	Name:  	Gail Peck 	 
	 	 	Title:  	Treasurer 	 
	 
	 	TRINITY INDUSTRIES LEASING COMPANY

 	 
	 	By:  	/s/ Gail Peck
 	 
	 	 	Name:  	Gail Peck 	 
	 	 	Title:  	Treasurer 	 
	 
	 	TRIP RAIL MASTER FUNDING LLC

 	 
	 	By:  	TRIP RAIL HOLDINGS LLC, its
 Manager, by TRINITY INDUSTRIES

LEASING COMPANY, its Manager	 
	 
	 	By:  	/s/ Gail Peck
 	 
	 	 	Name:  	Gail Peck 	 
	 	 	Title:  	Treasurer 	 



20









 






	 	 	 	 	 



	 	 	 	 	 
	 	For purposes of Section 6.10 of this Agreement:



TRIP RAIL HOLDINGS LLC, as the Manager of the Purchaser



By TRINITY INDUSTRIES LEASING COMPANY, its Manager

 	 
	 	By:  	/s/ C. Lance Davis
 	 
	 	 	Name:  	Cary Lance Davis 	 
	 	 	Title:  	Vice President 	 



21









 






	 	 	 	 	 



EXHIBIT A




FORM OF BILL OF SALE



___________, 20__




     TRIP Rail Leasing LLC, a Delaware limited liability company (the “Seller”), in consideration
of the sum of ten dollars ($10.00) and other good and valuable consideration paid at or before the
execution and delivery of these presents, and receipt of which is hereby acknowledged, does hereby
(i) grant, bargain, sell, transfer, assign and set over unto TRIP Rail Master Funding LLC, a
Delaware limited liability company (the “Buyer”) and its successors and assigns all right, title
and interest of the Seller, in and to the items of railroad rolling stock forth on Schedule I
hereto (together with (a) any and all replacements or substitutions thereof, (b) any and all
tangible components thereof, and (c) any and all related appliances, parts, accessories,
appurtenances, accessions, additions, improvements to and replacements from time to time
incorporated or installed in any item thereof) (the “Railcars”), together with (A) all licenses,
manufacturer’s warranties and other warranties, Supporting Obligations, Payment Intangibles,
Chattel Paper, General Intangibles and all other rights and obligations related to the Railcars,
(B) all Railroad Mileage Credits allocable to such Railcars, and any payments in respect of such
credits accruing on or after the applicable Delivery Date, (C) all tort claims or any other claims
of any kind or nature related to such Railcars and any payments in respect of such claims, (D) all
Marks attaching to such Railcars (including as evidenced by any SUBI Certificate issued by the
Marks Company), it being understood that the Marks are owned by the Marks Company and are not being
conveyed hereby, (E) all other payments owing by any Person (including any railroads or similar
entities) in respect of or attributable to such Railcars or the use, loss, damage, casualty,
condemnation of such Railcars or the Marks associated therewith, in each case whether arising by
contract, operation of law, course of dealing, industry practice or otherwise, and (F) without
duplication, any Miscellaneous Items relating to such Railcars; and (ii) assign all of its right,
title and interest in and to all warranties or representations made or given to the Seller with
respect to the Railcars by the manufacturer thereof (collectively, the “Purchased Railcars”). The
Buyer hereby accepts delivery of the Purchased Railcars, including the Railcars set forth on
Schedule I hereto.



     To have and to hold all and singular the rights to the Purchased Railcars to the Buyer and its
successors and assigns for its and their own use and behalf forever.



     And the Seller hereby warrants to the Buyer and its successors and assigns that at the time of
delivery of the Purchased Railcars, the Seller has good and marketable legal and beneficial title
to and good and lawful right to sell, the Purchased Railcars, and the Purchased Railcars are free
and clear of all Liens (other than Permitted Encumbrances), and the Seller covenants that it will
defend forever such title to the Purchased Railcars against the demands or claims of all Persons
whomsoever (including, without limitation, the holders of such Permitted Encumbrances) based on
claims arising as a result of, or related or attributable to, acts, events or circumstances
occurring prior to the delivery of the Purchased Railcars by the Seller hereunder. Notwithstanding
the provisions above and its and the Buyer’s intent that the Seller grant, bargain, sell, transfer,
assign and set over to the Buyer all right, title and interest of the Seller in the Purchased
Railcars, as a precaution only, in the event of any challenge to this Bill of Sale as



EXHIBIT A



Page 1









 




being in the nature of an absolute sale or assignment rather than a financing, the Seller
hereby also grants the Buyer a security interest in the Purchased Railcars. Such grant of a
security interest does not constitute an admission or acknowledgment that the transactions
contemplated by the Asset Transfer Agreement provide that this Bill of Sale is other than a grant,
bargain, sale, transfer, assignment and set over to the Buyer of all right, title and interest of
the Seller in the Purchased Railcars.




     Terms used herein with initial capital letters and not otherwise defined shall have the
respective meanings given thereto in (i) Annex A to the Master Indenture, dated as of July 6, 2011,
as amended, restated or otherwise modified from time to time, by and between the Buyer and
Wilmington Trust Company, or (ii) the Purchase and Contribution Agreement, dated as of July 6, 2011
(as amended, restated or otherwise modified from time to time, the “Asset Transfer Agreement”), by
and among the Buyer, the Seller and Trinity Industries Leasing Company.



     This Bill of Sale shall be governed by and construed in accordance with the laws of the State
of New York, including, without limitation, Section 5-1401 and Section 5-1402 of the New York
General Obligations Law but otherwise without regard to conflict of laws principles.



     The grant, bargain, sale, transfer, assignment and setting over of the Purchased Railcars
pursuant to this Bill of Sale shall be deemed to occur within the State of Texas.



     This Bill of Sale shall be binding upon and shall inure to the benefit of, and shall be
enforceable by, the parties hereto and their respective successors and assigns as permitted by and
in accordance with the terms hereof. Except as expressly provided herein or in the other Operative
Agreements, no party hereto may assign their interests herein without the consent of the other
party hereto.



     The Seller will duly execute and deliver to the Buyer such further documents and assurances
and take such further action as the Buyer may from time to time reasonably request or as may be
required by applicable law or regulation in order to effectively carry out the intent and purpose
of this Bill of Sale and to establish and protect the rights and remedies created or intended to be
created in favor of the Buyer hereunder, including, without limitation, the execution and delivery
of supplements or amendments hereto, in recordable form.



* * *




EXHIBIT A



Page 2









 





     IN WITNESS WHEREOF, the Seller has caused this instrument to be executed as of the date first
above written.



	 	 	 	 	 
	 	TRIP RAIL LEASING LLC

 	 
	 	By:  	
TRIP RAIL HOLDINGS LLC, its
 Manager, by TRINITY INDUSTRIES
 LEASING COMPANY, its Manager	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 

	STATE OF

	 	 	 	 	)	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	)
	     SS: 
	COUNTY OF

	 	 	 	 	)	 
	 

	 	 	 	 	 	 





     On this ___ day of ____________________, 20__, before me personally appeared [Insert name of
signatory], to me personally known, who being duly sworn, stated that he is [Insert signatory’s
title] of Trinity Industries Leasing Company, the manager of TRIP Rail Leasing LLC’s manager, that
said instrument was signed on behalf of said entity by authority of its management or other
governing body, and he acknowledged that the execution of the foregoing instrument was the free act
and deed of said entity.



	 	 	 	 	 
	 
	 	 	 
	 	Notary Public 	 


My Commission Expires: ____________________




EXHIBIT A



Page 3









 





SCHEDULE I




EXHIBIT A



Page 4









 





EXHIBIT B




FORM OF ASSIGNMENT AND ASSUMPTION



____________________, 20__




     TRIP Rail Leasing LLC, a Delaware limited liability company (the “Assignor”), in consideration
of the sum of ten dollars ($10.00) and other good and valuable consideration, hereby transfers,
assigns and otherwise conveys and grants to TRIP Rail Master Funding LLC, a Delaware limited
liability company (the “LLC”), and the LLC hereby acquires and assumes from the Assignor, all of
the Assignor’s right, title and interest in and to the Leases set forth on Schedule I hereto and
all Related Assets with respect thereto (collectively, the “Leases”), any and all income and
proceeds thereof and any and all obligations of the Assignor thereunder arising on and after the
date hereof. This assignment and assumption is made under the Purchase and Contribution Agreement,
dated as of July 6, 2011 (as amended, restated or otherwise modified from time to time, the
“Agreement”), by and among the Assignor, Trinity Industries Leasing Company and the LLC.



     The Assignor hereby warrants to the LLC and its successors and assigns that at the time of
assignment of the Leases, the Assignor has legal and beneficial title thereto and good and lawful
right to assign such Leases free and clear of all Liens (other than subleases of the Leases as
expressly permitted by the Agreement and other than Permitted Encumbrances), and the Assignor
covenants that it will defend forever such title to the Leases against the demands or claims of all
Persons whomsoever (including, without limitation, the holders of such Permitted Encumbrances)
based on claims arising as a result of, or related or attributable to, acts, events or
circumstances occurring prior to the assignment of the Leases by the Assignor hereunder.
Notwithstanding the provisions above and its and the LLC’s intent that the Assignor transfer,
assign and otherwise convey and grant to the LLC all right, title and interest of the Assignor in
the Leases, as a precaution only, in the event of any challenge to this Assignment as being in the
nature of an absolute assignment rather than a financing, the Assignor hereby also grants the LLC a
security interest in the Leases. Such grant of a security interest does not constitute an
admission or acknowledgment that the transactions contemplated by the Agreement provide that this
Assignment is other than a transfer, assignment and otherwise conveyance and grant to the LLC of
all right, title and interest of the Assignor in the Leases.



     The LLC hereby assumes, and agrees it is unconditionally bound in respect of, as of the
applicable Delivery Date, all duties and obligations of the Assignor under the Leases.



     Terms used herein with initial capital letters and not otherwise defined shall have the
respective meanings given thereto in (i) Annex A to the Master Indenture, dated as of July 6, 2011,
as amended, restated or otherwise modified from time to time, by and between the LLC and Wilmington
Trust Company, or (ii) the Agreement.



     This Assignment and Assumption shall be governed by and construed in accordance with the laws
of the State of New York, including, without limitation, Section 5-1401 and Section 5-1402 of the
New York General Obligations Law but otherwise without regard to conflict of laws principles.



EXHIBIT B



Page 1









 





     This Assignment and Assumption shall be binding upon and shall inure to the benefit of, and
shall be enforceable by, the parties hereto and their respective successors and assigns as
permitted by and in accordance with the terms hereof. Except as expressly provided herein or in
the other Operative Agreements, no party hereto may assign their interests herein without the
consent of the other party hereto.



     The Assignor will duly execute and deliver to the LLC such further documents and assurances
and take such further action as the LLC may from time to time reasonably request or as may be
required by applicable law or regulation in order to effectively carry out the intent and purpose
of this Assignment and Assumption and to establish and protect the rights and remedies created or
intended to be created in favor of the LLC hereunder, including, without limitation, the execution
and delivery of supplements or amendments hereto, in recordable form.



* * *




EXHIBIT B



Page 2









 





     IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	TRIP RAIL LEASING LLC

 	 
	 	By:  	TRIP RAIL HOLDINGS LLC, its
 Manager, by TRINITY INDUSTRIES
 LEASING COMPANY, its Manager	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TRIP RAIL MASTER FUNDING LLC,

 	 
	 	By:  	TRIP RAIL HOLDINGS LLC, its
 Manager, by TRINITY INDUSTRIES
 LEASING COMPANY, its Manager	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT B



Page 3









 





SCHEDULE I




EXHIBIT B



Page 4









 





EXHIBIT C




FORM OF DELIVERY SCHEDULE




     THIS SCHEDULE dated as of ________________, 20___ constitutes a “Delivery Schedule” for such
date, which is a Delivery Date, in respect of a Conveyance to be made on such date by the Seller
signatory hereto below. Capitalized terms used in this Schedule have the meaning given such terms
in the Purchase and Contribution Agreement, dated as of July 6, 2011, as amended, restated or
otherwise modified from time to time, among the undersigned as the Seller, TRIP Rail Master Funding
LLC, as Purchaser, and Trinity Industries Leasing Company. The Railcars and Leases that are the
subject of such Conveyance are listed on Schedule 1 attached hereto. Such Schedule also indicates
by footnote designation, those Leases that are subject to a purchase option or a renewal or
extension option, and also those Leases that are subject to an early termination option of the
Lessee.



EXHIBIT C



Page 1









 





     IN WITNESS WHEREOF, this Delivery Schedule is executed as of the date first written above.



	 	 	 	 	 
	 	TRIP RAIL LEASING LLC

 	 
	 	By:  	TRIP RAIL HOLDINGS LLC, its
 Manager, by TRINITY INDUSTRIES
 LEASING COMPANY, its Manager	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT C



Page 2









 





SCHEDULE 1

TO

DELIVERY SCHEDULE




EXHIBIT C




Page 3