exv10w20w2






Exhibit 10.20.2




EXECUTION VERSION




PURCHASE AND SALE AGREEMENT (TRLT-II)




dated as of May 9, 2008




among




TRINITY RAIL LEASING TRUST II,




as Seller




TRINITY RAIL LEASING VI LLC,




as Buyer




and




TRINITY INDUSTRIES LEASING COMPANY




(solely with respect to Sections 2.7, 3.2, 3.3, 3.4,
3.17(y), 3.17(z), 3.19 and 4.4)




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	1	 
	SECTION 1.1.
	 	Definitions	 	 	1	 
	SECTION 1.2.
	 	UCC Terms	 	 	3	 
	SECTION 1.3.
	 	Interpretation	 	 	4	 
	 
	 	 	 	 	 	 
	ARTICLE II TRANSFER OF ASSETS; PURCHASE AND SALE OF ASSETS; ASSUMPTION OF ASSUMED OBLIGATIONS	 	 	4	 
	SECTION 2.1.
	 	Transferred Assets	 	 	4	 
	SECTION 2.2.
	 	Consideration	 	 	4	 
	SECTION 2.3.
	 	Purchase Price	 	 	5	 
	SECTION 2.4.
	 	Agent to Hold Existing Leases	 	 	5	 
	SECTION 2.5.
	 	Assumed Obligations	 	 	5	 
	SECTION 2.6.
	 	Seller's Intent	 	 	5	 
	SECTION 2.7.
	 	Letter-of-Credit Rights	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER	 	 	6	 
	SECTION 3.1.
	 	Organization and Good Standing	 	 	6	 
	SECTION 3.2.
	 	Power; Authorization; Enforceable Obligations	 	 	6	 
	SECTION 3.3.
	 	No Conflicts	 	 	6	 
	SECTION 3.4.
	 	No Litigation Pending	 	 	7	 
	SECTION 3.5.
	 	No Violation of Authority or Applicable Law	 	 	7	 
	SECTION 3.6.
	 	Bulk Sales Notice	 	 	7	 
	SECTION 3.7.
	 	Title	 	 	7	 
	SECTION 3.8.
	 	Records	 	 	7	 
	SECTION 3.9.
	 	[Reserved]	 	 	7	 
	SECTION 3.10.
	 	No Restrictions on Transfer	 	 	7	 
	SECTION 3.11.
	 	Broker's Fees	 	 	8	 
	SECTION 3.12.
	 	Railcars	 	 	8	 
	SECTION 3.13.
	 	Marks	 	 	8	 
	SECTION 3.14.
	 	Event of Loss	 	 	8	 
	SECTION 3.15.
	 	Solvency	 	 	8	 
	SECTION 3.16.
	 	Permits; etc	 	 	8	 




Purchase & Sale Agreement (TRLT-II)



i









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	SECTION 3.17.
	 	Leases	 	 	8	 
	SECTION 3.18.
	 	Marks Company Interest	 	 	11	 
	SECTION 3.19.
	 	Full Disclosure	 	 	11	 
	SECTION 3.20.
	 	Fair Labor Standards Act	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE IV COVENANTS OF THE SELLER	 	 	11	 
	SECTION 4.1.
	 	Implementing Agreement	 	 	11	 
	SECTION 4.2.
	 	Consents and Approvals	 	 	12	 
	SECTION 4.3.
	 	Notification of Breach	 	 	12	 
	SECTION 4.4.
	 	Taxes	 	 	12	 
	SECTION 4.5.
	 	Property Tax Reimbursement	 	 	13	 
	SECTION 4.6.
	 	Substantive Consolidation	 	 	13	 
	SECTION 4.7.
	 	No Bankruptcy Petition Against the Buyer	 	 	14	 
	SECTION 4.8.
	 	Chattel Paper Counterparts	 	 	14	 
	SECTION 4.9.
	 	Rescission of Transfer	 	 	14	 
	 
	 	 	 	 	 	 
	ARTICLE V DELIVERABLES	 	 	15	 
	SECTION 5.1.
	 	Deliverables	 	 	15	 
	 
	 	 	 	 	 	 
	ARTICLE VI MISCELLANEOUS	 	 	15	 
	SECTION 6.1.
	 	Notices and Other Communications	 	 	15	 
	SECTION 6.2.
	 	Effect of Investigation	 	 	15	 
	SECTION 6.3.
	 	Waivers	 	 	15	 
	SECTION 6.4.
	 	Amendment	 	 	16	 
	SECTION 6.5.
	 	Assignment	 	 	16	 
	SECTION 6.6.
	 	Assignment to Collateral Agent or Agent	 	 	16	 
	SECTION 6.7.
	 	Further Assurances	 	 	16	 
	SECTION 6.8.
	 	Severability	 	 	16	 
	SECTION 6.9.
	 	Remedies Cumulative	 	 	16	 
	SECTION 6.10.
	 	Entire Understanding	 	 	16	 
	SECTION 6.11.
	 	Headings	 	 	17	 
	SECTION 6.12.
	 	Counterparts	 	 	17	 
	SECTION 6.13.
	 	Survival of Representations and Warranties	 	 	17	 






ii









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 	 	 
	SECTION 6.14.
	 	Governing Law; Submission to Jurisdiction	 	 	17	 
	SECTION 6.15.
	 	Waiver of Jury Trial	 	 	17	 
	 
	 	 	 	 	 	 
	EXHIBIT A Form of Bill of Sale	 	 	 	 






iii









 






PURCHASE AND SALE AGREEMENT (TRLT-II)




     This PURCHASE AND SALE AGREEMENT (TRLT-II), dated as of May 9, 2008, is among TRINITY RAIL
LEASING VI LLC, a Delaware limited liability company (the “Buyer”), TRINITY RAIL LEASING
TRUST II, a Delaware statutory trust (the “Seller”) and TRINITY INDUSTRIES LEASING COMPANY,
a Delaware corporation (solely with respect to Sections 2.7, 3.2, 3.3,
3.4, 3.17(y), 3.17(z), 3.19 and 4.4) (“TILC”).



     The Seller desires to transfer and convey to the Buyer at certain times on and subsequent to
the Effective Date (as defined below), and the Buyer desires to acquire from the Seller at such
times, all of the Seller’s right, title and interest in certain Railcars (together with all
assignable warranties, guaranties and Permits related thereto) and certain Leases, and all income,
proceeds and reserves in connection therewith. The Buyer will acquire ownership of such Railcars
and such Leases from the Seller by paying the Purchase Price therefor, to be funded through a
combination of funds received through a single borrowing under the Loan Agreement (as defined
below), proceeds from certain Asset Dispositions (as defined below), if any, available to the Buyer
for such purpose and cash capital contributions made by TILC to the Buyer.



     The Buyer executed that certain Term Loan Agreement, dated as of May 9, 2008 (the “Loan
Agreement Date”), by and between the Buyer, as borrower, DVB Bank AG, as agent, the Committed
Lenders and Conduit Lenders from time to time party thereto, as lenders, and Wilmington Trust
Company, as collateral agent (together with any successor or successors in such capacity, the
“Collateral Agent”) and depositary (together with any successor or successors in such
capacity, the “Depositary”) (as amended, supplemented, amended and restated, extended,
renewed or otherwise modified from time to time, the “Loan Agreement”), whereby the Lenders
have agreed to advance to the Buyer certain amounts in a single borrowing in order for the Buyer to
make purchases of Railcars on the Effective Date. In connection with the financing of the Buyer’s
purchase of certain Railcars and certain Leases under the Loan Agreement, the Buyer has executed
and granted pursuant to a Security Agreement, dated as of the Loan Agreement Date, a first priority
Lien in such Railcars and such Leases and certain other Collateral (as defined in the Security
Agreement). TILC is an Affiliate of the Seller. Each of the Seller and TILC agree that all
representations, warranties, covenants and agreements made by it herein shall be for the benefit of
the Buyer, the Lenders, the Agent, the Collateral Agent and TILC.



     NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements herein
contained, the parties agree as follows:



ARTICLE I




DEFINITIONS




     SECTION 1.1. Definitions. Capitalized terms used in this Agreement but not defined
herein shall have the meaning assigned to such terms in the Loan Agreement. Otherwise, terms
defined herein shall have the following meanings and the definitions of such terms shall be equally
applicable to the singular and plural forms of such terms:



 









 





     “Additional Leases” means the Leases listed on Schedule B of each Bill of Sale
delivered after the Effective Date.



     “Additional Railcars” means the Railcars listed on Schedule A of each Bill of
Sale delivered after the Effective Date, together with any and all options, warranties, service
contracts, program services, test rights, maintenance rights, support rights, improvement rights,
indemnifications, guarantees and Permits in connection therewith.



     “Additional Transferred Assets” has the meaning set forth in clause (b) of
Section 2.1.



     “Adjusted Collateral Value” has the meaning set forth in the Loan Agreement.



     “Agreement” means this Purchase and Sale Agreement (TRLT-II), including all exhibits
and schedules hereto, as it may be supplemented by each Bill of Sale and otherwise as amended,
supplemented, amended and restated or modified from time to time.



     “Asset Disposition” has the meaning set forth in the Loan Agreement.



     “Assumed Obligations” has the meaning set forth in Section 2.5.



     “Bill of Sale” means a bill of sale substantially in the form of Exhibit A
duly executed and delivered by the Seller in connection with the Buyer’s acquisition of Railcars
and Leases from the Seller, and incorporated herein upon delivery thereof.



     “Buyer” has the meaning set forth in the preamble.



     “Effective Date” means date in which the Borrowing occurs pursuant to the Loan
Agreement.



     “Existing Leases” means, as of any date, the Leases listed on Schedule B to
each Bill of Sale that has been delivered pursuant to this Agreement.



     “Initial Leases” means the Leases listed on Schedule B to the Bill of Sale
delivered on the Effective date.



     “Initial Railcars” means the Railcars described in Schedule A to the Bill of
Sale delivered on the Effective Date, together with any and all options, warranties, service
contracts, program services, test rights, maintenance rights, support rights, improvement rights,
indemnifications, guarantees and Permits in connection therewith.



     “Initial Transferred Assets” has the meaning set forth in clause (a) of
Section 2.1.



     “Lease” has the meaning ascribed to it in the Loan Agreement.



     “Lessee” has the meaning ascribed to it in the Loan Agreement.



     “Letter-of-Credit Right” means a Letter-of-Credit Right as defined in the Security
Agreement.



2









 





     “Loan Agreement” has the meaning set forth in the preamble.



     “Loan Agreement Date” has the meaning set forth in the preamble.



     “Material Adverse Effect” means (i) any material adverse effect upon the operations,
business, properties, condition (financial or otherwise) or prospects of the Buyer or Seller (after
taking into account any applicable insurance and any applicable indemnification (to the extent the
provider of such insurance or indemnification has the financial ability to support its obligations
with respect thereto and is not disputing or refusing to acknowledge the same)), (ii) a material
adverse effect on the ability of the Buyer to consummate the transactions contemplated hereby to
occur on each Transfer Date, (iii) a material impairment of the ability of the Seller to perform
any of its obligations under this Agreement or (iv) a material impairment of the rights and
benefits of the Buyer under this Agreement.



     “Purchase Price” has the meaning set forth in Section 2.3.



     “Seller” has the meaning set forth in the preamble.



     “Servicing Agreement” has the meaning ascribed to it in the Loan Agreement.



     “Supporting Obligation” means a Letter-Of-Credit Right, guarantee or other secondary
obligation supporting, or any Lien securing, the payment or performance of one or more receivables,
accounts, chattel paper, general intangibles, documents, instruments or investment property.



     “TILC” has the meaning set forth in the preamble.



     “Transfer Date” means any date on which Railcars or Leases are transferred by the
Seller to the Buyer pursuant to the terms of this Agreement.



     “Transfer Taxes” has the meaning set forth in Section 4.4.



     “Transferred Assets” has the meaning set forth in clause (b) of Section
2.1.



     “Transferred Leases” means, collectively, the Initial Leases and the Additional
Leases.



     “Transferred Railcars” means, collectively, the Initial Railcars and the Additional
Railcars.



     “Transaction Documents” means this Agreement, the Servicing Agreement, the Insurance
Agreement, and the Administrative Services Agreement.



     “UCC” means the Uniform Commercial Code as in effect from time to time in the State of
New York.



     SECTION 1.2. UCC Terms. Unless otherwise defined herein or in the Loan Agreement or
the context otherwise requires, uncapitalized terms used herein which are defined in the UCC have
the respective meanings provided in the UCC.



3









 





     SECTION 1.3. Interpretation. The use of the masculine, feminine or neuter gender or
the singular or plural form of words herein shall not limit any provision of this Agreement. The
use of the terms “including” or “include” shall in all cases herein mean “including, without
limitation” or “include, without limitation,” respectively. Reference to any Person includes such
Person’s successors and assigns to the extent such successors and assigns are permitted by the
terms of any applicable agreement, and reference to a Person in a particular capacity excludes such
Person in any other capacity or individually. Reference to any agreement (including this
Agreement), document or instrument means such agreement, document or instrument as amended or
modified and in effect from time to time in accordance with the terms thereof and, if applicable,
the terms hereof. Reference to any Applicable Law means such Applicable Law as amended, modified,
codified, replaced or re-enacted, in whole or in part, and in effect on the date hereof, including
rules, regulations, enforcement procedures and any interpretations promulgated thereunder.
Underscored references to Articles, Sections, clauses, Exhibits or Schedules shall refer to those
portions of this Agreement, and any underscored references to a clause shall, unless otherwise
identified, refer to the appropriate clause within the same Section in which such reference occurs.
The use of the terms “hereunder”, “hereof”, “hereto” and words of similar import shall refer to
this Agreement as a whole and not to any particular Article, Section or clause of or Exhibit or
Schedule to this Agreement.



ARTICLE II




TRANSFER OF ASSETS; PURCHASE AND SALE

OF ASSETS; ASSUMPTION OF ASSUMED OBLIGATIONS




     SECTION 2.1. Transferred Assets. Subject to the terms and conditions of this
Agreement, (a) on the Effective Date, the Seller shall sell, assign, convey, transfer and deliver
to the Buyer, and the Buyer shall receive, accept and take assignment and delivery of (i) the
Initial Railcars and (ii) the Initial Leases, and any and all Supporting Obligations, income,
proceeds, rent and reserves related thereto and all other amounts payable but not yet received in
connection therewith (including any and all income, rent and proceeds and all other such amounts
due and owing but not yet received as of the Effective Date (or which may become due and owing
after the Effective Date) whether or not relating to periods before or after the Effective Date and
all reserves, whether or not accrued to the Effective Date) (collectively, the “Initial
Transferred Assets”); and (b) subsequent to the Effective Date on each other Transfer Date, the
Seller may sell, assign, convey, transfer and deliver to the Buyer, and the Buyer may receive,
accept and take assignment and delivery of (i) Additional Railcars and (ii) Additional Leases, and
any and all Supporting Obligations, income, proceeds, rent and reserves related thereto and all
other amounts payable but not yet (as of the related Transfer Date) received in connection
therewith (including any and all income, rent and proceeds and all other such amounts due and owing
but not yet received as of such Transfer Date (or which may become due and owing after such
Transfer Date) whether or not relating to periods before or after such Transfer Date and all
reserves, whether or not accrued to the Transfer Date) (collectively, the “Additional
Transferred Assets” and, together with the Initial Transferred Assets, the “Transferred
Assets”).



     SECTION 2.2. Consideration. On each Transfer Date, in exchange for the transfer and
conveyance of the Transferred Assets by the Seller to the Buyer, the Buyer shall pay to the Seller
the Purchase Price of such Transferred Assets.



4









 





     SECTION 2.3. Purchase Price. The Seller and the Buyer agree that (i) the “Purchase
Price” of each Railcar and related Lease shall be equal to each such Railcar’s “Purchase Price” as
determined pursuant to the Loan Agreement, reduced by the amount of Transfer Taxes (if any) paid by
the Buyer pursuant to Section 4.4 with respect to the sale of such Railcar to the Buyer and
(ii) the “Purchase Price” of all other Transferred Assets shall be equal to their “Purchase Price”
as set forth on Schedule C attached to the applicable Bill of Sale.



     SECTION 2.4. Agent to Hold Existing Leases. Upon each applicable Transfer Date, the
Leases transferred on such date and related documentation shall be delivered by the Seller to the
Agent or its designee pursuant to the Loan Documents and shall be administered for the Buyer by
TILC under the Servicing Agreement, in each case subject to the security interests of the
Collateral Agent for the benefit of the Lenders pursuant to the Security Agreement.



     SECTION 2.5. Assumed Obligations. The Buyer shall assume, and agree to pay, perform,
fulfill and discharge, the obligations of the Seller under each Transferred Lease (and each
warranty, guarantee and Permit related to such Leases or the Railcars that are subject to such
Leases) which are required to be performed, and which accrue, after its applicable Transfer Date
(but expressly excluded from such assumption and agreement are any and all liabilities and
obligations of the Seller required to be paid or performed or arising prior to each applicable
Transfer Date), to the extent such Leases, warranties, guaranties and Permits, and all rights of
the Seller thereunder, are effectively assigned to the Buyer pursuant to Sections 2.1 and
2.2 (the “Assumed Obligations”).



     SECTION 2.6. Seller’s Intent. It is the intention of the Seller that the transfer and
assignment contemplated by this Agreement shall constitute an outright conveyance of ownership of
the Transferred Assets from the Seller to the Buyer under applicable state law and that the
beneficial interest in and title to the Transferred Assets 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
law. In the event that, notwithstanding the intent of the Seller, the transfer and assignment
contemplated hereby is held not to be a conveyance of ownership, this Agreement shall constitute a
grant of a security interest in the property referred to in this Section by the Seller for the
benefit of the Buyer to secure the deemed repayment obligation associated with the deemed borrowing
by the Seller in such circumstance.



     SECTION 2.7. Letter-of-Credit Rights. TILC hereby assigns and conveys to the Buyer
all of its beneficial interests in any letters of credit and all of its Letter-of-Credit Rights
relating to the Transferred Leases, whether now existing or created in the future and whether
possessed by TILC on the applicable Transfer Date or acquired by TILC at any time thereafter. The
Buyer hereby appoints TILC as the Buyer’s agent, and TILC hereby accepts such appointment, for the
purpose of making draws under any such letters of credit and Letter-of-Credit Rights. TILC hereby
agrees to cause all proceeds its receives from such letters of credit and Letter-of-Credit Rights
to be deposited promptly into the Collection Account.



5









 





ARTICLE III




REPRESENTATIONS AND WARRANTIES OF THE SELLER




     Each of the Seller and, with respect to Sections 2.7, 3.2, 3.3,
3.4, 3.17(y), 3.17(z), 3.19 and 4.4 only, TILC, hereby
makes on behalf of itself only the following representations and warranties for the benefit of the
Collateral Agent, the Lenders, the Agent and the Buyer. Such representations and warranties are
made as of each Transfer Date, but shall survive such assignment, transfer and conveyance of the
Transferred Assets to the Buyer and its successors and assigns.



     SECTION 3.1. Organization and Good Standing. The Seller is a statutory trust duly
organized, validly existing and in good standing under the laws of the State of Delaware, has all
corporate or other necessary power and authority and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now conducted and is
duly qualified as a foreign entity, licensed and in good standing in each jurisdiction where
qualification or licensing is required by the nature of its business or the character and location
of its property, business or customers and in which the failure to so qualify or be licensed or be
in good standing, as the case may be, in the aggregate, could have a Material Adverse Effect.



     SECTION 3.2. Power; Authorization; Enforceable Obligations. Each of the Seller and
TILC has the corporate or other necessary power and authority, and the legal right to execute,
deliver and perform this Agreement, and has taken all necessary corporate or other action to
authorize the execution, delivery and performance of this Agreement. No consent or authorization
of, filing with, notice to or other similar act by or in respect of, any Governmental Authority or
any other Person is required to be obtained or made by or on behalf of the Seller or TILC in
connection with the execution, delivery, performance, validity or enforceability of this Agreement,
except for (i) consents, authorizations, notices and filings disclosed in Schedule 5.02 to the Loan
Agreement, all of which have been obtained or made and (ii) filings to perfect and maintain the
perfection of Liens created by the Collateral Documents. This Agreement has been duly executed and
delivered on behalf of each of the Seller and TILC. This Agreement constitutes a legal, valid and
binding obligation of each of the Seller and TILC, and is enforceable against each of the Seller
and TILC, in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by equitable principles of general applicability (regardless of
whether enforcement is sought by proceedings in equity or at law).



     SECTION 3.3. No Conflicts. Neither the execution and delivery by each of the Seller
and TILC, nor the consummation of the transactions contemplated herein or therein, nor performance
of and compliance with the terms and provisions hereof or thereof by each of the Seller and TILC,
nor the exercise of remedies by the Buyer under this Agreement, will (i) violate or conflict with
any provision of the Seller’s or TILC’s Organization Documents (ii) violate, contravene or conflict
with any Applicable Law, (iii) violate, contravene or conflict with any Contractual Obligation to
which the Seller or TILC is a party or by which the Seller or TILC may be bound, or (iv) result in
or require the creation of any Lien upon or with respect to its properties (other than Liens
created by the Transaction Documents).



6









 





     SECTION 3.4. No Litigation Pending. There are no proceedings pending or, to the
Knowledge of the Seller, threatened against the Seller or its Affiliates in any court or before any
Governmental Authority or arbitration board or tribunal which would affect adversely the ability of
the Seller or TILC to perform their respective obligations under this Agreement, nor is the Seller
or any of its Affiliates in default with respect to any order of any court or Governmental
Authority or arbitration board or tribunal, the default under which would adversely affect the
ability of the Seller or TILC to perform their respective obligations under, or the enforcement
ability of, this Agreement.



     SECTION 3.5. No Violation of Authority or Applicable Law. The Seller is not in
violation of any term of any charter instrument, by-law or in any other material agreement or
instrument to which it is a party or by which it or its properties may be bound, except where
non-compliance, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. The Seller is in compliance with all Applicable Laws, ordinances,
governmental rules and regulations to which it is subject, the failure to comply with which would
have a Material Adverse Effect on its operations or condition, financial or otherwise, or would
impair the ability of the Seller to perform its obligations under this Agreement, and has obtained
all licenses, permits, franchises and other governmental authorizations material to the conduct of
its business.



     SECTION 3.6. Bulk Sales Notice. The Seller has furnished all relevant parties with
such notices required of it in a timely manner as are required under “bulk sale” laws of its state
or any other relevant jurisdiction.



     SECTION 3.7. Title. The Seller has conveyed to the Buyer good and marketable title to
the Transferred Railcars and the Transferred Leases, free and clear of all Liens (other than
Permitted Liens), and such conveyance is not void or voidable under any Applicable Law. All action
necessary to convey to the Buyer all of the Seller’s right, title and interest in and to the
Transferred Assets has been taken by the Seller. Upon such conveyance, the Buyer is the sole owner
of such Railcars and the assignee of the Seller’s interest as sole “lessor” under such Leases.



     SECTION 3.8. Records. The Seller will cause the Seller’s records to be marked to
reflect the transfer of the Transferred Assets to the Buyer. The Seller has transferred the
Transferred Assets to the Buyer which are intended to constitute sales, absolute assignments and
conveyances of ownership thereof, such that such Railcars and related Leases would not be property
of the Seller’s estate in the event of a bankruptcy of the Seller. The transfers are to be
reflected on the Seller’s own balance sheet and other financial statements and/or internal records
as transfers of ownership of such assts, consistent with GAAP. The Seller will respond to any
third-party inquiry consistent with such characterization.



     SECTION 3.9. [Reserved].



     SECTION 3.10. No Restrictions on Transfer. On each Transfer Date, all Railcars listed
on Schedule A to the Bill of Sale being delivered on such Transfer Date are free and clear
of any restrictions on the sale, assignment or transfer thereof by the Seller.



7









 





     SECTION 3.11. Broker’s Fees. No broker’s or finder’s or placement fee or commission,
is payable with respect to the transactions contemplated by this Agreement.



     SECTION 3.12. Railcars. As of the Transfer Date of each Transferred Railcar, such
Transferred Railcar (A) materially conforms with the specifications contained in each applicable
Independent Appraisal, (B) has a fair market value not less than its Purchase Price, (C) is
marked with the railroad equipment number (also known as the running number) as noted on
Schedule A to the applicable Bill of Sale and at no time since its manufacture has such
Transferred Railcar been identified by any other railroad equipment number, (D) has not been
substantially refurbished or rebuilt, excluding normal repairs in the ordinary course of
maintenance, (E) is in good order and repair, ordinary wear and tear excepted, (F) is in compliance
with all Applicable Laws (including applicable Interchange Rules of the AAR) governing the use and
maintenance thereof, (G) is in material compliance with manufacturer’s warranties (to the extent
such warranties are or should be then available other than due to the passage of time) and (H) is
an Eligible Railcar.



     SECTION 3.13. Marks. The railcar identification marks listed on Schedule A to each
Bill of Sale for each Railcar listed therein are the Marks used on such Railcars as of the Transfer
Date of such Railcar, and each such Mark is as of such Transfer Date owned of record by the Marks
Company.



     SECTION 3.14. Event of Loss. As of each applicable Transfer Date, neither the Seller
nor any of its Affiliates has received any notice of the occurrence of any Event of Loss, or any
event which with the passage of time would constitute an Event of Loss, with respect to any Railcar
to be transferred on such date.



     SECTION 3.15. Solvency. Transfers of Railcars and Leases hereunder are made in good
faith and not with the intent to hinder, delay or defraud any entity to which the Seller is or
shall become indebted; and as of the time of each such transfer, the Seller is Solvent, and the
Seller will not cease to be Solvent as the result of such transfer.



     SECTION 3.16. Permits; etc. The Seller possesses all Permits, concessions and
consents of or from all Governmental Authorities and agencies the absence of which in the aggregate
would have a Material Adverse Effect.



     SECTION 3.17. Leases. As of the Transfer Date of each Transferred Lease, the Seller
(or in the case of each clause (y) and clause (z) of this Section 3.17,
TILC) represents and warrants that:




     (a) Such Lease provides for payment in Dollars.




     (b) No default under any such Lease has occurred which has been waived by any party
thereto, and, to the Seller’s Knowledge, each party is in compliance with the terms of such
Lease in all material respects.




     (c) The Lessee under each such Lease is (A) organized under the laws of the United
States (or any state thereof or the District of Columbia), Canada (provincial or federal) or
Mexico (state or federal) as a common carrier which is a “railroad” (as defined



8









 







in the Bankruptcy Code), (B) a corporation, limited partnership or limited liability
company organized under the laws of the United States (or any state thereof or the District
of Columbia), Canada (provincial or federal) or Mexico (state or federal), or (C) a Lessee
otherwise approved by the Agent in its sole discretion.




     (d) All Applicable Laws in respect of each such Lease have been complied with in all
material respects and each such Lease complies in all material respects with all Applicable
Laws of the jurisdiction in which it was originated.




     (e) Each such Lease represents the legal, valid and binding obligation of the Lessee
thereunder, enforceable against such Lessee in accordance with its terms (subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors’ rights generally or by equitable principles) and all parties to each
such Lease have the legal capacity to execute such Lease.




     (f) Each such Lease has not been satisfied, subordinated or rescinded and remains in
full force and effect.




     (g) No provision of any such Lease has been waived, amended, or modified in any
respect, except by instruments or documents, copies of which have been delivered to the
Buyer and the Agent and, in any event, no such Lease has been amended or modified since its
origination to cure a non-payment thereunder occurring during the one-year period (or
shorter period, as applicable) prior to the date of the applicable Request, except as
disclosed in accordance with Section 2.02(a) of the Loan Agreement.




     (h) Such Lease and each originally executed copy of such Lease contains a Chattel Paper
Legend and is designated as the first, second or other consecutive counterpart, as
applicable, of such Lease (except as otherwise consented to by the Agent as contemplated in
Section 4.02(f) of the Loan Agreement). Each executed original Lease marked as the first
counterpart of such Lease has been delivered to the Collateral Agent or its designee on or
prior to the date hereof.




     (i) All payments under each such Lease required to have been paid on the date hereof,
including any sales, use, gross receipts, or other similar tax required to be collected by
the Seller in connection with such Lease, or during the one-year period (or shorter period,
as applicable) prior to the date of the Applicable Request, have been paid (except as
disclosed in accordance with Section 2.02(a) of the Loan Agreement), and the Lessee has not
prepaid any payments for periods occurring after the date herein (except to the extent such
amounts are being transferred to the Buyer hereunder).




     (j) No proceedings or, to the Seller’s Knowledge, investigations are pending, or have
been threatened asserting the invalidity of any such Lease, or seeking any determination or
ruling that might adversely and materially affect the validity or enforceability of any such
Lease.




     (k) No such Lease requires the consent of a Lessee (unless such consent has been
obtained) or contains any other restriction relating to the transfer or assignment of



9









 







such Lease so as to adversely affect or prohibit the assignment of such Lease as
contemplated hereby.




     (l) With respect to any such Lease for which the Seller collects maintenance payments,
the Seller is not in default under any agreement with the applicable maintenance provider or
the applicable Lessee related to maintenance payments due and owing on the Transfer Date to
the applicable maintenance provider or the applicable Lessee, as the case may be.




     (m) Any guarantees required at the time of origination of such Lease remain in full
force and effect.




     (n) The transfer and assignment to the Buyer of such Lease and the Seller’s right,
title and interest in and to the subject Railcars will not violate the terms or provisions
of such Lease or any other agreement to which the Seller then is a party or by which it is
bound.




     (o) Such Leases were originated by the Seller or TILC, on behalf of the Seller, in the
ordinary course of business. The origination and collection practices used by the Seller or
TILC, as the case may be, with respect to each such Lease have been legal in all respects
except where the failure to do so would not result in a material adverse effect on the
collectibility of such Leases.




     (p) With respect to any Lease transferred on the Effective Date, no such Lease contains
any purchase option, except as the Buyer and the Agent have each been notified in writing
prior to the Effective Date (which notice shall describe the terms of any such option).




     (q) With respect to any Lease which is transferred after the Effective Date, no such
Lease contains any purchase option, except as the Buyer and the Agent have each been
notified in writing prior to such transfer (which notice shall describe the terms of any
such option).




     (r) No such Lease has been originated in or is subject to the laws of any jurisdiction
whose laws would make the assignment and transfer thereof pursuant to the terms hereof
unlawful.




     (s) The Lessee under such Lease has accepted the subject Railcars and, after reasonable
opportunity to inspect and test, has not notified the Seller or, to the best Knowledge of
the Seller, TILC of any defects thereof.




     (t) No event has occurred or act or thing has been done or omitted to be done by the
Seller or, to the best Knowledge of the Seller, TILC pursuant to which or as a result of
which such Lease can be terminated or the obligations of any such party thereunder would be
rendered invalid, illegal or unenforceable.




     (u) The Seller has, or has caused to be, delivered to the Buyer (or to TILC on behalf
of the Buyer) true and complete copies of such Lease and any and all material



10









 







ancillary documents pertaining thereto (including, but not limited to, all amendments,
consents and evidence of commencement dates and expiration dates).




     (v) Each such Lease is for the Railcar identified therein and each such Railcar is or
will become, concurrently with such Lease, a Transferred Asset.




     (w) Except as otherwise disclosed to the Buyer, such Lease and other Portfolio Leases
are on lease and other terms which are no different, taken as a whole, than those for
similar railcars owned, leased or managed by the Seller. Each such Lease is substantially
in the form of Exhibit I-1, I-2 or I-3 to the Loan Agreement.




     (x) Each such Lease is an Eligible Lease.




     (y) Each such Lease is a Lease that is properly treated for United States federal
income tax purposes, taking into account Applicable Law as of the date such Lease is added
to the Portfolio, as a Lease of a Railcar that does not convey ownership of such Railcar for
such income tax purposes to the Lessees of such Railcars.




     (z) Any letter of credit or Letter-of-Credit Right relating to each such Lease names
TILC as the beneficiary of such letter of credit or Letter-of-Credit Right.



     SECTION 3.18. Marks Company Interest. As of the Transfer Date of each Transferred
Railcar, the Seller has caused the Marks Company Interests with respect to the Marks on such
Railcar to be issued to the Buyer by the Marks Company.



     SECTION 3.19. Full Disclosure. No representation or warranty of the Seller or TILC in
this Agreement, nor any statement or certificate furnished or to be furnished to the Buyer pursuant
to this Agreement, or in connection with the transactions contemplated by this Agreement, contains
any untrue statement of a material fact, or omits to state a material fact necessary to make the
statements contained herein or therein, in the light of the circumstances under which they were
made, not misleading.



     SECTION 3.20. Fair Labor Standards Act. To the best of the Seller’s knowledge, all of
the Transferred Railcars have been produced in compliance with the applicable requirements of the
Fair Labor Standards Act, as amended from time to time, or any successor statute, and regulations
promulgated thereunder.



ARTICLE IV




COVENANTS OF THE SELLER




     The Seller hereby covenants and agrees for the benefit of the Buyer, the Agent and the Lenders
to perform each of the following covenants.



     SECTION 4.1. Implementing Agreement. Subject to the terms and conditions hereof, the
Seller shall take all action required of it to fulfill its obligations under the terms of this
Agreement and shall otherwise use all commercially reasonable efforts to facilitate the
consummation of the transactions contemplated hereby.



11









 





     SECTION 4.2. Consents and Approvals. The Seller shall obtain all consents, approvals,
certificates and other documents required in connection with the performance by it of its
obligations under this Agreement and the consummation by it of the transactions contemplated
hereby, including all such consents and approvals required in connection with any of the
Transferred Leases and Permits. The Seller shall make, or cause to be made, all filings, notices,
applications, statements and reports to all Governmental Authorities and other Persons that are
required to be made prior to the applicable Transfer Date by or on behalf of the Seller or any of
its Affiliates pursuant to any Applicable Law or Transferred Lease in connection with this
Agreement and the transactions contemplated hereby, and shall cooperate with the Buyer in making
all such filings, notices, applications, statements and reports that are required to be made prior
to the applicable Transfer Date by or on behalf of the Buyer or any of its Affiliates pursuant to
any Applicable Law in connection with this Agreement and the transactions contemplated hereby.



     SECTION 4.3. Notification of Breach. The Seller will advise the Buyer and the Agent
promptly, in reasonable detail, upon discovery of the occurrence of any material breach by the
Seller of any of its representations, warranties and covenants contained herein.



     SECTION 4.4. Taxes. Any other provision of this Agreement to the contrary
notwithstanding, any and all sales, use, gross receipts, and other similar transaction-based taxes
imposed on arising with respect to the Transferred Assets pursuant to this Agreement by any
government or agency or subdivision thereof (each a “Transfer Tax”) shall be paid by
Seller, if permitted by Applicable Law. In the event that any Transfer Tax is payable with respect
to the transactions contemplated by this Agreement, and the payment of such Transfer Tax by Seller
is not permitted by Applicable Law, then:




     (a) the separate statement, payment, and reporting of all such Transfer Tax shall be
made by TILC, in its capacity as Servicer, on behalf of the Buyer, in accordance with
Applicable Law; and




     (b) TILC, in its capacity as Servicer, (i) shall recalculate and separately state the
purchase price paid for such Transferred Assets such that the sum of such
recalculated purchase price plus the Transfer Tax thereon to be paid by the Buyer is
equal to the Purchase Price for such Transferred Assets, (ii) collect and set aside a
portion of such Purchase Price in an amount equal to the Transfer Tax computed in clause
(i) of this paragraph and (iii) remit such portion as Transfer Tax to any government or
taxing authority in accordance with Applicable Law.


Buyer and Seller agree to timely sign and deliver such valid exemption or other certificates or
forms as Buyer or Seller may reasonably request and as may be necessary or appropriate to establish
an exemption from (or otherwise reduce), or make a report with respect to, Transfer Taxes. If a
written claim for a Transfer Tax is made by a government or taxing authority against either Seller
or Buyer, such party shall give prompt notice in writing of such claim to the other party (and in
any event within 30 days after its receipt) and shall promptly furnish the other party with copies
of such claim and all other writings received from the government or taxing authority related to
such claim. Any contest pursuant to this section shall be subject to the control and prosecution
of Seller, subject to the reasonable notice and approval of Buyer.




12









 








     SECTION 4.5. Property Tax Reimbursement. The Seller shall reimburse Buyer for
property Taxes paid or to be paid by the Buyer for any period arising out of ownership of the
Transferred Railcars prior to the Transfer Date with respect thereto. The Seller shall make such
reimbursement promptly upon payment by the Buyer of such Taxes.



     SECTION 4.6. Substantive Consolidation. Buyer will be operated in such a manner so
that it would not be substantively consolidated with the Seller, so that the separate existences of
Buyer and Seller would not be disregarded in the event of a bankruptcy or insolvency of Seller, and
in such regard, among other things:




     (a) Seller will not be involved in the day-today management of the Buyer (although
officers or employees of Seller or its parent may serve as officers and/or managing trustees
of the Buyer);




     (b) Seller will maintain separate corporate records and books of account from the Buyer
and otherwise will observe corporate formalities and will provide a separate area within its
office space for the Buyer;




     (c) Seller will maintain its assets separately from the assets of the Buyer (including
through the maintenance of a separate bank account), and Seller’s assets, and records
relating thereto, have not been, and are not and will not be, commingled with those of the
Buyer (except as permitted by the Customer Collections Account Administration Agreement and
except for misdirected Lease payments);




     (d) all of Seller’s business correspondence and other communications will be conducted
in Seller’s own name and on its own stationary;




     (e) Seller will not act as an agent for the Buyer (except to the extent contemplated in
the Transaction Documents);




     (f) Seller will not conduct any of the business of the Buyer in Seller’s name;




     (g) Seller will not pay any liabilities of Buyer, except as expressly provided in the
Transaction Documents;




     (h) Seller will maintain an arm’s length relationship with Buyer;




     (i) Seller will not assume or guarantee or become obligated for the debts of Buyer or
hold out its credit as being available to satisfy the obligations of Buyer;




     (j) Seller will not acquire obligations of Buyer;




     (k) Seller will allocate fairly and reasonably overhead or other expenses that are
properly shared with Buyer;




     (l) Seller will identify and hold itself out as a separate and distinct entity from
Buyer;



13









 






     (m) Seller will not identify Buyer as a division or part of Seller;




     (n) Seller will not induce any third party to rely on the creditworthiness of the Buyer
in order that such third party will be induced to contract with the Seller or any of its
Affiliates (other than the Buyer); and




     (o) Seller will not enter into, or be party to, any other transactions with Buyer
except as provided in the Transaction Documents or except in the ordinary course of its
business and on terms which are intrinsically fair and are no less favorable to Buyer than
would be obtained in a comparable arm’s length transaction with an unrelated third party.



     SECTION 4.7. No Bankruptcy Petition Against the Buyer. The Seller will not, prior to
the date that is one year and one day after the payment in full of all amounts owing pursuant to
the Transaction Documents, institute against the Buyer, or join any other Person in instituting
against the Buyer, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of any applicable jurisdiction. This Section
4.7 shall survive the termination of this Agreement.



     SECTION 4.8. Chattel Paper Counterparts. In the event any executed original of an
Initial Lease comes into the possession of the Seller after the Effective Date that does not
already contain a fully executed Chattel Paper Legend, the Seller shall, if permitted under the
terms of the applicable Initial Lease, promptly deliver such original to TILC, whereupon TILC shall
stamp such original with a Chattel Paper Legend and mark such original with a number that continues
the numbering system begun on the originally executed copies of such Lease which were marked with
such Legend and designation on or prior to the Effective Date in accordance with clause (h)
of Section 3.17.



     SECTION 4.9. Rescission of Transfer. The Buyer shall have the right, at any time, to
rescind the transfer of any particular Railcars and the related Leases thereof effected hereunder
if, as of the applicable Transfer Date, any of the Seller’s representations, warranties, covenants
or agreements contained in Article III with respect to such Railcars or such Leases are
untrue or unperformed in any respect and such untruth or failure to perform has a Material Adverse
Effect. Such right of rescission may also be exercised by the Agent. Upon notice by the Buyer or
the Agent of rescission under this Section 4.9, the Seller shall promptly re-acquire the
Transferred Assets subject of such rescission from the Buyer for (i) either (x) a repurchase price
equal to Adjusted Collateral Value of such Transferred Assets or (y) an in kind exchange for a
Qualifying Replacement Railcar with an Appraised Fair Market Value (within sixty (60) days of
acquisition by the Borrower) of at least the Adjusted Collateral Value of the Railcar subject to
the rescission (except to a de minimis extent) determined at the time of the rescission, plus (ii)
all reasonable out-of-pocket costs and expenses, including, without limitation, interest, fees, and
counsel expenses, incurred by the Buyer in connection with such Transferred Assets, by wire
transfer in immediately available funds to the Net Cash Proceeds Account and, upon receipt of such
amounts in the Net Cash Proceeds Account and upon the transfer of the Qualifying Replacement
Railcar, if applicable, the Buyer will convey to the Seller the applicable Transferred Assets free
and clear of all Liens other than the Lien of the Lease and any Lien resulting by, through or under
the Seller. Any rescission pursuant to this Section 4.9 shall not be deemed to be an Asset



14









 







Disposition. The proceeds of any such rescission shall be applied in accordance with Section
2.07(b)(iv) of the Loan Agreement.



ARTICLE V




DELIVERABLES




     SECTION 5.1. Deliverables. On each Transfer Date, the Seller shall deliver to the
Buyer:




     (a) a Bill of Sale covering each Railcar and each Lease transferred on such date;




     (b) other instruments of transfer reasonably required by the Buyer to evidence the
transfer of the Transferred Assets to the Buyer, duly executed by the Seller; and




     (c) such other documents and instruments as may be required by any other provision of
this Agreement or as may reasonably be required to consummate the transactions contemplated
by this Agreement and the other Transaction Documents, including, without limitation, such
documents and instruments as may be required to be delivered to the Agent, the Lender or any
designee thereof.



ARTICLE VI




MISCELLANEOUS




     SECTION 6.1. Notices and Other Communications. (a) General. Unless otherwise
expressly provided herein, all notices and other communications provided for hereunder
shall be given in accordance with Section 11.01 of the Loan Agreement. Unless another address is
designated by the Seller to the Buyer, the address of the Seller is 2525 Stemmons Freeway, Dallas,
Texas, 75207.



     (b) Effectiveness of Facsimile Documents and Signatures. Transaction Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to requirements of Applicable Law, have the same force and effect as manually-signed
originals and shall be binding on the Seller and the Buyer.



     SECTION 6.2. Effect of Investigation. Except as otherwise provided herein, any due
diligence review, audit or other investigation or inquiry undertaken or performed by or on behalf
of the Buyer shall not limit, qualify, modify or amend the representations, warranties or covenants
of, or indemnities by, the Seller made or undertaken pursuant to this Agreement, irrespective of
the knowledge and information received (or which should have been received) therefrom by the Buyer.



     SECTION 6.3. Waivers. The failure of a party hereto at any time or times to require
performance of any provision hereof shall in no manner affect its right at a later time to enforce
the same. No waiver by a party of any condition or of any breach of any term, covenant,
representation or warranty contained in this Agreement shall be effective unless in writing, and



15









 







no waiver in any one or more instances shall be deemed to be a further or continuing waiver of
any such condition or breach in other instances or a waiver of any other condition or breach of any
other term, covenant, representation or warranty.



     SECTION 6.4. Amendment. This Agreement may be amended, modified or supplemented, but
only in writing signed by the Buyer, the Seller and TILC and approved by the Agent, except in the
case of Sections 2.7, 3.2, 3.3, 3.4, 3.17(y), 3.19
or 4.4, which shall also require the approval of TILC.



     SECTION 6.5. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns; provided that no
assignment of any rights or obligations shall be made by the Seller without the written consent of
the Buyer and the Agent.



     SECTION 6.6. Assignment to Collateral Agent or Agent. It is understood that this
Agreement and all rights of the Buyer hereunder (a) will be collaterally assigned by the Buyer to
the Collateral Agent for the benefit of the Protected Parties as provided in the Loan Documents and
(b) may be assigned at any time by the Buyer to the Agent for the benefit of the Protected Parties.
The Seller expressly agrees to any such assignment and agrees that all of its duties, obligations,
representations and warranties hereunder shall be for the benefit of, and, subject to the terms of
the Loan Documents, may be enforced by, the Collateral Agent or the Agent, as the case may be, and
any successor to or assignee of the rights of any thereof under the Loan Documents.



     SECTION 6.7. Further Assurances. Upon the reasonable request of the Buyer, the Seller
will on and after the Effective Date execute and deliver to the Buyer such other documents,
releases, assignments and other instruments and do all other things as may be required to
effectuate completely the transfer and assignment to the Buyer of, and to vest fully in the Buyer
title to, each of the Transferred Assets, and to otherwise carry out the purposes of this
Agreement.



     SECTION 6.8. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions thereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     SECTION 6.9. Remedies Cumulative. The remedies provided in this Agreement shall be
cumulative and shall not preclude the assertion or exercise of any other rights or remedies
available under Applicable Law, in equity or otherwise.



     SECTION 6.10. Entire Understanding. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions contemplated hereby and
supersede any and all prior agreements, arrangements and understandings among the parties relating
to the subject matter hereof.



16









 





     SECTION 6.11. Headings. The headings of the articles, sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.



     SECTION 6.12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.



     SECTION 6.13. Survival of Representations and Warranties. All representations and
warranties made hereunder or in any other document delivered pursuant hereto or in connection
herewith shall survive the execution and delivery hereof and thereof, and shall be fully effective
and enforceable until the Termination Date. Such representations and warranties have been or will
be relied upon by the Buyer, regardless of any investigation made by the Buyer or on its behalf and
notwithstanding that the Buyer may have had notice or Knowledge of any default at the time of any
transfer or conveyance hereunder or under any Bill of Sale.



     SECTION 6.14. Governing Law; Submission to Jurisdiction. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES. Any legal action or proceeding with respect to this Agreement may be brought in
the courts of the State of New York in New York County, or of the United States for the Southern
District of New York and, by execution and delivery of this Agreement, the Seller hereby
irrevocably accepts for itself and in respect of its property, generally and unconditionally, the
nonexclusive jurisdiction of such courts. The Seller irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such court and any claim that any such proceeding brought in any
such court has been brought in an inconvenient forum.



     SECTION 6.15. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER
OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY
OF THEM WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY



[Signatures Follow]




17









 





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



	 	 	 	 	 
	 	TRINITY RAIL LEASING TRUST II

 	 
	 	By:  	/s/  Thomas C. Jardine
 	 
	 	 	Name:  	Thomas C. Jardine 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	TRINITY RAIL LEASING VI LLC, as Buyer

 	 
	 	By:  	Trinity Industries Leasing Company, its                                                        sole Member
 	 
	 
	 	 	 
	 	By:  	                                                  /s/  Eric Marchetto
 	 
	 	 	Name:  	Eric Marchetto 	 
	 	 	Title:  	Executive Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	TRINITY INDUSTRIES LEASING COMPANY

(solely with respect to Sections 2.7,
3.2, 3.3, 3.4,
3.17(y), 3.17(z), 3.19 and
4.4)

 	 
	 	By:  	/s/  Eric Marchetto
 	 
	 	 	Name:  	Eric Marchetto 	 
	 	 	Title:  	Executive Vice President