exv10w1






Exhibit 10.1




Execution Version




SUPPLY AGREEMENT 




     This Supply Agreement (this “Agreement”) is made as of this 14th day of
March, 2011 (the “Effective Date”), by and between GATX Corporation, a corporation
organized under the laws of the State of New York (“Buyer”), and Trinity Rail Group, LLC, a
limited liability company organized under the laws of the State of Delaware (“Seller”)
(collectively, the “Parties” and individually, a “Party”).



     In consideration of the mutual promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree
as follows:




	1.	 	TERM. Except to the extent sooner terminated pursuant to the terms hereof, the term of
this Agreement shall commence on the Effective Date and end on the fifth (5th)
anniversary date of the Effective Date; provided, that if Seller has not Delivered
(as hereinafter defined) all of the Railcars (as hereinafter defined) ordered by Buyer
hereunder on or before such end date, this Agreement shall expire on the date the last
Railcar is Delivered (the “Term”).
	 
	2.	 	PURCHASE COMMITMENT AND QUANTITY. Buyer hereby commits to purchase during the Term a total
of twelve thousand five hundred (12,500) Railcars (the “Base Order Quantity”) and to
submit to Seller, pursuant to the terms of this Agreement, Buyer’s purchase orders to fulfill
such commitment. Seller agrees to manufacture, sell and Deliver to Buyer during the Term the
12,500 Railcars as ordered by Buyer. Notwithstanding anything to the contrary contained
herein, Buyer shall not be required to purchase, and Seller shall not be required to
manufacture, sell and Deliver, any Railcars in excess of the Base Order Quantity under the
terms of this Agreement.
	 
	3.	 	RAILCARS AVAILABLE FOR PURCHASE.






	 	3.1.	 	Except to the extent later removed from Exhibits A, B or C pursuant to
Section 3.5, Seller shall make available for sale, and Buyer shall purchase, Railcars
consisting of one or more of (i) the types of Railcar listed in Exhibits A, B, and C
(the “Railcar Types”) as of the Effective Date; (ii) the Modified Railcars
(including those Railcars and Railcar Types treated as a Modified Railcar under
Section 3.4); and (iii) those railcars and railcar types, if any, that are added to
Exhibits A, B, or C after the Effective Date in accordance with Sections 3.3 or 3.4,
or by mutual written agreement of the Parties (collectively, “Railcars” and
individually, a “Railcar”). For the avoidance of doubt, each unit within an
articulated or drawbar-coupled string of railcars shall be considered a single Railcar
for all purposes hereunder.




 









 












	 	3.2.	 	Buyer may purchase from Seller hereunder, Railcar Types (i) that, on or after
the Effective Date, [*****]1 (each of the foregoing described in clauses
(i) and (ii) above, individually, a “Modified Railcar” and collectively,
“Modified Railcars”), and Exhibit A, B, and/or C, respectively, shall be
amended without further action by the Parties to include each such Modified Railcar.
	 
	 	3.3.	 	Buyer may not purchase “Excluded Railcars” as defined in this Section
3.3. “Excluded Railcars” are (i) railcars or railcar types that are not listed on
Exhibits A, B, or C; (ii) railcars and railcar types [*****] (each of the foregoing
described in clause (ii) above, individually, a “Developed Railcar” and
collectively, “Developed Railcars”); [*****].
	 
	 	 	 	[*****] then, in any such case, such Excluded Railcar shall thereafter constitute a
Railcar which Buyer may purchase from Seller and Exhibit C shall be amended without
further action by the Parties to include such Excluded Railcar (except, in the case
of clause (y) above, to the extent prohibited under a written agreement between
Seller and the Third Party that had previously been the exclusive purchaser of such
Excluded Railcar).
	 
	 	3.4.	 	If a Railcar and/or Railcar Type meet the definition of a Developed Railcar
set out in Section 3.3 as well as the definition of a Modified Railcar set out in
Section 3.2, the Railcar shall be a Developed Railcar for all purposes under this
Agreement. Notwithstanding the foregoing sentence, the Railcars and the Railcar Types
shall include, and Buyer may purchase from Seller hereunder, a railcar and railcar
type [*****], in which case, unless otherwise agreed by the Parties, such Railcar
shall be treated as a Modified Railcar in all respects except that Exhibit A shall be
amended without further action by the Parties to include such Railcar as a
“Specialized Car I” in such Exhibit.
	 
	 	3.5.	 	Once a Railcar is included on Exhibit A, B or C, Buyer may submit an Order
for such Railcar from Seller hereunder until such time that the Parties mutually agree
to remove such Railcar from such Exhibit.
	 
	 	3.6.	 	For purposes of this Agreement:






	 	3.6.1.	 	“Third Party” shall mean any Person that is not a (i) Party to this
Agreement or (ii) an Affiliate (as hereinafter defined) of a Party to this
Agreement;
	 
	 	3.6.2.	 	“Affiliate” shall mean, with respect to any Person, any other Person
controlling, controlled by, or under common control with the first Person.
	 
	 	3.6.3.	 	“Control” (including the terms “controlling,” “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the







 




			
	1	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




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	 	 	 	power to direct or cause the direction of the management or the policies of a Person, whether through the ownership of at least 51% of
the voting securities, by contract or otherwise; and
	 
	 	3.6.4.	 	“Person” shall mean an individual, partnership, limited partnership,
limited liability company, trust, business trust, estate, corporation, custodian,
trustee, executor, administrator, nominee, business trust, registered limited
liability partnership, association, government, governmental subdivision,
governmental agency, governmental instrumentality and any other legal or
commercial entity in its own or in a representative capacity.






	4.	 	SPECIFICATION.






	 	4.1.	 	With respect to each Railcar Type set forth on Exhibits A, B, and C as of the
Effective Date, including a Railcar Type added pursuant to Section 3 hereof or by
mutual agreement of the Parties after the Effective Date, the applicable Railcar
“Specification” shall consist of (i) Seller’s then-current standard
specification as of the date of the applicable Seller’s Order Confirmation (as
hereinafter defined) for such Railcar as designated by the applicable “Seller Spec.
No.” (hereinafter referred to as “Seller Specification”), (ii) any materials,
parts, Components, or railcar configuration alternatives requested by Buyer (subject to
Seller’s consent, such consent not to be unreasonably withheld or delayed) specified in
the applicable Seller’s Order Confirmation (“Alternates”) and (iii) as
subsequently modified after the date of Seller’s Order Confirmation in any Change
Orders (as defined in Section 9.8), if applicable. The Seller Specification shall not
provide for, and Seller may not use, non-new parts (other than non-new Buyer-Supplied
Components) on Railcars manufactured for Buyer hereunder without Buyer’s prior written
consent.
	 
	 	4.2.	 	As of the Effective Date, Seller has provided a copy of the Seller
Specification for each Railcar Type set forth on Exhibits A, B, and C to Buyer (and, in
the case of Railcar Types added to Exhibits A, B, or C after the Effective Date, a copy
will be promptly provided to Buyer after such Railcar Type is added to the applicable
Exhibit). Seller may reasonably modify the Seller Specification from time to time
during Term, which updates to the Seller Specification shall be identifiable by
revision date and version number and copies of which will be made available to Buyer
upon Buyer’s written request.






	5.	 	RAILCAR PRICING.






	 	5.1.	 	Pricing for Railcars Listed on Exhibit A.






	 	5.1.1.	 	Buyer’s Estimated Base Sales Price and Seller’s Order Confirmation Price for
Railcars listed on Exhibit A. The “Buyer’s Estimated Base Sales Price”
for Railcars listed on Exhibit A shall be calculated by





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	 	 	 	[*****].2 “Seller’s Order Confirmation Price” for
Railcars listed on Exhibit A shall equal [*****].
	 
	 	5.1.2.	 	Invoice Price for Railcars on Exhibit A. Seller’s “Invoice Price”
for a Railcar listed on Exhibit A shall be [*****].
	 
	 	5.1.3.	 	[*****].






	 	5.1.3.1.	 	[*****],






	 	(a)	 	[*****].
	 
	 	(b)	 	[*****].
	 
	 	(c)	 	[*****].






	 	5.1.3.2.	 	[*****].






	 	5.2.	 	Pricing for Railcars Listed on Exhibits B and C.






	 	5.2.1.	 	Buyer’s Price for Railcars Listed on Exhibits B and C. “Seller’s Order
Confirmation Price” for Railcars listed on Exhibits B or C shall be
[*****].
	 
	 	5.2.2.	 	[*****].
	 
	 	5.2.3.	 	Invoice Prices for Railcars on Exhibits B and C. The “Invoice Price”
for a Railcar listed on Exhibits B or C shall be equal to [*****].
	 
	 	5.2.4.	 	[*****]:






	 	5.2.4.1.	 	[*****],






	 	(a)	 	[*****].
	 
	 	(b)	 	[*****].
	 
	 	(c)	 	[*****].






	 	5.2.4.2.	 	[*****].






	 	5.2.5.	 	[*****].






	 	5.3.	 	Pricing Examples. The Parties agree that the pricing examples dated as of
the Effective Date and initialed by the Parties reflect the methodology by which







 




			
	2	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




4









 











	 	 	 	calculations shall be made for Railcar pricing pursuant to Sections 5 and 6
hereunder.






	6.	 	SELLER’S STANDARD MANUFACTURING COST.






	 	6.1.	 	Except as otherwise expressly provided herein, all calculations of Seller’s
Standard Manufacturing Cost (as defined below) shall conform to and be made using
Seller’s Cost Accounting Policy and Procedure, dated and current as of the Effective
Date and initialed by the Parties (“Seller’s Costing Policy”).






	 	6.1.1.	 	Seller may modify Seller’s Costing Policy to the extent necessary to comply with
any changes in U.S. generally accepted accounting procedures (GAAP), international
financial reporting standards (IFRS) or other applicable accounting regulatory
mandates.
	 
	 	6.1.2.	 	[*****].3
	 
	 	6.1.3.	 	Following any modifications to Seller’s Costing Policy pursuant to Section
6.1.1, [*****], Seller shall promptly provide an updated copy (which shall
indicate the date of most recent revision) of Seller’s Costing Policy to Buyer,
which shall be initialed by the Parties and replace the prior version of Seller’s
Costing Policy as of the date of such revision without further action of the
Parties.
	 
	 	6.1.4.	 	Notwithstanding anything to the contrary contained in Seller’s Costing Policy,
in the event of any conflicts between this Agreement and the Seller’s Costing
Policy, the terms of this Agreement shall control.






	 	6.2.	 	“Seller’s Standard Manufacturing Cost” means, with respect to any
Railcar, an amount equal to [*****] for such Railcar.
	 
	 	6.3.	 	[*****]. “Components” means, for all Railcars, wheels, axles,
sideframes, bolsters, couplers, draft gear, air brake equipment, bearings and yokes
and, as applicable for certain Railcar Types, heads, nozzles, valves, fittings, gates,
hatches and doors. [*****].






	7.	 	THIRD PARTY REVIEW. Seller’s compliance with Sections 5 and 6 of this Agreement is subject
to Third Party review (“Third Party Review”), and the terms and conditions of such
Third Party Review are set forth on Exhibit G attached hereto.
	 
	8.	 	[*****].4







 




			
	3	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.
	 
	4	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




5









 











	9.	 	ORDERS.






	 	9.1.	 	Annual Order Quantity and Monthly Order Quantity. “Order Year” means
from March 14, 2011 through March 13, 2012 for the first Order Year, and thereafter
each following period of twelve (12) consecutive months. Buyer shall order 2,500
Railcars per Order Year (“Annual Order Quantity”) until the Base Order Quantity
is reached. Of those 2,500 Railcars, Buyer shall order [*****] per month from Exhibit
A (“Monthly Order Quantity”) of each Order Year for a total of [*****] per
Order Year (“Scheduled Cars”), in each case until the Base Order Quantity is
reached. The Parties agree that out of the Annual Order Quantity, [*****] Railcars can
be a mix of either tank cars or freight cars from Exhibits A, B, and C
(“Unscheduled Cars”).
	 
	 	9.2.	 	Production Slot Allocation for Scheduled Cars. Seller shall schedule car
production slots in each month of an Order Year to produce the Monthly Order Quantity,
for a total of [*****] production slots for Scheduled Cars in each Order Year
(“Allocated Production Slots”). Notwithstanding the foregoing or anything to
the contrary contained in this Agreement, Seller will have no obligation to schedule
more than [*****] Allocated Production Slots in any one month during the Term. For the
avoidance of doubt, accepted Orders for Unscheduled Cars are not eligible for Allocated
Production Slots and shall not impact the scheduling or Delivery of Scheduled Cars in
accordance with Section 9.6.1.
	 
	 	9.3.	 	Unscheduled Cars. Buyer’s Order(s) accepted by Seller’s Order Confirmation for
Unscheduled Cars will be placed in the next available production slot in Seller’s then
current backlog. Buyer’s obligation to order the [*****] per Order Year is firm and
the duration of Seller’s railcar backlog and the effect such backlog has on Delivery of
Unscheduled Cars shall not permit Buyer to avoid placing its required Order per Order
Year for Unscheduled Cars. [*****].
	 
	 	9.4.	 	Monthly Price Lists; Pricing Proposals. At the beginning of each Order Year,
Seller and Buyer shall mutually agree to a list totaling [*****] Railcars from Exhibits
A, B and C for which Seller shall provide Buyer with monthly updates, as to Exhibit A
Railcars, to Buyer’s Estimated Base Sales Price(s), and as to Exhibit B and C Railcars,
to the [*****] for such Railcars under then-current market conditions, during the Order
Year (the “Monthly Price List”). In the event a Railcar is not listed on the
Monthly Price List, upon Buyer’s written request, Seller shall provide Buyer with a
written pricing proposal for the requested Railcars within ten (10) business days
following such request, which pricing proposal shall be consistent with the terms of
this Agreement.
	 
	 	9.5.	 	Order Form. Each order submitted by Buyer shall be in the form set forth on
Exhibit E attached hereto and shall be subject to the terms and conditions of this
Agreement (“Order”). Each Order shall specify (i) the Railcar Type; (ii) the
quantity of Railcars for each Railcar Type; (iii) any Alternates for the Railcars
ordered; (iv) any new Buyer-Supplied Components that Buyer will be providing;




6









 












	 		 	(v) any non-new Buyer-Supplied Components that Buyer will be providing; and (vi) the
price agreed upon by the Parties pursuant to Section 5.2.1 for the Railcar(s)
ordered. Subject to Seller’s rights of rejection under Section 9.7, upon Seller’s
reasonable written request, Buyer will correct any Order that does not conform to
the form set forth on Exhibit E.






	 	9.6.	 	Order Placement.






	 	9.6.1.	 	Orders for Scheduled Cars must be placed by Buyer [*****]5
(collectively, “Scheduled Car Lead Times”) prior to their Allocated
Production Slots by delivering each such Order per the instructions on the
Order form. Unless otherwise agreed by the Parties, such Orders for Scheduled
Cars shall be (i) filled in the order in which they were placed, and (ii)
Delivered by Seller within the final month of the applicable Scheduled Car Lead
Times. Seller shall Deliver at least [*****]. If Buyer fails to place one or
more Orders for all or any portion of the Scheduled Cars within the Scheduled
Car Lead Times, Seller shall place the Order(s) for Buyer consistent with
Buyer’s default instructions for orders of Scheduled Cars (“Default
Scheduled Car Order Instructions”) set forth on Exhibit K hereto; which
Exhibit shall identify specific Railcar(s). Subject to Section 9.7 (unless
otherwise agreed by the Parties), Buyer may update the Default Scheduled Car
Order Instructions at any time by delivery of written notice to Seller,
provided each such update identifies specific Railcars, in which case Exhibit K
shall be amended without further action by the Parties to include such updated
Default Scheduled Car Order Instructions in Exhibit K and such update shall be
effective for all Orders following each such update.
	 
	 	9.6.2.	 	Orders for Unscheduled Cars will be placed by Buyer from time to time by
delivering each such Order per the instructions on the Order form. In
accordance with the procedures set forth in Section 9.6.3, such Unscheduled
Cars shall be added to Seller’s next available production slots and added to
Buyer’s Delivery Schedule. If Buyer fails to place one or more Orders for all
or any portion of the Order Year Unscheduled Cars requirement by the first day
of the last month of an Order Year, Seller shall place the Order for Buyer with
Buyer’s default instructions for orders of Unscheduled Cars (“Default
Unscheduled Car Order Instructions”) set forth on Exhibit K hereto; which
Exhibit shall identify specific Railcar(s), and unless otherwise agreed by the
Parties, shall consist of Railcar(s) from Exhibit A only. Subject to Section
9.7 (unless otherwise agreed by the Parties), Buyer may update the Default
Unscheduled Car Order Instructions at any time by delivery of written notice to
Seller, provided each such update identifies specific Railcar(s), in which case Exhibit K







 




			
	5	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




7









 











	 	 	 	shall be amended without further action by the Parties to include such
updated Default Unscheduled Car Order Instructions
in Exhibit K and such update shall be effective for all Orders following each such update.
	 
	 	9.6.3.	 	Within five (5) business days after Seller’s receipt of an Order, and
provided Seller has not rejected the Order pursuant to Section 9.7, Seller
shall provide Buyer with an order confirmation, substantially in the form of
Exhibit L and in accordance with the terms hereof, confirming (i) the Seller’s
Order Confirmation Price for Railcars on Exhibits A, B, or C and (ii) the month
the Railcars will commence Delivery (the “Seller’s Order
Confirmation”). Within ten (10) business days of Seller’s issuance of an
Order Confirmation, Seller shall add Buyer’s Order to the Buyer Delivery
schedule (the “Buyer’s Delivery Schedule”) indicating the quantity of
Railcars to be Delivered each month (the “Committed Delivery Month”), a
copy of which shall be promptly provided to Buyer. Within sixty (60) days of
the first Railcar Delivery in a Committed Delivery Month, Seller shall update
Buyer’s Delivery Schedule to reflect the week in which such Railcar will be
Delivered (the “Committed Delivery Date”), a copy of which update shall
be promptly provided to Buyer. Any change to Buyer’s Delivery Schedule shall
require the written agreement of both Buyer and Seller.
	 
	 	9.6.4.	 	Each Order for Railcars that (i) complies with this Section 9, (ii) has been
delivered to Seller in accordance with this Section 9, and (iii) which has not
been rejected by Seller within five (5) business days of its placement pursuant
to Section 9.7, shall be deemed to have been accepted by Seller and shall
represent a firm commitment by Seller to manufacture, sell, and Deliver, and
for Buyer to purchase and take Delivery of, the Railcars specified in such
Order in accordance herewith, regardless of whether Seller has complied with
its obligation to return a signed Order Confirmation to Buyer in the time
specified under Section 9.6.3.
	 
	 	9.6.5.	 	If any term or condition in Buyer’s Order, Seller’s Order Confirmation, or
other documentation by or from either Party relating to the subject matter of
the Order or of this Agreement (i) conflicts with a term or condition of this
Agreement or (ii) except to the extent the Parties mutually agree in writing,
adds to or supplements the terms of this Agreement, and in either case the
terms or conditions of this Agreement shall control and the conflicting term or
condition, or the additional or supplemental term or condition, as the case may
be, shall be without force or effect with respect to such subject matter or
Order.






	 	9.7.	 	Seller Order Rejection. In the event that Seller does not have a production
line operating to produce Unscheduled Railcars on Exhibits B or C ordered by Buyer,
Seller shall notify Buyer within five (5) business days following receipt of such Order
that it cannot manufacture such Railcars, in which case Buyer shall place its




8









 












	 	 	 	Order for different Railcars to replace such Railcars that Seller cannot
manufacture. Notwithstanding anything to the contrary in this Agreement, Seller
shall ensure that, during the Term of this Agreement, [*****].6
	 
	 	9.8.	 	Change Order. Once a Seller’s Order Confirmation has been issued to Buyer,
Buyer may request in writing a change in an Order specifying the particular Railcars
that are subject to Buyer’s request and the requested change. Within ten (10) business
days following receipt of such request, Seller shall provide Buyer with a Change Order
quote (“Change Order Quote”) comprised of (i) any change to the Buyer’s
Delivery Schedule and (ii) any price adjustment for the Change Order Request. If Buyer
accepts Seller’s Change Order Quote, Buyer shall issue a confirming change Order
(“Change Order”) to Seller within five (5) business days after receipt of the
Change Order Quote. If Seller does not receive a timely Change Order from Buyer
accepting Seller’s Change Order Quote, Buyer’s Order will not be modified, and the
affected Railcars shall be built in accordance with the original Specification and
subject to the original Seller Order Confirmation Price.
	 
	 	9.9.	 	Regulation-Mandated Changes. Seller will promptly notify Buyer of any changes
or additions to the Seller Specification mandated by changes in the Regulations. Any
such changes or additions to the Specification that arise between the date of the
Seller’s Order Confirmation for a Railcar and the date of Delivery for such Railcar
shall be treated as a Change Order in accordance with the procedures set forth in
Section 9.8.
	 
	 	9.10.	 	Lead Time Estimates. Upon Buyer’s reasonable written request, Seller shall
provide Buyer with its then-current estimate of the next available delivery dates for a
Railcar Type as of the date of such request.
	 
	 	9.11.	 	Initial Order. Within five (5) business days following the Effective Date,
Buyer may submit an initial Order or Orders for a total of [*****] Railcars (the
“Initial Order(s)”). Notwithstanding anything to the contrary contained
herein, with respect to the Initial Order(s), the Parties agree that [*****]. Except
as otherwise provided in this Section 9.11, all other terms and conditions of this
Agreement shall apply to the Initial Order(s) and the Railcars Ordered thereunder.






	10.	 	DELIVERY AND SHIPMENT.






	 	10.1.	 	Delivery and Title.






	 	10.1.1.	 	Unless otherwise agreed to in writing and signed by both Seller and Buyer,
“Delivery” (including the terms “Deliver” and “Delivered”)
of the Railcars shall be defined as (i) in the case of Railcars manufactured in
the United States, actual delivery of such Railcars, F.O.B. Seller’s plant or (ii)
in the







 




			
	6	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




9









 











	 	 	 	case of Railcars manufactured in Mexico, actual delivery of such Railcars,
F.O.B. site on the United States side of the border at a site to be mutually
agreed between Buyer and Seller or, if no agreement has been reached by the
time such Railcar is ready for Delivery, at a site on the United States side of
the border determined by Seller. Unless otherwise agreed to in writing and
signed by both Seller and Buyer, Buyer agrees to Delivery of all or any number
of the Railcars as they are accepted pursuant to Section 11.1.
	 
	 	10.1.2.	 	Subject to Section 10.1.3 below, exclusive ownership, rights of possession and
control, and risk of loss to each Railcar manufactured by Seller, whether in the
United States or Mexico, will pass to Buyer at the time of Delivery of such
Railcar.
	 
	 	10.1.3.	 	Unless otherwise agreed to in writing and signed by both Seller and Buyer, with
respect to Railcars manufactured in Mexico, the acceptance of such Railcars
pursuant to Section 11.1 (i) represents Buyer’s authorization for Seller to ship
such Railcars to Buyer for Delivery, and (ii) shall not transfer title or risk of
loss of such Railcars until they have been Delivered by Seller to Buyer at the
F.O.B. site on the United States side of the border set forth in Section 10.1.1
above.






	 	10.2.	 	After Delivery of a Railcar to Buyer as provided in Section 10.1, at Buyer’s
written request, Seller will ship such finished Railcar to Buyer or Buyer’s customer at
the place designated by Buyer to Seller and any resulting freight charges shall be for
Buyer’s account. Such freight charges may appear as a line item on Seller’s invoice
for the Railcars if Seller pays such freight charges for Buyer’s account.
	 
	 	10.3.	 	[*****].7
	 
	 	10.4.	 	Force Majeure Events.






	 	10.4.1.	 	Seller shall not be liable for any delay or failure to perform in whole or in
part caused by “Force Majeure Events” which adversely impact the
performance of Seller’s obligations regardless of when occurring, including, but
not limited to, restrictions or Regulations imposed by the federal or any state
government or any subdivision or agency thereof or by acts of God; acts of Buyer,
its officers, directors, employees, agents or contractors, including, but not
limited to, Buyer’s failure to provide in a timely manner any parts, Components,
equipment or labor, including plans, drawings or engineers, which it has agreed to
supply; war, preparation for war or the acts or interventions of naval or military
executives or other agencies of government; acts of terrorists; blockade,
sabotage, vandalism, malicious







 




			
	7	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




10









 











	 	 	 	mischief, bomb scares, insurrection or threats thereof; rain that requires a shutdown of a substantial portion of Seller’s
facility where the Railcars are being manufactured and/or the painting/coating area of such facility prior to
12:00 noon (local time) on a regularly scheduled work day; landslides,
hurricanes, earthquakes or other natural calamity; delays of subcontractors or
of carriers by land, sea or air; delays due to changes in drawings or
Specification; collisions or fires, floods, strikes, work stoppages, shortage
of labor, lockouts or other industrial disturbances, accidents, casualties,
shortages or late delivery of supplies (including, without limitation, fuel
supplies) or raw materials (including, without limitation, steel) from usual
sources at customary pricing, or other causes beyond Seller’s reasonable
control.
	 
	 	10.4.2.	 	In the event of any Force Majeure Event, the Parties agree the date of Delivery
or performance shall be extended for a period equal to the time lost by reason of
the delay; provided, however, that if the period of delay exceeds one hundred
eighty (180) days from the original Committed Delivery Date, Buyer may cancel the
Delivery of such Railcar subject to the delay due to the Force Majeure Event. Any
cancelled Railcar shall be treated as having been validly ordered for the purposes
of Buyer’s obligations hereunder with respect to the Base Order Quantity required
under Section 2 and the applicable Annual Order Quantity and/or Monthly Order
Quantity required under Section 9.1. If delivery of any items necessary for the
Delivery of such Railcars is delayed by Buyer for more than thirty (30) days,
Seller may adjust the Invoice Price payable hereunder to reflect the direct
damages attributable to such delay (e.g., increases in cost of supplies, shipping
and the like), but not to include indirect or consequential damages. Nothing
hereunder shall require Seller to arrange for shipment and acceptance of any
required materials in advance of Seller’s actual needs. In the event that the
occurrence of a Force Majeure Event affects a Party’s performance of its
obligations hereunder for more than 240 consecutive days, the other Party may
terminate this Agreement thereafter upon 30 days advance written notice.






	11.	 	QUALITY OF RAILCARS.






	 	11.1.	 	Inspection and Acceptance. In the case of Railcars, Seller shall give Buyer
reasonable access to Seller’s manufacturing facilities to inspect the Railcars during
construction. Such inspections shall be so conducted as to not interfere unreasonably
with Seller’s operations. Acceptance or rejection of a Railcar shall be made by Buyer
before shipment of the Railcars manufactured in Mexico and before Delivery of Railcars
manufactured in the United States. In the event Buyer chooses to inspect the Railcars,
upon completion of such inspection, Buyer shall execute a certificate of acceptance
covering all Railcars found to be completed in accordance with the Specification and
shall deliver the executed certificates of acceptance to Seller (each, a
“Certificate of Acceptance”). Each Certificate of





11









 





	 	 	 	Acceptance, with respect to
Railcars covered thereby, shall indicate that, based upon such inspection, such
Railcars conform in workmanship, material and
construction, and in all other respects, to the applicable Specification and the
requirements and provisions of the applicable Order. If Buyer, upon receiving
notice of when the Railcars will be ready for inspection and provided that such
Railcars are available for inspection, chooses not to have an inspector present
within three (3) business days after the date that the notice states that the
Railcars shall be ready for inspection or Buyer’s inspector fails to inspect the
Railcars within three (3) business days after the date that the notice states the
Railcars will be ready for inspection, Buyer shall be deemed to have accepted the
applicable Railcars at the close of business on the day that is three (3) business
days after the date that such Railcars were ready for inspection and Seller will
execute, on behalf of Buyer, a Certificate of Acceptance dated as of the day that is
three (3) business days after the date that such Railcars were ready for inspection.
Notwithstanding the foregoing, Seller may ship Railcars at any time upon Buyer’s
notification to Seller that it will not inspect Railcars for which Seller has
provided notice that Railcars are available for inspection. The execution of a
Certificate of Acceptance shall not relieve the Seller of any of its obligations
under the Agreement nor shall it constitute a waiver by the Buyer with respect to
any defect or deficiency of workmanship, materials, construction or other deviation
from the terms and conditions of this Agreement. Once a Certificate of Acceptance
with respect to a Railcar has been executed, Buyer shall have no rights of
inspection under this Section 11.1, nor any rights of rejection and cancellation
under Section 11.2 with respect to such Railcar.
	 
	 	11.2.	 	[*****].8
	 
	 	11.3.	 	Premises Liability Indemnification. BUYER AGREES TO DEFEND, HOLD HARMLESS AND
INDEMNIFY SELLER AND ITS AFFILIATES, SUBSIDIARIES, RELATED ENTITIES, OFFICERS,
DIRECTORS, SHAREHOLDERS, AGENTS AND EMPLOYEES (COLLECTIVELY REFERRED TO AS THE
“SELLER INDEMNITEES”), FROM AND AGAINST ANY AND ALL CAUSES OF ACTION, SUITS,
DEBTS, CLAIMS, LIABILITIES, LOSSES, BODILY INJURIES OR DEATH, DAMAGE TO REAL OR
PERSONAL PROPERTY (INCLUDING THE LOSS OR USE THEREOF), JUDGMENTS, COSTS, INCLUDING, BUT
NOT LIMITED TO, ACTUAL, INCIDENTAL AND COVER DAMAGES, ATTORNEYS’ FEES, COURT COSTS AND
EXPENSES OF WHATEVER NATURE OR KIND, IN LAW OR IN EQUITY, INCURRED IN THE DEFENSE OF
THE SELLER INDEMNITEES OR OTHERWISE, TO THE EXTENT ARISING OUT OF, OR RESULTING FROM
ANY ACT, ERROR, OMISSION, NEGLIGENCE OR MISCONDUCT OF BUYER, BUYER’S EMPLOYEES, AGENTS
(OTHER THAN ANY AGENT OF







 




			
	8	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




12









 











	 	 	 	BUYER WHO IS EMPLOYED BY SELLER) OR SUBCONTRACTORS, OR ANY
EMPLOYEE OF BUYER’S AGENT (OTHER THAN ANY
AGENT OF BUYER WHO IS EMPLOYED BY SELLER) OR SUBCONTRACTOR WHILE ON SELLER’S
PROPERTY.






	12.	 	PAYMENT AND CLOSING.






	 	12.1.	 	Payment of Purchase Price and Closing of Sale. On or before ten (10) business
days following Buyer’s receipt of (i) the shipping report for a Railcar, including the
lightweight of each Railcar shipped and each Railcar’s assigned number, (ii) a
Certificate of Acceptance executed by Buyer’s inspector, or the acceptance of any such
Railcar has been deemed pursuant to Section 11.1 hereof, (iii) Seller’s invoice for
such Railcar(s) with the Invoice Price broken down to detail the components thereof, if
applicable, and substantially in the form attached hereto as Exhibit M hereof, and (iv)
Seller’s executed Bill of Sale substantially in the form attached hereto as Exhibit H,
Buyer shall pay the Invoice Price for each Railcar manufactured and Delivered by Seller
and accepted by Buyer via wire transfer to Seller (pursuant to such wire transfer
instructions as Seller shall provide to Buyer in advance of the due date for such
amounts).
	 
	 	12.2.	 	Taxes. Buyer is solely responsible for all international, federal, state, or
local VAT, GST, sales, use, or other taxes, tariffs, duties, or charges imposed by any
governmental authority or agency, foreign or domestic, upon any Railcar purchased and
sold hereunder or upon the manufacture, sale, transportation, use, or Delivery thereof
(collectively, “Taxes”); provided, however, that Taxes shall
not include any Seller property taxes or taxes based on Seller’s income. While it is
the intent of the Parties that Seller’s invoice for Railcars will include a line item
for Taxes, in the event an amount for applicable Taxes is not included in Seller’s
invoice for Buyer’s account, Buyer shall remain solely responsible for the payment of
such Taxes. For the avoidance of doubt, no Taxes shall be included in Seller’s
Standard Manufacturing Cost for such Railcar. Seller shall provide receipts to Buyer
evidencing Seller’s payment of any such Taxes.
	 
	 	12.3.	 	Late Payments. Other than with respect to amounts disputed up to a maximum of
$[*****]9 of unpaid disputed amounts, if any payment is not received by a
Party on the due date for such payment, and such failure continues for five (5) days
after such due date, such Party shall charge the other Party interest on any unpaid
balance at the prime rate per annum in effect on such due date at Bank of America,
Illinois, plus [*****] percent ([*****]%) or the highest rate permitted by law,
whichever is lower, from the date such payment was due through and including the date
on which actual payment in full is made by such other Party.







 




			
	9	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




13









 











	13.	 	MANUFACTURING WARRANTIES AND DISCLAIMERS; IP INDEMNITY






	 	13.1.	 	Manufacturing Warranties.






	 	13.1.1.	 	Seller warrants solely to Buyer that the assembly, construction and manufacture
of the Railcars by Seller, Seller’s employees and Seller’s subcontractors will be
in accordance with the Specification and Regulations (as defined in Section
13.1.8) for a period of [*****] after Delivery of the applicable Railcars, and
that the material and workmanship of the Railcars furnished by Seller, Seller’s
employees and Seller’s subcontractors will be free from defects under normal use
and service for the [*****] warranty period. This warranty shall not apply to,
and Seller shall not be responsible for, any failure of any Railcar purchased
hereunder which has been subjected to misuse, negligence, alteration, accident,
misloading, mishandling, improper or deficient maintenance, or physical abuse.
Further, this warranty by Seller shall not apply to, and Seller shall not be
responsible for, the deterioration of any Railcar purchased hereunder which
results from normal wear and tear during the [*****] warranty period. Seller’s
only obligation to Buyer under this Section 13.1.1 is limited to promptly
repairing or replacing, at Seller’s exclusive option, the material and workmanship
of the Railcar that is not in conformity with this warranty. Transportation
charges and charges associated with the removal of any commodity shall be prepaid
by Buyer. Seller shall determine, in its sole discretion, the place where any
defective Railcar will be replaced or repaired. Seller shall not be required to
repair or replace any defective Railcar, however, unless Buyer first provides the
defective Railcar to Seller for an examination by Seller within sixty (60) days of
Buyer’s written notice of a potential defect and Seller’s examination of the part
or parts confirms the existence of a warranted defect. [*****].
	 
	 	13.1.2.	 	With respect to interior and exterior primers, paints, coatings, linings,
and/or sealants (the “Coatings”), Seller warrants that it will apply the
Coatings selected by Buyer in accordance with the Coating manufacturer’s
specifications and recommendations, and, except as set forth in this Section
13.1.2, Seller makes no other warranty, express or implied, with respect to the
Coatings or the adequacy of such Coating manufacturer’s specifications and
recommendations. Seller may offer various choices of Coatings at various prices
and of various qualities. The Coatings actually applied by Seller shall be chosen
by Buyer at Buyer’s sole discretion, subject to Seller’s agreement to apply such
Coatings, based on, but not limited to, Seller’s ability to obtain and apply such
Coatings. Buyer’s choice of Coatings is made at Buyer’s sole risk and, except as
set forth below in this Section 13.1.2, Seller makes no warranty, express or
implied, regarding the suitability or effectiveness of any Coatings. With respect
to the Coatings, Seller’s sole obligation under this Section 13.1.2 is limited to
repair or replacement, at the election of Seller, at Seller’s railcar repair shop
or at a shop selected by Seller, of the Coatings installed by Seller in any
Railcar that




14









 






	 	 	 	shall, within [*****]10 after Delivery be returned to Seller with
transportation charges and charges associated with the removal of any commodity
prepaid by Buyer; provided, however, that Buyer provides such Railcar for an
examination by Seller within sixty (60) days of written notification by Buyer
of a potential defective installation of Coatings and such an examination
confirms that the Coatings were defectively installed by Seller. [*****].
	 
	 	13.1.3.	 	In the event that Buyer sells, leases, or otherwise assigns the Railcars, any
such transaction shall not otherwise modify or terminate Seller’s warranty.
	 
	 	13.1.4.	 	In no event and under no circumstances shall Seller ever be liable to Buyer for
a breach of the warranty set forth herein in any amount greater than Seller’s
actual cost of repairing or replacing the defective Railcar that Buyer purchased
from Seller. Under no circumstances shall Seller ever have liability to any Third
Party who asserts any claim by or through Buyer alleging a breach of the warranty
expressly set forth herein, which Seller makes solely and exclusively to Buyer.
Any repair or replacement by Seller pursuant to this warranty will not serve to
extend the warranty in any way beyond [*****] from the date the Railcar is
Delivered to Buyer.
	 
	 	13.1.5.	 	SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY THAT ANY PARTS, MATERIAL, EQUIPMENT
OR COMPONENTS PURCHASED FROM THIRD PARTY SUPPLIERS OR MANUFACTURERS (HEREINAFTER,
EACH A “SUPPLIER OR MANUFACTURER”) AND INSTALLED IN OR ON THE RAILCARS ARE
FREE FROM DEFECTS. ANY PARTS, MATERIAL, EQUIPMENT OR COMPONENTS PURCHASED FROM
SUPPLIERS OR MANUFACTURERS AND INSTALLED IN OR ON THE RAILCARS WILL BE COVERED
UNDER THE WARRANTY GIVEN BY THE SPECIFIC SUPPLIER OR MANUFACTURER AND THE TERMS
SET FORTH THEREIN. SELLER AGREES TO COOPERATE WITH BUYER TO ENFORCE ANY SUCH
SUPPLIER OR MANUFACTURER WARRANTIES, BUT WILL NOT FILE ANY LAWSUIT OR INSTITUTE
OTHER LEGAL PROCEEDING ON BUYER’S BEHALF AND/OR INCUR OTHER LEGAL FEES, COSTS OR
EXPENSES. TO THE EXTENT EXPRESSLY PERMITTED BY ANY SUCH SUPPLIER OR MANUFACTURER,
SELLER AGREES TO TRANSFER AND ASSIGN TO BUYER, WITHOUT WARRANTY OR ASSUMPTION BY
SELLER WITH RESPECT THEREOF, SUCH SUPPLIER’S OR MANUFACTURER’S WARRANTIES COVERING
PARTS, MATERIAL, EQUIPMENT OR COMPONENTS FURNISHED BY SUCH SUPPLIER OR
MANUFACTURER. AS TO SELLER’S INSTALLATION OF PARTS, COMPONENTS OR EQUIPMENT







 




			
	10	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




15









 











	 	 	 	MANUFACTURED BY SUPPLIERS OR MANUFACTURERS, IF SUCH SUPPLIER OR MANUFACTURER HAS A REPRESENTATIVE AT THE JOB SITE DURING SUCH
INSTALLATION, AND IF THE INSTALLATION IS COMPLETED TO THE SATISFACTION OF SUCH
REPRESENTATIVE, IT SHALL BE PRESUMED, SUBJECT TO REBUTTAL BY BUYER, THAT
SELLER’S INSTALLATION HAS BEEN COMPLETED BY SELLER IN ACCORDANCE WITH SUCH
SUPPLIER’S OR MANUFACTURER’S RECOMMENDATIONS IN A GOOD AND WORKMANLIKE MANNER
AND IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
	 
	 	13.1.6.	 	SELLER DOES NOT WARRANT ANY COMPONENTS, EQUIPMENT, ENGINEERING, DESIGNS, PLANS
OR WORKMANSHIP SPECIFIED OR FURNISHED BY BUYER, BUYER’S SUBCONTRACTORS, EMPLOYEES,
ARCHITECTS OR ENGINEERS, OR ANY LABOR PERFORMED BY OTHERS AT THE DIRECTION OR
REQUEST OF BUYER OR BUYER’S REPRESENTATIVE(S) AND SELLER SPECIFICALLY DISCLAIMS
ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION THEREWITH.
	 
	 	13.1.7.	 	THE WARRANTIES STATED HEREIN ARE EXCLUSIVE AND ARE MADE BY SELLER SOLELY TO
BUYER EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES AND REMEDIES: (1) EXPRESS
OR IMPLIED; (2) WRITTEN OR ORAL; (3) AT LAW, IN EQUITY OR UNDER CONTRACT,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE; AND (4) NOTWITHSTANDING ANY COURSE OF DEALING BETWEEN
THE PARTIES OR CUSTOM AND USAGE IN THE TRADE TO THE CONTRARY. OTHER THAN AS
EXPRESSLY SET FORTH IN SECTION 13.1.1, SELLER SHALL HAVE NO LIABILITY TO BUYER AND
BUYER SHALL NOT MAKE ANY CLAIM AGAINST SELLER OR RECOVER ANY AMOUNT WHATSOEVER
FROM SELLER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, COVER, OR
PUNITIVE DAMAGES THAT ARISE OUT OF OR RESULT FROM ANY BREACH BY SELLER OF THE
WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.
	 
	 	13.1.8.	 	For purposes of this Agreement, “Regulations” shall mean all industry
standards for new railcar equipment, including without limitation, all rules,
statutes, regulations, directives and requirements of the United States of America
(including without limitation those of the United States Department of
Transportation) and the specifications and standards of the Association of
American Railroads applicable to new railroad equipment, in each case as may be in
effect on the date of construction of the applicable Railcars.




16









 












	 	13.2.	 	Intellectual Property Infringement.






	 	13.2.1.	 	Subject to Section 13.2.2 below, Seller shall defend any suit or proceeding
brought against Buyer based on a claim that the Railcars, or any product,
accessory, part, component, or attachment thereof, furnished by Seller under
this Agreement, constitute an infringement of any patent of the United States;
provided that Seller is notified promptly, in writing, and is given
authority, information and assistance, at Seller’s expense, for the defense of
same.
	 
	 	13.2.2.	 	Seller’s obligation under Section 13.2.1 shall not cover or apply to (i) any
product, accessory, part, component, or attachment that is not manufactured by
Seller (including any Buyer-Supplied Component), except to the extent, and only
to the extent, that the manufacturer of any such item provides an indemnity
against patent infringement to Seller and (ii) the Railcars, or any part
thereof, manufactured or supplied to Buyer’s design; and, as to such Railcars,
or any part thereof, Seller assumes no liability whatsoever for patent
infringement.
	 
	 	13.2.3.	 	Subject to Section 13.2.4 below, Buyer shall defend any suit or proceeding
brought against Seller based on a claim that Railcars, or any product,
accessory, part, component or attachment (including Buyer-Supplied Components),
manufactured or supplied by Seller to Buyer’s designs, constitute an
infringement of any patent of the United States; provided that Buyer is
notified promptly, in writing, and is given authority, information and
assistance, at Buyer’s expense, for the defense of same.
	 
	 	13.2.4.	 	Buyer’s obligation under Section 13.2.3 shall not cover or apply to (i) any
product, accessory, part, component, or attachment that is not manufactured by
Buyer or (ii) a Buyer-Supplied Component, except to the extent, and only to the
extent, that the manufacturer or supplier of any such item provides an
indemnity against patent infringement to Buyer.
	 
	 	13.2.5.	 	Seller shall pay all damages and costs awarded against Buyer in an
infringement claim covered under Sections 13.2.1 and 13.2.2. In case the
Railcars, or any part thereof covered under Section 13.2.1, are involved in
such a suit, and are held to constitute infringement, and the use of the
Railcars, or any part thereof covered under Section 13.2.1, is enjoined, Seller
shall, at its own expense, and at its option, either procure for Buyer the
right to continue using said Railcar, replace same with non-infringing
equipment, modify said Railcar so that it becomes non-infringing, or refund the
Invoice Price of said Railcar.
	 
	 	13.2.6.	 	Buyer shall pay all damages and costs awarded against Seller in an
infringement claim covered under Sections 13.2.3 and 13.2.4. In case the
Railcars, or any part thereof covered under Section 13.2.3, are involved in





17









 






	 	 	 	such a suit, and are held to constitute infringement, and the use of the
Railcars, or any part thereof covered under Section 13.2.3, is enjoined,
Buyer shall, at its own expense, and at its option, either procure for
itself the right to continue using said Railcar or part thereof, replace
same with non-infringing equipment or modify said Railcar or part thereof so
that it becomes non-infringing.
	 
	 	13.2.7.	 	This Section 13.2 states the sole and entire liability of Seller and/or
Buyer, as applicable, for patent infringement by the Railcars, or any part
thereof. In case of any claim for defense and indemnity under this Section
13.2, Seller and/or Buyer, as applicable, shall undertake to conduct any
proceedings which Seller or Buyer, as applicable, deems necessary to defend the
other Party in respect of such matter. The indemnified Party shall have the
right to participate in those proceedings, at its own expense, but control of
the defense, the litigation, the negotiation, and any settlement shall remain
with the indemnifying Party. This indemnity shall be void if the indemnified
Party fails to provide reasonable cooperation in connection with any such
defense or shall take any action without the prior written consent of
indemnifying Party that unreasonably or materially prejudices the defense of
any such matter. In no event shall the indemnifying Party be required to
employ more than one firm of attorneys in defense of any one matter, but
nothing herein shall prevent the indemnifying Party from doing so, at its
option.






	14.	 	LIMITATION OF LIABILITY. WITH RESPECT TO ANY BREACH OF THIS AGREEMENT, IN NO EVENT SHALL
EITHER PARTY HAVE LIABILITY TO THE OTHER PARTY AND NEITHER PARTY SHALL MAKE ANY CLAIM AGAINST
THE OTHER OR RECOVER ANY AMOUNT WHATSOEVER FROM THE OTHER FOR INDIRECT, CONSEQUENTIAL,
SPECIAL, AND/OR PUNITIVE DAMAGES.
	 
	15.	 	LOCK-UP AND RIGHT OF FIRST REFUSAL.






	 	15.1.	 	Lock-Up. Buyer shall not sell a Railcar for a period of at least one
hundred eighty (180) days following Delivery, provided, however, the
180-day lock-up period shall not apply to (i) any asset-backed financing transaction
for the benefit of Buyer or any of its Affiliates, (ii) any merger, consolidation,
business combination, restructuring, reorganization, sale of all or substantially all
of the assets of Buyer, or any of its Affiliates or other transaction or series of
related transactions in which Buyer’s stockholders do not own or control a majority of
the outstanding voting shares of the continuing or surviving entity immediately after
such transaction(s), (iii) any sale of a Railcar to one of Buyer’s Affiliates, (iv)
any lease of a Railcar by Buyer to one of Buyer’s customers that includes a purchase
option exercisable by such customer after such lock-up period, or (v) the sale of such
Railcar to a Third Party subject to a lease with another Third Party.




18









 












	 	15.2.	 	Right of First Refusal. In the event that, during the period beginning on
the 181st day following the Delivery of a Railcar purchased hereunder and
ending on the one (1) year anniversary of such Delivery (the “Option Period”),
Buyer desires to sell such Railcar to a Third Party, Buyer shall deliver to Seller a
written notice of the proposed sale (a “Sale Notice”) accompanied by a written
offer (the “Offer”) to sell such Railcar to Seller, on an “as is”, “where is”
basis, for an amount in cash equal to the Invoice Price paid by Buyer to Seller for
such Railcar pursuant to this Agreement, provided, however, no Sale
Notice be required to be delivered to Seller in connection with, and such right of
first refusal shall not apply to, (i) any asset-backed financing transaction for the
benefit of Buyer or any of its Affiliates, (ii) any merger, consolidation, business
combination, restructuring, reorganization, sale of all or substantially all of the
assets of Buyer, or any of its Affiliates or other transaction or series of related
transactions in which Buyer’s stockholders do not own or control a majority of the
outstanding voting shares of the continuing or surviving entity immediately after such
transaction(s), (iii) any sale of a Railcar to one of Buyer’s Affiliates, (iv) any
lease of a Railcar by Buyer to one of Buyer’s customers that includes a purchase
option exercisable by such customer after the lock-up period described in Section
15.1, or (v) the sale of such Railcar to a Third Party subject to a lease with another
Third Party. Each Sale Notice shall reasonably identify the Railcar(s) that Buyer
desires to sell to a Third Party during the Option Period but shall not include the
name of the proposed Third Party purchaser or any of the terms or conditions of the
proposed sale. Seller may accept the Offer by delivering written notice (an
“Offer Notice”) to Buyer by no later than 5:00 p.m., Chicago time, on the
tenth (10th) business day following the date of such Sale Notice. If
Seller fails to timely deliver an Offer Notice to Buyer, Seller shall be deemed to
have rejected the Offer. If Seller accepts the Offer, Seller shall close on the
purchase of such Railcar by no later than 5:00 p.m., Chicago time, on the thirtieth
(30th) day (or, if such day is not a business day, the immediately
following business day) following the date of such Offer Notice. The purchase price
for such Railcar shall be paid in full on the closing date by wire transfer of
immediately available funds to an account specified by Buyer at least two (2) days
prior to the closing date. In the event Seller does not accept the Offer, Buyer may
sell the Railcar that was the subject of such Sale Notice to any Third Party purchaser
following Seller’s rejection of the Offer. If, at any time, Buyer includes a Railcar
in a “request for proposal” or other multiple-bid auction process during the Option
Period, in lieu of making the Offer otherwise required hereby, Buyer shall provide
Seller with the opportunity to participate in such process and submit a bid to
purchase such Railcar, in each case subject to the terms and conditions of such
process that are no less favorable to Seller in the aggregate than the terms and
conditions applicable to other participants in such process.





19









 











	16.	 	REPRESENTATIONS AND OTHER WARRANTIES OF SELLER. Seller hereby represents and warrants to
and in favor of Buyer that:






	 	16.1.	 	at the time Seller Delivers each Railcar hereunder, Seller shall hold and
convey to Buyer good and marketable title to such Railcar free and clear of all
indentures, deeds of trust, mortgages, security interests, liens, claims, demands,
encumbrances, privileges, pledges, residual interests, re-marketing rights, purchase
options and other charges of every nature and kind whatsoever, excepting (i) any such
encumbrances resulting from the acts or omissions of Buyer (or those acting under the
authority of Buyer), and (ii) any rights of Seller to a purchase money security
interest applicable to such Railcars;
	 
	 	16.2.	 	Seller is duly formed, validly existing and in good standing in the State of
Delaware and has all requisite limited liability company power and authority to own,
operate or lease the properties and assets now owned, operated or leased by it and to
carry on its business as currently conducted. Seller is duly qualified or licensed to
do business as a foreign entity and is in good standing in each jurisdiction where the
character of its properties and assets owned, operated or leased or the nature of its
activities makes such qualification or license necessary, except where the failure to
be so qualified or licensed or in good standing does not materially and adversely
affect Seller’s ability to perform hereunder;
	 
	 	16.3.	 	this Agreement and all certificates, documents, instruments and agreements
delivered under or in connection with this Agreement (i) have been properly authorized
by all necessary limited liability company action and (ii) do not require the approval
of any holder of units, membership interests, bonds, debentures or other securities
issued by Seller or outstanding under any agreement, indenture or other instrument to
which Seller is a party or by which Seller or its property may be charged or affected;
	 
	 	16.4.	 	Seller’s execution, delivery and performance of this Agreement and all
certificates, documents, instruments and agreements delivered by Seller under or in
connection with this Agreement, and Seller’s compliance with the terms, conditions and
provisions hereof and thereof do not, and will not, (i) constitute a breach of any
existing contractual obligation of Seller, (ii) violate any provision of the
certificate of formation or limited liability company agreement of Seller, (iii)
require the approval or the giving of prior notice to any Third Party or government
agency, (iv) breach or result in the breach of, constitute a default under any of the
provisions of, or result in the creation of any lien, charge, encumbrance or security
interest upon any property or assets of Seller, (v) violate any judgment, order,
injunction, decree or award of any court, administrative agency or governmental body
against, or binding upon, Seller, or (vi) constitute a violation by Seller of any law,
order or regulation applicable to Seller, in each case so as to materially and
adversely affect Seller’s ability to perform or Buyer’s enjoyment of its rights
hereunder;






20











 






	 	16.5.	 	this Agreement and all certificates, documents, instruments and agreements
delivered under or in connection with this Agreement, or in connection with the
consummation of the transactions contemplated hereunder, constitute legal, valid and
binding obligations of Seller, enforceable in accordance with their terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the rights of creditors generally and by general
principles of equity; and
	 
	 	16.6.	 	there are no legal or governmental investigations, actions or proceedings
pending or, to the knowledge of Seller, threatened in writing against Seller before
any court, administrative agency or tribunal which, if determined adversely, would,
individually or in the aggregate, materially adversely affect the transactions
contemplated by this Agreement or the ability of Seller to perform its obligations
hereunder.






	17.	 	REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and warrants to and in
favor of Seller that:






	 	17.1.	 	Buyer is duly incorporated, validly existing and in good standing in the
State of New York and has all requisite corporate power and authority to own, operate
or lease the properties and assets now owned, operated or leased by it and to carry on
its business as currently conducted. Buyer is duly qualified or licensed to do
business as a foreign corporation and is in good standing in each jurisdiction where
the character of its properties and assets owned, operated or leased or the nature of
its activities makes such qualification or license necessary, except where the failure
to be so qualified or licensed or in good standing does not materially and adversely
affect Buyer’s ability to perform hereunder;
	 
	 	17.2.	 	this Agreement and all certificates, documents, instruments and agreements
delivered under or in connection with this Agreement (i) have been properly authorized
by all necessary corporate action and (ii) do not require the approval of any holder
of shares, stocks, bonds, debentures or other securities issued by Buyer or
outstanding under any agreement, indenture or other instrument to which Buyer is a
party or by which Buyer or its property may be charged or affected;
	 
	 	17.3.	 	Buyer’s execution, delivery and performance of this Agreement and all
certificates, documents, instruments and agreements delivered by Buyer under or in
connection with this Agreement, and Buyer’s compliance with the terms, conditions and
provisions hereof and thereof do not, and will not, (i) constitute a breach of any
existing contractual obligation of Buyer, (ii) violate any provision of the charter or
by-laws of Buyer, (iii) require the approval or the giving of prior notice to any
Third Party or government agency, (iv) breach or result in the breach of, constitute a
default under any of the provisions of, or result in the creation of any lien, charge,
encumbrance or security interest upon any property or assets of Buyer, (v) violate any
judgment, order, injunction, decree or award




21









 






	 	 	 	of any court, administrative agency or governmental body against, or binding upon,
Buyer, or (vi) constitute a violation by Buyer of any law, order or regulation
applicable to Buyer, in each case so as to materially and adversely affect Buyer’s
ability to perform or Seller’s enjoyment of its rights hereunder;






	 	17.4.	 	this Agreement and all certificates, documents, instruments and agreements
delivered under or in connection with this Agreement, or in connection with the
consummation of the transactions contemplated hereunder, constitute legal, valid and
binding obligations of Buyer, enforceable in accordance with their terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the rights of creditors generally and by general
principles of equity; and
	 
	 	17.5.	 	there are no legal or governmental investigations, actions, or proceedings
pending or, to the knowledge of Buyer, threatened in writing against Buyer before any
court, administrative agency or tribunal which, if determined adversely, would,
individually or in the aggregate, materially adversely affect the transactions
contemplated by this Agreement or the ability of Buyer to perform its obligations
hereunder.






	18.	 	DEFAULT. Subject to Section 10.4 addressing Force Majeure Events, the occurrence of any
one or more of the following events shall constitute an event of default (“Event of
Default”) hereunder by a Party:






	 	18.1.	 	the failure of such Party to perform a material obligation hereunder;
provided, that such failure to perform is not cured by such Party within thirty
(30) days after receipt of written notice from the other Party specifying such failure
to perform;
	 
	 	18.2.	 	the failure by such Party to pay any amount due and payable pursuant to the
terms of this Agreement, other than amounts disputed by such Party up to a maximum of
$[*****]11 of unpaid disputed amounts; provided that such failure to pay is
not cured by such Party within [*****] after receipt of written notice from the other
Party specifying such failure to pay;
	 
	 	18.3.	 	the (i) filing by such Party of a voluntary petition in bankruptcy, (ii)
adjudication of such Party as a bankrupt or insolvent, (iii) filing by such Party of
any petition seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief for itself under the federal bankruptcy
laws, (iv) consent or acquiescence of such Party to the appointment of a trustee,
receiver, conservator, or liquidator of such Party for all, or any substantial portion
of such Party’s property or assets, or (v) filing of any involuntary petition in
bankruptcy against either Party (provided that any such filing is not withdrawn, vacated,
removed, discharged, or stayed within sixty (60) days thereafter);







 




			
	11	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




22









 











	 	18.4.	 	the admission in writing by such Party of its inability to pay its debts as
they become due;
	 
	 	18.5.	 	the notification in writing to a governmental agency by such Party of its
pending insolvency, or suspension or pending suspension of its operations;
	 
	 	18.6.	 	the making by such Party of any general assignment for the benefit of its
creditors or the taking of similar actions for the protection or benefit of its
creditors;
	 
	 	18.7.	 	in the case of Seller, in the event that, during any rolling [*****] period
during the Term, [*****] percent ([*****]%) or more of the Railcars have been rejected
by Buyer pursuant to Section 11.2; or
	 
	 	18.8.	 	in the case of Seller, in the event that, during any rolling [*****] period
during the Term, [*****] percent ([*****]%) or more of the Railcars have not been
Delivered within [*****] of their respective Committed Delivery Dates (excluding
delayed deliveries resulting from Force Majeure Events and those resulting from quality
rejection pursuant to Section 11.2).






The Parties agree that either Party’s initiation of the dispute resolution provisions
described in Section 21.9 will not be a prerequisite for a Party to give a notice of an
Event of Default or act to delay any of the time periods for cure specified above.




	19.	 	TERMINATION. In addition to any other rights and remedies available under this Agreement
or at law, in equity or otherwise, but subject to Section 14 addressing the limitation of
liability, and in addition to the termination rights relating to a Force Majeure Event as set
forth in Section 10.4, upon the occurrence of an Event of Default, the non-defaulting Party
may terminate this Agreement on a date that is [*****]12 after the date appearing
in a written notice to the other Party regarding such termination. In the event of Agreement
termination under this Section 19, such termination shall not affect any Party’s rights or
obligations that accrued prior to the date of such termination, and any Order of Railcars
placed prior thereto shall be Delivered by Seller, and Buyer shall accept Delivery of such
Railcars that comply with the Specification as provided under Section 11.1, in accordance
with the terms of this Agreement regardless of the effective date of the termination;
provided that Buyer shall not be required to place any new Orders after the date of the
written notice of such termination (regardless of whether Buyer has placed Orders for
Railcars equal to the Base Order Quantity, the Annual Order Quantity for the Order Year in
which such termination occurs, or the Monthly Order Quantity for the Order Month in which
such termination occurs). Notwithstanding the foregoing, in the event of a written notice of termination of this
Agreement by either Party as a result of the occurrence of an Event of Default described
in Section 18.3, the non-defaulting Party shall not have any further obligation







 




			
	12	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




23









 







	 	 	to Deliver
Railcars (in the case of Seller) or to accept any Railcars (in the case of Buyer), in
either case arising under Orders pending as of the date of the Event of Default.






	20.	 	SUPPLY OF SPARE PARTS. For a period beginning on the date hereof and ending on the
[*****], or, if Seller (or Seller’s successor) discontinues the manufacturing of railcars for
Third Parties or discontinues the manufacturing of aftermarket railcar parts and Components
before the expiration of such [*****] period (“Discontinued Operations”), up to the
date of Discontinued Operations, Seller (or such successor) shall make spare parts, fixtures
and assemblies for the Railcars that are proprietary to Seller or Seller’s successors
(“Spare Parts”) and shall be made available to Buyer for purchase at Seller’s then
market price. In the event the date of Discontinued Operations is before the expiration of
such [*****] period, Seller (or Seller’s successor) shall give Buyer as much advance written
notice of such Discontinued Operations as possible, but in no event less than [*****] notice.
In addition, if Seller learns in writing that any of its Suppliers will cease to make any
Spare Parts, Seller shall give Buyer written notice of such Supplier’s decision promptly upon
learning of same.






	21.	 	MISCELLANEOUS.






	 	21.1.	 	Further Assurances. Following acceptance of and payment for any Railcar
hereunder, Seller shall make, do, and execute or cause to be made, done, and executed
all such further acts, deeds and assurances as Buyer or Buyer’s counsel may, at any
time or from time to time, reasonably require to confirm Buyer’s right, title, and
interest in and to such Railcar in accordance with the intent and meaning of this
Agreement.
	 
	 	21.2.	 	Records Provided to Buyer. Within ninety (90) days after the transfer by Bill
of Sale of any Railcar to Buyer, Seller will furnish Buyer with copies, in electronic
form, of documents described on Exhibit I attached hereto (collectively,
“Records”). In addition, Seller will file an application with the AAR for a
certificate of construction (a “Certificate of Construction”) for each Railcar
within thirty (30) days after Delivery of the Railcar(s) to Buyer and shall provide
Buyer with such Certificate of Construction in electronic form within thirty (30) days
after Seller’s receipt thereof. If the AAR fails to issue a Certificate of
Construction for any Railcar within ninety (90) days after the date Seller’s
application was filed with the AAR, Seller will provide prompt written notification
thereof to Buyer. If such delay is attributable, in whole or in part, to an error or
omission by Seller in such application, Seller shall use its commercially reasonable
efforts to remedy such error or omission as soon as possible.
	 
	 	21.3.	 	Communication and Correspondence. Seller shall furnish to Buyer, promptly
upon Seller’s receipt thereof, copies of any notice or correspondence received by
Seller from any Third Party, including any governmental agency, with respect to any
Railcar manufactured by Seller for Buyer pursuant to the terms hereof. Seller




24









 






	 	 	 	shall
also furnish to Buyer, promptly upon Seller’s receipt thereof, copies of any notice or
correspondence received by Seller from any manufacturer or supplier of any part,
material, equipment, or component installed in or on any Railcar manufactured by Seller
for Buyer pursuant to this Agreement.






	 	21.4.	 	Confidentiality. In the course of performance hereunder, each of Buyer and
Seller (with respect to information disclosed by such Party, the “Disclosing
Party”) will disclose to the other Party (the “Receiving Party”), whether
in written, electronic, or oral form, information regarding the Disclosing Party’s
business plans, strategies, and processes that the Disclosing Party reasonably regards
as proprietary and confidential (“Confidential Information”). Confidential
Information shall include, but not be limited to, (1) delivery schedules, (2) pricing,
(3) margins, (4) Specification, (5) Orders, and the identities of, and the requirements
and pricing and delivery schedules for Buyer’s customers, and (6) terms of this
Agreement redacted by the Parties prior to public disclosure. The Receiving Party
agrees to hold the Confidential Information disclosed to it by or on behalf of the
Disclosing Party in confidence, to take commercially reasonable precautions to protect
such Confidential Information from disclosure and to use the Confidential Information
only in connection with the performance of its obligations under this Agreement, in
each case for a period of five (5) years from the date of disclosure. Subject to
Section 21.4.4 hereof, the Receiving Party shall not disclose any Confidential
Information to any of its employees unless such employees need to know such
Confidential Information in order for the Receiving Party to perform its obligations or
exercise its rights hereunder; provided, however, that the Receiving Party takes
commercially reasonable precautions to prevent such employee from (i) disclosing
Confidential Information to other employees who do not need to know such Confidential
Information in order for the Receiving Party to perform its obligations or exercise its
rights hereunder, and (ii) using Confidential Information in such employee’s business
decisions that are unrelated to the Receiving Party’s performance of its obligations or
exercise of its rights under this Agreement. Notwithstanding the foregoing, but
subject to Section 21.4.1, the Receiving Party may disclose Confidential Information to
any of its legal, financial or tax planning representatives (“Representatives”)
who need to know such Confidential Information in order for the Receiving Party to
carry out its obligations or enforce its rights hereunder and who have been informed
of, and the Receiving Party shall cause such Representatives to abide by this Section
21.4; provided, that Buyer may also disclose Records that constitute Confidential
Information to any Third Party for the sole purpose of permitting, and only to the
extent necessary to enable, such Third Party to repair, maintain or modify Railcars
purchased under this Agreement so long as prior to such disclosure, such Third Party
enters into a
confidentiality agreement with Seller on customary terms to be negotiated and agreed
upon by such Third Party and Seller, with Seller’s agreement not to be unreasonably
withheld, conditioned or delayed. Each Party shall be responsible for any action or
failure to act that would constitute a breach or other violation of this Section
21.4 by its Representatives.




25









 












	 	21.4.1.	 	From and after the Effective Date, the Margin Schedule may not be disclosed
to any of Buyer’s directors, officers, employees or Representatives who are not
members of Buyer’s Clean Team. For purposes of this Agreement, “Buyer’s
Clean Team” shall mean those officers, directors or employees of Buyer
identified by title or Buyer’s Representatives, in each case as reasonably
agreed to by the Parties prior to the Effective Date, but at a minimum, Buyer’s
Clean Team shall always consist of at least Buyer’s highest ranking legal,
finance and compliance officers; provided, that (a) Buyer may remove
individuals from Buyer’s Clean Team at any time and from time to time without
advance notice to Seller, and (b) in the event Buyer desires to add any
individuals to Buyer’s Clean Team subsequent to the date hereof, Buyer shall
provide Seller with the name and title of such individuals, and such
individuals will only be added to Buyer’s Clean Team with Seller’s written
approval.
	 
	 	21.4.2.	 	Seller’s Standard Manufacturing Cost and Seller’s actual cost for Railcars,
or any component thereof, shall only be disclosed to Buyer’s Third Party
Reviewer as set forth in Exhibit G.
	 
	 	21.4.3.	 	Confidential Information does not include information that: (i) the
Receiving Party can demonstrate was in its possession prior to being disclosed
by the Disclosing Party hereunder and the source of the information was not
under an obligation of confidentiality to the Disclosing Party; (ii) is now, or
hereafter becomes, through no act or failure to act on the part of the
Receiving Party, generally known to the public; (iii) is rightfully obtained
from a Third Party not bound under an obligation of confidentiality to the
Disclosing Party; or (iv) is independently developed by the Receiving Party
without reference to or use of any Confidential Information. The foregoing
restrictions on disclosure of Confidential Information do not apply to any
disclosure of Confidential Information with respect to which the Receiving
Party is advised by legal counsel that such disclosure is necessary or
compelled (a) under the federal securities laws or other applicable law, or by
the rules and regulations of the Securities and Exchange Commission (the
“SEC”) or of any stock exchange on which the Receiving Party’s stock is
listed, or (b) pursuant to the terms of any deposition, interrogatory, formal
litigation discovery request, subpoena, civil investigative demand, court order
or similar process to which the Receiving Party is subject; provided,
that the Receiving Party notifies the Disclosing Party (x) as promptly as
reasonably possible following its determination that such disclosure is
necessary or compelled under sub-clause (a) above, and (y) as promptly as
reasonably possible after service of such legal process and to the extent
legally permissible so that the Disclosing Party may seek an appropriate
protective order, confidential treatment, or other remedy. In the event the
Receiving Party is required or compelled to disclose Confidential




26









 






	 	 	 	Information pursuant to the immediately preceding sentence, the Receiving
Party may disclose only that portion of such Confidential Information with
respect to which the Receiving Party has been advised by its counsel is
required or compelled to be disclosed.






	 	21.4.4.	 	Upon the request of the Disclosing Party following the expiration or
termination of this Agreement, the Receiving Party will return or destroy all
of the Disclosing Party’s Confidential Information, except that the Receiving
Party may retain Confidential Information of the Disclosing Party that is (i)
necessary in connection with the enforcement of the Receiving Party’s rights
under this Agreement, (ii) required to be maintained by the Receiving Party’s
internal document retention policies or (iii) contained in an archived computer
system backup in accordance with the Receiving Party’s security or disaster
recovery procedures; provided that any such retained or archived Confidential
Information shall remain subject to the provisions of this Section 21.4 for so
long as it is maintained or archived; provided, further, a Receiving Party’s
legal or IT employees may access such retained or archived Confidential
Information solely to the extent necessary to perform their respective
functions described under this Section 21.4.4.
	 
	 	21.4.5.	 	Except as may be required by the federal securities laws or other applicable
law, or by the rules and regulations of the SEC or of any stock exchange on
which a Party’s stock is listed, no Party will make public the existence or
content of this Agreement or the negotiations leading to or pursuant to this
Agreement without the prior written consent of the other Party;
provided, that no Party will be prohibited from disclosing the general
nature of the business relationship established hereby at any time;
provided, further, that the Parties agree that Buyer shall be
permitted to file a copy of this Agreement with the SEC and in connection
therewith shall request confidential treatment for certain portions of this
Agreement and certain of the Exhibits attached hereto as agreed by the Parties.






	 	21.5.	 	Broker’s Commission. Each Party agrees to indemnify and hold the other Party
harmless from and against any claims for commissions arising out of the acts of such
Party and for expenses (including reasonable attorneys’ fees) and costs relating to
such claims or otherwise relating to such Party’s retention of any broker, finder or
other Person relating to a sale of the Railcars.
	 
	 	21.6.	 	Successors and Permitted Assigns. Neither Party may assign, transfer, sell,
or convey this Agreement to a Third Party without the prior written consent of the
other Party, which consent will not be unreasonably withheld or delayed. In the event
of a merger, consolidation or change in Control of a Party whereby this Agreement
transfers by operation of law (a “Transaction”) to such Party’s successor in
interest (the “Transferee”), then:




27









 












	 	21.6.1.	 	In the case of a Transaction involving Seller, the Invoice Price for any
Exhibit A Railcar that is charged by Transferee to Buyer shall not increase as a
result of the Transaction or be greater than what Seller’s Invoice Price for any
such Exhibit A Railcar would have been absent the Transaction and in the ordinary
course of Seller’s operation of its business (in either case, an
“impermissible increase”). For purposes of determining impermissible
increases, upon reasonable request from Buyer, Transferee shall permit Buyer or
Buyer’s agent access to Transferee’s relevant books and records as to an Exhibit A
Railcar on commercially reasonable and confidential terms and conditions
(excluding direct access by Buyer to Transferee’s manufacturing cost information,
which access and review shall be handled in a manner similar to that described
under Exhibit G hereto but without limitation as to the number of reviews). Buyer
may terminate this Agreement with [*****]13 advance written notice in
the event [*****].
	 
	 	21.6.2.	 	In the case of a Transaction involving Buyer, Seller may terminate this
Agreement with sixty (60) days advance written notice in the event (i) a
Transaction occurs prior to Buyer’s first acceptance of Railcars hereunder, or
(ii) after the Transaction, the Transferee competes with Seller in railcar
manufacturing in North America.






	 	21.7.	 	Severability. Any term, condition or provision of this Agreement which is, or
is deemed to be, void, prohibited, or unenforceable in any jurisdiction shall be, as to
such jurisdiction, severable herefrom and ineffective to the extent of such avoidance,
prohibition, and unenforceability without in any way invalidating the remaining terms,
conditions, and provisions hereof. Any such avoidance, prohibition, and
unenforceability in any jurisdiction shall not invalidate or render unenforceable such
term, condition, or provision in any other jurisdiction.
	 
	 	21.8.	 	Governing Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE
OF DELAWARE AND SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, THE LAWS OF SUCH STATE WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICT OF LAW THEREOF.
	 
	 	21.9.	 	Dispute Resolution. Each dispute, claim or controversy arising out of or in
any manner related to this Agreement or the breach thereof (a “Dispute”)
between the Parties will be resolved or adjudicated in accordance with the provisions
described in this Section 21.9.






	 	21.9.1.	 	In the event of a Dispute, either Party may, but is not required to, provide
written notice of such Dispute to the other Party (a “Dispute Notice”)
and







 




			
	13	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




28









 











	 	 	 	in such event, representatives at the vice president level of each Party
shall meet in person to attempt to resolve such Dispute (a “Dispute
Negotiation”). Each Dispute Negotiation will take place at a time and
place agreed to by such representatives, within thirty (30) days after the date
of the Dispute Notice. At any time after delivery of a Dispute Notice, either
Seller or Buyer may, at its discretion, either in addition or as an alternative
to such Dispute Negotiation, initiate mediation in Delaware, administered by
the American Arbitration Association (the “AAA”) under its commercial
mediation procedures then in effect. While Buyer and Seller shall have an
obligation to participate in each Dispute Negotiation and any mediation
(provided the mediation is scheduled within sixty (60) days after the date of
the Dispute Notice and at a time and place reasonably acceptable to Buyer and
Seller), nothing herein shall obligate Buyer or Seller to enter into any
agreement or reach any conclusion as a result of such Dispute Negotiation or
mediation.
	 
	 	21.9.2.	 	In the event that a Dispute Notice is provided and the Parties are unable to
reach a mutually satisfactory resolution of the Dispute within ninety (90) days
after the date through Dispute Negotiation or mediation of such Dispute Notice,
or at any time in the event that no Dispute Notice is provided, either Party
may, upon written notice to the other (an “Arbitration Demand”)
initiate a binding arbitration, to take place in Delaware, administered by the
AAA (the “Arbitration”) under the AAA Commercial Arbitration Rules and
Procedures (“AAA Rules”); provided, however, that in
the event of a conflict between the AAA Rules and the provisions of this
Section 21.9, the provisions of this Section 21.9 shall control. The
Arbitration shall be heard and determined by a panel of three (3) arbitrators
(each an “Arbitrator”). Within ten (10) business days after the
Arbitration Demand, each Party shall select, and provide written notice to the
other Party of the identity of, a single Arbitrator who shall be deemed
non-neutral and not subject to the provisions of Rule R-17 of the AAA Rules.
The third Arbitrator shall be selected in accordance with Rule R-11 of the AAA
Rules within twenty (20) business days after the Arbitration Demand;
provided, however, that the third Arbitrator must be a licensed
attorney, have experience in manufacturing and be listed on the AAA’s Large,
Complex Commercial Case Panel (or such other equivalent replacement roster of
experienced arbitrators that the AAA designates),
unless the matter of dispute arises under or relates to Exhibit G, in which
case such third Arbitrator must be an accountant with cost accounting and
manufacturing experience.
	 
	 	21.9.3.	 	Any issue concerning the extent to which any Dispute is subject to
Arbitration, or concerning the applicability, interpretation, enforceability or
validity of these procedures, shall be governed by the United States Federal
Arbitration Act and not by any state arbitration law. Except in connection
with a Party’s application to a court of competent jurisdiction




29









 






	 	 	 	for interim or
conservatory injunctive relief, to preserve a claim, to preserve a position
superior to other creditors, to resolve any issue concerning jurisdiction, the
existence or validity of the Arbitration provisions of this Section 21.9, or
the extent to which any Dispute is subject to Arbitration, or to compel
Arbitration in accordance with this Section 21.9, or to enforce judgment on the
Arbitrators’ award, all of the foregoing which shall be decided by a court of
competent jurisdiction, no Party may institute legal proceedings related to a
Dispute. Any legal proceeding permitted by the foregoing will be heard and
determined only in a state or federal court sitting in Delaware and the Parties
hereby irrevocably submit to the exclusive jurisdiction of such courts in any
such legal proceeding, irrevocably waive any objection to venue, including the
defense of an inconvenient forum, to the maintenance of any such legal
proceeding, and irrevocably agree that written notice of such legal proceeding
in compliance with the notice provisions of this Agreement constitutes valid
and lawful service of process against them without the necessity for service by
any other means; provided, that, notwithstanding the foregoing, the
Parties have the right to enforce judgment on the arbitrators’ award in any
court of competent jurisdiction.
	 
	 	21.9.4.	 	In any Arbitration initiated pursuant to this Section 21.9, the Parties
shall be permitted to take the following discovery without seeking leave of the
Arbitrators and each Party agrees to cooperate in producing all discovery
contemplated by this Section 21.9 or otherwise ordered by the Arbitrators. The
scope of discovery in the Arbitration shall be that each Party may obtain
discovery regarding any non-privileged matter that is relevant to any Party’s
claim or defense.
	 
	 	21.9.5.	 	Each Party may serve requests for production of documents and other tangible
things and such requests and the responses thereto shall be in accordance with
the provisions of Rule 34 of the FRCP, as if such provisions applied to the
Arbitration, and such requests may include requests for electronically stored
information, which requests and responses shall be in accordance with the
provisions of Rule 34 and Rule 26(b)(2)(b) of the FRCP as if such provisions
applied to the Arbitration proceeding. Each Party may serve interrogatories
and such interrogatories
and the responses thereto shall be in accordance with the provisions of Rule
33 of the FRCP as if such provisions applied to the Arbitration. Each Party
may serve requests for admission and such requests and the responses thereto
shall be in accordance with the provisions of Rule 36 of the FRCP as if such
provisions applied to the Arbitration. Each Party may take up to 10
depositions of the other Party by serving a notice of deposition and the
other Party must produce the deponents as requested in accordance with the
provisions of Rule 30 of the FRCP, including Rule 30(b)(6), as if such
provisions applied to the Arbitration; provided, however,
that a Party that seeks to present the testimony of a third-party




30









 






	 	 	 	witness at
the Arbitration must produce such witness for deposition prior to the
Arbitration and such deposition shall not count towards the foregoing 10
deposition limit; provided, further, that a Party that seeks
to present the opinion testimony of an expert witness at the Arbitration
must produce a written expert report in accordance with the provisions of
Rule 26(a)(2) of the FRCP as if such provisions applied to the Arbitration
and produce such expert witness for deposition prior to the Arbitration and
such deposition shall not count towards the foregoing 10 deposition limit.






	 	21.9.6.	 	The Parties agree that in the event of Arbitration and before engaging in
any discovery, they will execute a Confidentiality Agreement and Agreed
Protective Order in the form attached hereto as Exhibit J, which shall govern
the exchange of information produced by any party or non-party in the
Arbitration. In such event, the Parties agree that they will request that the
Arbitrators enter the fully-executed Confidentiality Agreement and Agreed
Protective Order and that, in the case of any conflict between its terms and
the terms of this Agreement, the Confidentiality Agreement and Agreed
Protective Order shall control. The Arbitrators may, upon written request of
any Party, limit the amount or scope of written discovery described above only
after all Parties have been given the opportunity to oppose such request in
writing. In no event, however, may the Arbitrator reduce the number of
depositions provided for above. The Arbitrator may compel a Party to comply
with discovery or its obligations under the Confidentiality Agreement and
Agreed Protective Order, including by awarding attorneys’ fees, assessing
monetary sanctions, and limiting a Party’s use of evidence at hearing. Any
Party has the right to have any hearing recorded by stenographic and video
means with such Party bearing the costs of the stenographer and videographer;
provided, however, that any other Party shall have to right to
obtain transcripts from the transcriber at such other Party’s own cost;
provided, further, however, that the Parties shall share
equally the cost of any transcript requested by the Arbitrators.
	 
	 	21.9.7.	 	The Arbitrators have the right to award or include in their award any relief
that they deem proper, including money damages (with interest on unpaid
amounts from the date due), specific performance, injunctive relief,
monetary sanctions, and attorneys’ fees and costs; provided, that
the Arbitrators shall have no power to award punitive damages or damages
inconsistent with this Agreement, and the Parties expressly waive their
right to obtain such damages in the Arbitration or in any other forum. In
no event shall the Arbitrators have any right, power, or authority to
change, alter, detract from, or add to the provisions of this Agreement, but
they shall have the power only to apply and interpret the provisions of this
Agreement. The Arbitrators may not consider any settlement discussions or
offers that might have been made by the either Party, whether or not made in
connection with a Dispute Negotiation or mediation. All aspects 




31









 






	 	 	 	of the
Arbitration (including the existence, content and result of the Arbitration)
shall be treated as Confidential Information. The Arbitrators’ decision
shall be final and binding upon both Parties. Each Party shall be
responsible for its own attorneys’ fees and costs, including filing fee and
final fee of the AAA, in connection with any such mediation or Arbitration,
subject to any award of attorneys’ fees and costs, and the Parties shall
share equally the costs of the mediator, the Arbitrators, the AAA (to the
extent in excess of filing and final fees), the mediation location, and the
Arbitration location.







	 	21.9.8.	 	The Arbitration award shall be a reasoned award, made within the time limits
imposed by R-41 of the AAA Rules; provided, however, that the Arbitrators may
extend the time limits of R-41 as they deem necessary. After the award is
received by the Parties and all time periods provided for in R-46 have expired,
one or both of the Parties may present the award to a court of competent
jurisdiction for confirmation. The court’s confirmation of the award shall be
governed by Section 9 of the Federal Arbitration Act (the “Act”), and
the grounds for the court to vacate, modify, or correct the award shall be
limited to the grounds articulated in Sections 10 and 11 of the Act.






	 	21.10.	 	Notices. Unless otherwise expressly provided herein, all communications, notices and
requests under this Agreement shall be in writing and shall be deemed received either
(i) one (1) business day after being deposited, all charges prepaid, with Federal
Express or other commercial delivery service that guarantees next business day delivery
and provides a written confirmation of delivery, or (ii) on the date of transmission,
if sent by facsimile (receipt confirmed) or email. The addresses, facsimile numbers
and email addresses for notice, unless changed by notice, are as follows:





	 	 	 

	If to Seller:

	 	Trinity Rail Group, LLC

2525 Stemmons Freeway

Dallas, TX 75207

Attn: Dale Hill

Fax: 214-589-8819

Email: Dale.Hill@trin.net
	 
	 	 
	If to Buyer:

	 	GATX Corporation

222 West Adams Street

Chicago, IL 60661

Attn: VP Fleet Management

Fax: (312) 499-7469

Email: vp-fpm@gatx.com







	 	 	 	For any notice relating to matters under Sections 8, 10.4, 11.3, 13, 14, 15, 16, 17,
18, 19 or 21 of this Agreement, copies of such notice shall also be delivered to the




32









 






	 	 	 	Parties’ respective legal counsel in the manner set forth above. The addresses,
facsimile numbers and email addresses for notices, unless changed by notice, are as
follows:





	 	 	 

	If to Seller:

	 	Trinity Industries, Inc.

2525 Stemmons Freeway

Dallas, TX 75207

Attn: Heather Randall

Fax: 214-589-8824

Email: Heather.Randall@trin.net
	 
	 	 
	If to Buyer:

	 	GATX Corporation 

222 West Adams Street 

Chicago, IL 60661

Attn: General Counsel

Fax: (312) 499-7274

Email: Deborah.Golden@gatx.com
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Latham & Watkins, LLP

233 S. Wacker Drive 

Suite 5800

Attn: Richard S. Meller 

Fax: (312) 993-9767

Email: Richard.Meller@lw.com







	 	21.11.	 	Counterparts. This Agreement may be executed in any number of counterparts
(including by means of facsimile or .PDF) each of which will be deemed an
original but all of such counterparts together shall constitute one and the same
instrument.
	 
	 	21.12.	 	Entire Agreement and Amendments. This Agreement, together with each Exhibit attached
hereto, and the other documents explicitly referenced herein contain the entire
agreement and understanding between the Parties with respect to the subject matter
hereof and, as of the execution hereof, supersedes all prior agreements,
understandings, and representations, whether oral or written, related to the subject
matter hereof, including that certain letter agreement, dated May 6, 2010, by and
between Buyer and Seller, and that certain Non-Disclosure Agreement, dated November 16,
2009, by and between Buyer and Seller, each of which are hereby terminated and shall be
of no further force and effect following the execution and delivery hereof, provided
that any confidential information disclosed under the Non-Disclosure Agreement dated
November 16, 2009 will also be deemed to be Confidential Information under this
Agreement. No amendment, modification, supplement, waiver, or release of any of the
terms and 




33









 






	 	 	 	conditions contained herein shall be made except by mutual agreement to that
effect in writing and signed by all Parties.







	 	21.13.	 	Survival. Regardless of the expiration or termination for any reason of this
Agreement, the rights and obligations set forth in this Agreement that require or
contemplate performance by a Party after such expiration or termination shall remain in
full force and effect to the extent required for their full observance and performance,
including, but not limited to, Sections 5.1.3, 5.2.4, 5.2.5, 7, 11.3, 12, 13, 14, 15,
16, 17, 20 and 21.
	 
	 	21.14.	 	Expenses. Except as otherwise expressly set forth in this Agreement, each Party will
bear all of its own costs and expenses incurred in negotiating and complying with such
Party’s obligations arising pursuant to this Agreement.
	 
	 	21.15.	 	No Agency Relationship. Nothing contained in this Agreement will create any agency,
fiduciary, joint venture, or partnership relationship between the Parties.
	 
	 	21.16.	 	No Third-Party Beneficiaries. This Agreement will not confer any rights or remedies
upon any Person other than the Parties.
	 
	 	21.17.	 	Headings. The Section headings contained in this Agreement are inserted for
convenience only and will not affect in any way the meaning or interpretation of this
Agreement.
	 
	 	21.18.	 	Construction. The Parties have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement will be construed as if drafted jointly by the Parties, and no
presumption or burden of proof will arise favoring or disfavoring any Party by virtue
of the authorship of any of the provisions of this Agreement.
Unless the context requires otherwise, singular includes plural and vice versa and
any gender includes every gender, and where any word or phrase is given a defined
meaning, any other grammatical form of that word or phrase will have a corresponding
meaning. The word “including” (and its variants, e.g. “includes”, “include”) will
mean “including without limitation” unless otherwise stated. Unless the context
requires otherwise, the words “hereof,” “herein,” “hereunder,” “hereby,” or words of
similar import refer to this Agreement as a whole and not to any particular Section,
subparagraph, clause or other subdivision hereof. The word “or” will be disjunctive
but not exclusive. Each reference to a Section herein is to a Section of this
Agreement. Each Schedule, Exhibit, and Annex attached hereto is incorporated herein
and made a part hereof as if fully set forth herein.





[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]









34









 








     IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the Effective Date.



	 	 	 	 	 
	 	GATX CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TRINITY RAIL GROUP, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature page to Supply Agreement]





 











 





Exhibit A

[*****]14




	 	 	 	 	 	 	 	 	 

	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	 

	 	 	 	 	 	[*****]	 	 
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
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	 	[*****]
	[*****]

	 	[*****]
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	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
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	 	[*****]
	[*****]

	 	[*****]
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	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
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	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
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	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
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	 	[*****]
	[*****]

	 	[*****]
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	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
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	 	[*****]
	[*****]

	 	[*****]
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	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
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	[*****]

	 	[*****]
	 	[*****]
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	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
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	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	 

	 	 	 	[*****]	 	 	 	 
	[*****]

	 	 	 	 	 	 	 	[*****]
	[*****]

	 	 	 	 	 	 	 	[*****]
	[*****]

	 	 	 	 	 	 	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	 	 	 	 	 	 	[*****]
	[*****]

	 	 	 	 	 	 	 	[*****]








 




			
	14	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




 









 










	 	 	 	 	 	 	 	 	 

	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]15

	 	 	 	 	 	 	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	 

	 	 	 	 	 	[*****]	 	 
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	 	 	 	 	 	 	[*****]
	[*****]

	 	 	 	 	 	 	 	[*****]
	[*****]

	 	 	 	 	 	 	 	[*****]
	 

	 	 	 	 	 	[*****]	 	 
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]








 




			
	15	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.






 









 








Exhibit B




[*****]16




	 	 	 	 	 	 	 	 	 

	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]








 




			
	16	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




 









 










Exhibit C

[*****]17




	 	 	 	 	 	 	 	 	 

	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
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	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
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	 	[*****]
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	[*****]

	 	[*****]
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	 	[*****]
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	 	[*****]
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	 	[*****]
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	 	[*****]
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	 	[*****]
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	 	[*****]
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	 	[*****]
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	[*****]

	 	[*****]
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	[*****]

	 	[*****]
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	[*****]

	 	[*****]
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	[*****]

	 	[*****]
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	[*****]

	 	[*****]
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	[*****]

	 	[*****]
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	[*****]

	 	[*****]
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	[*****]

	 	[*****]
	 	[*****]
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	[*****]

	 	[*****]
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	[*****]

	 	[*****]
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	[*****]

	 	[*****]
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	 	[*****]
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	 	[*****]
	[*****]

	 	[*****]
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	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]








 




			
	17	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




 









 










	 	 	 	 	 	 	 	 	 

	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]
	[*****]18

	 	[*****]
	 	[*****]
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	[*****]

	 	[*****]
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	 	[*****]
	 	[*****]
	[*****]

	 	[*****]
	 	[*****]
	 	[*****]
	 	[*****]








 




			
	18	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




 









 










Exhibit D




[*****]19




	 	 	 	 	 

	[*****]
	 	 	 	 
	[*****]
	 	 	 	 
	[*****]
	 	 	 	 
	[*****]
	 	 	 	 
	[*****]
	 	 	 	 
	[*****]
	 	 	 	 








 




			
	19	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




 









 










Exhibit E




Order Form



RAILCAR ORDER FORM




To:

Company:

Telephone:

Order Date:

GATX CPP/BO#:




Car Type(s):




Quantity:




Alternates:




New Buyer-Supplied Components:




Non-New Buyer-Supplied Components:




Price:




Terms and Conditions: This Order Form is subject to the terms and conditions of the Supply
Agreement dated March 14, 2011.




Executed by:




GATX Corporation



By: Name: _________________________________



Title: ____________________________



Signature: ______________________________





 











 





Exhibit F




Form of Certificate of Acceptance



CERTIFICATE OF ACCEPTANCE



	 	 	 

	GATX PO 

NUMBER
	 	SELLER’S JOB

NUMBER






RAILCAR DESCRIPTION



In accordance with the Supply Agreement (“Agreement”) between GATX Corporation (“Buyer”) and Trinity Rail
Group, LLC (“Seller”), dated March 14, 2011, the undersigned hereby certifies that on the date of this
Certificate the following Railcars were accepted by the Buyer in accordance with the Agreement. The execution
of this Certificate of Acceptance shall not relieve the Seller of any of its obligations under the Agreement
nor shall it constitute a waiver by the Buyer with respect to any of its rights and remedies under the
Agreement.




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	DATE	 	 	 	 
	 	 	 	 	 	 	AVAILABLE	 	 	 	 
	 	 	 	 	 	 	FOR	 	 	 	 
	 	 	 	 	 	 	INSPECTION	 	 	 	 
	 	 	LIGHT	 	 	 	OR RE-	 	DATE	 	 
	CAR NUMBER	 	WEIGHT	 	GALLONS	 	INSPECTION	 	ACCEPTED	 	BO#
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 





	 	 	 

	 
Accepted
Today:

	 	Cumulative Accepted
by BO#:






 









 






Exhibit G




Third Party Review


1. General.





(a) Pursuant to Section 7 of the Agreement between Buyer and Seller dated March 14, 2011,
upon written notice to Seller, Buyer may initiate a Third Party Review with respect to the
matters set forth in Section 6 of this Exhibit G.




(b) Buyer may initiate a Third Party Review after the first Order Year of this Agreement.
Thereafter, Buyer may request [*****].20




(c) [*****]:




(i) [*****].




(ii) [*****].




(iii) [*****].




(iv) [*****].


2. Selection of Third Party Reviewer. Within 30 days after Buyer’s notice to undertake a Third
Party Review, Buyer will appoint a reputable accounting firm to conduct the Third Party Review,
subject to Seller’s consent, such consent not to be unreasonably withheld or delayed (the
“Reviewer”), to the extent that such Reviewer does not have ethical conflicts given their
then-current or past dealings with either Party. Seller agrees that [*****] is an acceptable
Reviewer as of the Effective Date.



3. Confidentiality. The Parties agree that the Seller may require the Reviewer to enter into and
be bound by a confidentiality agreement in the form attached hereto as Schedule 1 to this Exhibit G
(the “Reviewer Confidentiality Agreement”). Buyer acknowledges that all information the
Reviewer receives from Seller will be considered “Evaluation Material” as set forth in the Reviewer
Confidentiality Agreement and, except to the extent otherwise provided under this Exhibit G or the
Reviewer Confidentiality Agreement, the Reviewer will be prohibited from disclosing any of such
Evaluation Material, whether in writing or orally, to Buyer or any other Person (other than to
Reviewer’s employees who need to know such information for purposes of the Third Party Review and
who the Reviewer shall cause to comply with the provisions of the Reviewer Confidentiality
Agreement) or using such Evaluation Material other than for purposes of its Third Party Review.
The Parties agree that the Reviewer may disclose such Evaluation Material if (but only to the
extent) required by applicable law or regulation, including any subpoena or other similar form of
process; provided, that the Reviewer will provide, unless prohibited by law, Seller with prompt
notice of any request that they disclose






 




			
	20	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission.
Confidential treatment
has been requested with respect to the omitted portions.




 









 









Seller’s Evaluation Material so that Seller may object to the request and/or seek an appropriate
protective order.



4. Recordkeeping; Access.





(a) During the Term of this Agreement and continuing thereafter for the longer of
[*****]21 or the period necessary to (i) resolve any pending Dispute or (ii)
complete any Third Party Review authorized under the Agreement, Seller shall maintain a
[*****] (collectively, the “Seller Records”).




(b) Seller will provide the Reviewer with access to the Seller Records and Seller’s
personnel, accountants, and any other information that is reasonably necessary to perform a
Third Party Review and for the Reviewer to prepare and issue the Report (as defined in
Section 7 of this Exhibit G). The Third Party Review will take place at Seller’s place
of business in Dallas, Texas and the Reviewer will not be permitted to (i) remove any of
the books, records, and information provided by Seller to the Reviewer from Seller’s place
of business or (ii) copy such books, records, or information for any purpose. The
Reviewer may keep its working papers, reports and copies of information obtained from Seller
and/or Buyer in connection with the Third Party Review to comply with applicable law,
statute, rule, regulation, or professional standards promulgated by AICPA. Any such
information so kept shall be retained in accordance with the terms of the Reviewer
Confidentiality Agreement.


5. Conduct of Review. All Third Party Reviews will be performed during Seller’s normal business
hours and in a manner so as not to unreasonably interfere with Seller’s operations and personnel.
Reviewer and Seller will cooperate with each other as necessary for Reviewer to perform the Third
Party Review in an expeditious and efficient manner. Reviewer’s onsite access to Seller’s place of
business will be limited to a maximum of [*****] per Third Party Review performed hereunder;
provided, that Seller promptly responds to Reviewer’s reasonable requests for access and
information necessary to perform the Third Party Review.



6. Scope of Third Party Review.





(a) In connection with the Third Party Review, the Reviewer shall review Seller’s
Records to determine whether there were any discrepancies between [*****].




(b) In addition to its obligations set forth in Section 4 of this Exhibit G, Seller will, at
a minimum, prepare and deliver to the Reviewer, within thirty (30) days of its receipt of
notice that Buyer has elected to initiate a Third Party Review, the following information:




(i) A “Price Calculation List” for each Order of a Railcar listed on Exhibit
A to the Agreement for which Buyer received an invoice. The Price Calculation List
shall consist of [*****].





 




			
	21	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission.
Confidential treatment
has been requested with respect to the omitted portions.




 









 











(ii) [*****].22




(iii) [*****].




(c) [*****].


7. Report.





(a) The Reviewer shall prepare a written report (the “Report”) [*****]:




(i) [*****]




(ii) [*****]




(b) [*****].




(c) [*****].


8. Settlement Procedures.





(a) If the Report discloses any discrepancies (whether related to Seller’s [*****], or
otherwise), Buyer may, at its option, request in writing a refund or credit for such
discrepancies, which shall include a description of the basis for Buyer’s request
founded upon the Report.




(b) Seller shall have thirty (30) days from its receipt of Buyer’s request to respond. If
Seller does not respond by the end of such thirty (30) day period or if Seller concurs with
any or all of the Reviewer’s findings, it shall issue a refund or credit to Buyer within ten
(10) business days in the full amount of Buyer’s request, unless Seller disputes a portion
of the Reviewer’s findings, in which case it shall issue a refund or credit to Buyer in the
amount that is not disputed by Seller.




(c) If Seller disputes any or all of the Reviewer’s findings, the Parties shall promptly
discuss the Reviewer’s findings under dispute and attempt to reach a settlement. If the
Parties reach a settlement on any or all of the disputed findings, Seller shall issue a
refund or credit to Buyer within ten (10) business days in the agreed amount. If the
Parties cannot reach a settlement on the remaining disputed findings within sixty (60) days
from the date of Buyer’s request for a refund or credit, Buyer may pursue such dispute under
the dispute resolution provisions set forth in Section 21.9 of the Agreement.


9. Buyer’s Access to the Report. Buyer shall be permitted to retain copies of the Report.
Notwithstanding anything to the contrary contained in this Agreement, Buyer may utilize and
disclose the Report in connection with any Dispute.






 




			
	22	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission.
Confidential treatment
has been requested with respect to the omitted portions.




 









 









10. Review Cost. Buyer shall be solely responsible for all of its costs related to the Third Party
Review and the costs of the Reviewer.






 









 








Schedule 1 to Exhibit G




Reviewer Confidentiality Agreement



CONFIDENTIALITY AGREEMENT



     This Confidentiality Agreement (this “Agreement”) is between Trinity Rail Group, LLC,
2525 Stemmons Freeway, Dallas, TX 75207 (“TRail”), and _____________________ a
____________________ with offices at __________________ (“Reviewer”). Reviewer and TRail
are sometimes referred to herein as individually as a “Party” and collectively as the
“Parties”.



     WHEREAS, Reviewer has been engaged by GATX Corporation (“GATX”) to perform certain
“Third Party Review” services (the “Services”) as provided for in that certain Supply
Agreement, by and between GATX and TRail, dated March 14, 2011 (the “Supply Agreement”);
and



     WHEREAS, TRail is agreeable to Reviewer’s performance of the Services subject to the terms and
conditions of this Agreement;



     NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties
hereby agree as follows:




	 	1.	 	Evaluation Material. “Evaluation Material” shall consist of any and
all disclosures by TRail to Reviewer with respect to Reviewer’s performance of the
Services.
	 
	 	 	 	Notwithstanding the foregoing, Evaluation Material shall not include any information that:






	 	a.	 	is or becomes publicly available other than by a breach of this
Agreement by Reviewer;
	 
	 	b.	 	is acquired by Reviewer from a third party that is not, to Reviewer’s
knowledge, under any confidentiality obligation to TRail regarding such
information;
	 
	 	c.	 	is developed independently by Reviewer or GATX without reference to the
Evaluation Material; or
	 
	 	d.	 	is disclosed by TRail to any person or entity free of confidentiality
obligations to TRail.






	 	2.	 	Disclosure to GATX. Reviewer agrees not to disclose Evaluation Material to
GATX or GATX’s other representatives without TRail’s prior written consent. TRail agrees
that: Reviewer may (i) disclose to GATX the report containing the information described in




 









 






	 	 	 	Section 7(a) of Exhibit G to the Supply Agreement (“Exhibit G”) (the
“Report”), and (ii) may conduct general discussions with GATX and GATX’s
representatives regarding the overall scope or progress in the performance of the Services;
provided, that with respect to (ii) above, such disclosures or general discussions
do not include any Evaluation Material. Prior to disclosing any draft or final Report to
GATX, Reviewer will provide such Report to TRail to review. If TRail determines that such
Report needs to be redacted to avoid disclosure of Evaluation Material in accordance with
Section 7 of Exhibit G, Reviewer will redact the Reports in accordance with TRail’s
instructions. After any version of the Report has been redacted, TRail will provide its
consent for Reviewer to disclose the Report to GATX, which consent shall include an
acknowledgement that Reviewer has complied with the requirements of this Agreement.






	 	3.	 	Responsibility. Except for Reviewer’s obligations of confidentiality and
restricted use expressly set forth herein, Reviewer has no obligation towards TRail in
relation to the Services and TRail has no obligation to Reviewer.
	 
	 	4.	 	Confidentiality and Use. Subject to Section 2 of this Agreement, Reviewer
agrees to keep confidential the Evaluation Material and shall disclose such information
only to its agents and those personnel at Reviewer and its agents who have a need to know
such information for performance of the Services, and shall use such Evaluation Material
solely for the purpose of performing its Services. Reviewer will be responsible for any
breach of this Agreement by its personnel and Reviewer’s agents and any employee of
Reviewer’s agents.
	 
	 	5.	 	Disclosure Required by Law. Notwithstanding anything to the contrary in this
Agreement, Reviewer may disclose Evaluation Material that Reviewer is advised by legal
counsel that such disclosure is required or compelled by law, statute, rule, or regulation,
including any subpoena or other legal process, but only to the extent such law, statute,
rule, or regulation, subpoena, or other legal process requires disclosure. To the extent
reasonably possible, Reviewer will provide TRail with prompt notice of any request that
Reviewer has been advised to disclose Evaluation Material (so long as such notice is not
prohibited by such law, statute, rule, or regulation, subpoena or other legal process), so
that TRail may have the opportunity to object to the request and/or seek an appropriate
protective order. If TRail is unable to obtain or does not timely seek a protective order
and Reviewer is legally requested or required to disclose such Evaluation Material,
disclosure of such Evaluation Material may be made by Reviewer without liability.
	 
	 	6.	 	Return of Information. Reviewer shall, upon TRail’s written request, return to
TRail or destroy all Evaluation Material in its possession; provided,
however, that Reviewer may keep its working papers, reports and copies of
information solely and specifically to comply with applicable law, statute, rule,
regulation or professional standards promulgated by the AICPA or other regulatory body with
jurisdiction. In addition, Reviewer may keep a copy of Evaluation Material that shall be
retained in accordance with the terms of this Agreement, notwithstanding the conclusion of
the Services, this Agreement, or the Supply Agreement.




 









 












	 	7.	 	Remedies. Reviewer recognizes the confidential and proprietary nature of the
Evaluation Material and acknowledges that, in the event it is determined by a court that a
breach of the confidentiality provisions of this Agreement has occurred or is likely to
occur, TRail will suffer irreparable harm. Accordingly, TRail shall be entitled to seek
preliminary and permanent injunctive relief in the event of a breach or threatened breach
of this Agreement, as well as all other applicable remedies at law or equity, including but
not limited to injunction or specific performance.
	 
	 	8.	 	Term. Other than as expressed in Section 6 above, Reviewer’s confidentiality
obligations under this Agreement will terminate five (5) years from the last date that the
Services are performed.
	 
	 	9.	 	Governing Law. This Agreement shall be governed and construed pursuant to the
laws of the State of Delaware, without giving effect to its conflict-of-laws principles.
	 
	 	10.	 	Agreement. This Agreement constitutes the only agreement between TRail and
Reviewer regarding the Evaluation Material and its disclosure and use with respect to the
Services.
	 
	 	11.	 	Modification. This Agreement may not be modified, altered, or amended except
in a writing signed by the Parties.
	 
	 	12.	 	Counterparts. This Agreement may be executed in any number of counterparts
(including by means of facsimile or .PDF) each of which will be deemed an original but all
of such counterparts together shall constitute one and the same instrument.




IN WITNESS WHEREOF, the Parties have signed this Agreement as of the _____day of _______________,
20_.




	 	 	 	 	 
	TRINITY RAIL GROUP, LLC

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



	 	 	 	 	 
	[NAME OF REVIEWER]

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



 









 








Exhibit H




Form of Bill of Sale




     THIS BILL OF SALE is made and effective this _____ day of ________________, 20___ by
TRINITY RAIL GROUP, LLC (“Seller”) to GATX CORPORATION (“Buyer”).



WITNESSETH:




     FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10) and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, Seller bargains, grants, sells,
conveys, and transfer to Buyer all of Seller’s right, title and interest in and to those railcars
listed on Schedule A attached hereto (the “Cars”), to have and to hold the same, together with
appurtenances and privileges thereunto belonging or appertaining, for the benefit of Buyer, its
successors and assigns, forever.



     Seller hereby makes such representations and gives such warranties with respect to the Cars as
set forth in the Supply Agreement between Buyer and Seller dated March 14, 2011 (the “Agreement”).
EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, THE WARRANTIES IN THE AGREEMENT ARE EXCLUSIVE AND
ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF
TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE.



     IN WITNESS WHEREOF, this Bill of Sale has been executed and delivered effective as of the day
and year first written above.



	 	 	 	 	 
	 	TRINITY RAIL GROUP, LLC

 	 
	 	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



SCHEDULE A

TO BILL OF SALE





	I.	 	Invoice No.
	 
	II.	 	Car Type:
	 
	III.	 	Quantity of Cars:
	 
	IV.	 	Car Marks:
	 
	V.	 	Running Numbers:




 









 








Exhibit I




Records



	 	 	 	 	 
	 	 	 	 	Required for
	DOCUMENT TYPE	 	FORMAT REQUIRED	 	New Built Railcar
	Certificate of Construction


Car Specification Sheet — to include

Builder file number (BO#)

Drawings- including but not limited to:

 





    1. Arrangement 

    2. Assembly 

    3. Part 

    4. Calculation 



Drawing List 




Tank Volume Gage tables 



Bill of Materials — to include Builder
file number, ie: BO#


Specialty List of additional vendor
components used to build the car. To
include lot and model number for: 


    1. Trucks 

    2. Couplers 

    3. Brakes 

    4. Running Gear 


Photograph — To include one full side
and A & B end views. 

Exhibit R-1 and Exhibit R-2 reports,
if any, describing modifications or
repairs
Form SS-1, SS-2, or SS-3, for stub
sill Railcars only. 

Miscellaneous Documentation — includes
Repair History, COT, HM201, R88B and
Ulmer data , etc...

	 	TIF Image Group 4
compressed, or
Adobe
 PDF

Microsoft Word or
Excel 97, or TIF
Image
 Group 4
compressed, or
Adobe PDF
One drawing per
file in either TIF
Image Group 4
compressed, rotated
in a viewable
position, or
AutoCAD (*.dwg or
*.dxf drawing
files), or Adobe
PDF files.
Electronic drawing
files names to
include drawing
number, sheet and
revision.



**Paper drawings
will only be
accepted for
acquired fleets
when no electronic
drawings are
available. 


HTML, Microsoft
Excel 97 or Plain
Text (*.txt) file
with entries that
include the drawing
number, sheet,
revision and
drawing title.

Excel 97, or TIF
Image Group 4
compressed, or
Adobe PDF, with per
inch volume
readings. 

HTML, Microsoft
Word or Excel 97,
or TIF Image Group
4 compressed, or
Adobe PDF file of
the entire BOM.

HTML, Microsoft
Excel 97 or Plain
Text (*.txt) file
of the entire
Specialty list to
include vendor
name, component
name, component
model number,
component lot
number. 

Any drawings to
follow drawing
requirements above.

 

Digital high
resolution color
photograph or 8x10
color print. 

TIF Image Group 4
compressed, or
Adobe PDF 

TIF Image Group 4
compressed, or
Adobe PDF 

TIF Image Group 4
compressed, or
Adobe PDF
	 	Yes


Yes 


All upper level
arrangement and
assembly drawings
used to build the
Railcar, in
electronic format.
Seller will provide
Buyer with
reasonable access
to, but not copies
of, parts drawings. 








yes 




yes 



yes 



yes









yes 


no 


no 


no






 










 






RECORDS REQUIREMENTS:





	 	1.	 	All data listed herein for new built Railcars is to be in
electronic format unless otherwise agreed to by Buyer.
	 
	 	2.	 	All electronic Railcar data outlined in this Exhibit will be compiled
onto a data CD with all data placed into a folder that carries the name of Document
Type listed above, i.e., Drawings, Photos, etc. A sample CD detailing all folders
and document formats is available upon request from GATX Rail Engineering. This is
a sample of the typical CD contents and folder names.
	 
	 	3.	 	The CD will be presented to Buyer as the close-out package for new
built Railcars.
	 
	 	4.	 	The foregoing Records requirements and electronic Railcar data is
subject to change from time to time in accordance with Buyer’s Fleet Maintenance
Instruction (FM: 0876-0002-000) and Seller’s acceptance of those changes.






 











 





Exhibit J




Confidentiality Agreement



	 	 	 	 	 
	__________________,



                              Claimant,



                  v.


__________________,




                              Respondent. 


	 	§

§

§

§

§

§

§

§

§

§

§
	 	AMERICAN ARBITRATION

ASSOCIATION CASE NO.


_______________






CONFIDENTIALITY AGREEMENT AND AGREED PROTECTIVE ORDER




     The parties to this arbitration (the “Parties”), Claimant ______________ (“Claimant” or
“Party”) and Respondent _____________________ (“Respondent” or “Party”) enter into this
Confidentiality Agreement and Agreed Protective Order (“Agreement”) as follows:



     1. The term “Discovery Material” shall mean all information, tangible items, electronic
material and documents produced by any Party or non-party in response to discovery in the
arbitration proceeding, _______________________, AAA Case No. ________________ (the
“Arbitration”). For purposes of this Agreement, “Discovery Material” shall also include any
affidavit, motion, memorandum, pleading, image, or other material presented to the arbitration
panel that discloses Discovery Material designated “Confidential” and retaining its confidential
designation. This Agreement shall govern the handling of all such Discovery Material.



     2. The term “Confidential Discovery Material” shall refer to all Discovery Material which has
been designated by the producing Party (the “Producing Party”) as “Confidential” because such
Discovery Material contains Confidential Information. “Confidential Discovery Material” shall
also include Discovery Material designated by the Producing Party as “Confidential — Attorney
Eyes Only.” In designating information as “Confidential — Attorney Eyes Only,” the Producing
Party will make such a designation only as to that information that it



 









 




believes contains highly sensitive business or technical information of the producing or
designation Party. The “Confidential — Attorney Eyes Only” category is more fully explained in
paragraph 15 below, but is identified here as being part of “Confidential Discovery Material.”
For purposes of this Agreement, “Party” shall include each Party’s respective affiliates defined
as any person or entity (or sub-unit of any entity) that, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control with a Party.
“Confidential Information” is information in the possession of, prepared by, compiled by, or that
is used by a Party and (1) is proprietary to or about, or created by a Party; (2) gives a Party
some competitive business advantage, the opportunity of obtaining such advantage, disclosure of
which would be detrimental to the interest of the Party or contains business planning information;
or (3) is not typically disclosed by a Party, or known by persons who are not employed by a Party
or are not independent contractors of a Party. Confidential Information is also information
regarding former and current employees, officers, and independent contractors of a Party,
including information regarding their employment and/or termination therefrom, performance and
compensation. Confidential Information shall also include information pertaining to past,
current, and potential transactions engaged in or considered by a Party. Confidential Information
shall also include any information pertaining to current, former, and prospective customers of a
Party. Confidential Information shall also include any financial statements as to a Party to the
extent that such information has not already been publicly disclosed. Confidential Information
shall also include any other information that is “Confidential Information” under Section 21.4 of
the Supply Agreement dated March 14, 2011 between Claimant and Respondent (the “Supply
Agreement”).




     3. No Discovery Material designated as “Confidential” or “Confidential — Attorney Eyes Only”
hereunder or any copy, image, excerpt, or summary thereof shall be delivered or disclosed to any
person except as hereafter provided. The contents of any such Confidential Discovery Material
shall not be revealed except to persons authorized hereunder and except as so provided. This
Agreement does not apply to information furnished by Parties or non-parties



 









 




that (i) the Receiving Party (as defined below) can demonstrate was in its possession prior
to being disclosed by the Producing Party hereunder and the source of the information was not
under an obligation of confidentiality to the Producing Party; (ii) is now, or hereafter becomes,
through no act or failure to act on the part of the Receiving Party, generally known to the
public; (iii) is rightfully obtained from a Third Party not bound under an obligation of
confidentiality to the Producing Party; or (iv) is independently developed by the Receiving Party
without reference to or use of any Confidential Information.




     4. All Confidential Discovery Material produced in the Arbitration shall be used only for
the prosecution and/or defense of the Arbitration, and any person in possession of Confidential
Discovery Material shall maintain those materials in a reasonably secure manner so as to avoid
disclosure of their contents and in a manner no less secure than that used to protect its own
information of similar sensitivity or importance.



     5. Unless otherwise provided herein, the “Confidential” designation set forth in this
Agreement must be made at or prior to the time of production of documents by, to the extent
possible, stamping the word “Confidential” on the first page of the Discovery Materials to be
deemed Confidential. Information provided in electronic format, to the extent possible, should be
designated as “Confidential” by correspondence between counsel. Discovery Material produced prior
to entry of this Agreement may be designated as “Confidential” by referencing the Bates-label of
such information in correspondence between counsel or, if the material contains no Bates-label, by
describing the information in correspondence between counsel. Discovery Material in the form of
testimony in deposition or otherwise may be designated as “Confidential” by counsel so stating on
the record at the time of such testimony or in correspondence between counsel delivered within
thirty (30) days after a transcript containing such testimony is delivered to the Parties. All
testimony shall be treated as Confidential until the expiration of thirty (30) days after a
transcript containing such testimony is delivered to the Parties and thereafter only such testimony
designated as Confidential in accordance with the foregoing shall be treated as Confidential.



 









 





     6. The inadvertent or unintentional production of discovery containing Confidential
Information that is not designated as Confidential Discovery Material at the time of the production
or disclosure shall not be deemed a waiver in whole or in part of a Party’s claim of
confidentiality, either as to the specific discovery produced or as to any other discovery relating
thereto or on the same related subject matter. Documents containing Confidential Information
inadvertently or unintentionally produced without being designated as Confidential Discovery
Material may be retroactively designated by notice in writing of the designated class of each
document by Bates number or other adequate description and shall be treated appropriately from the
date written notice of the designation is provided to the Receiving Party. To the extent that,
prior to such notice, a Party receiving the document or information may have disclosed it to others
outside the parameters of this Agreement, the Party shall not be deemed to have violated this
Agreement, but the Party shall cooperate with the designating Party’s effort to retrieve any
document or information promptly from such person and to limit any further disclosure pursuant to
this Agreement.



     7. A Party who has received Discovery Material (the “Receiving Party”) that is
designated as “Confidential” and who objects to the designation of any Discovery Material as
Confidential Discovery Material, shall notify counsel for the Producing Party in writing of its
objection. The Producing Party and the objecting Receiving Party shall attempt to resolve all
objections by agreement. If any objections cannot be resolved by agreement, the Receiving Party
shall have fourteen (14) business days from the time in which the Receiving Party delivers its
written objection to apply to the arbitration panel for a determination as to whether the
Confidential designation is appropriate. Until an objection has been resolved by agreement of
counsel or by order of the arbitration panel, the Discovery Material shall be treated as
Confidential Discovery Material subject to this Agreement. In the event that a Receiving Party
fails to apply to the arbitration panel for a determination as to whether the Confidential
designation is appropriate within fourteen (14) business days of delivery of the written objection,
the Discovery Material to which the Receiving Party objected shall be treated as Confidential



 









 







Discovery Material. The burden of proof in any proceeding regarding whether the designation
of any document as “Confidential” is appropriate is at all times on the Party designating the
document as “Confidential.”



     8. No Receiving Party shall disclose, summarize, describe, characterize, or otherwise
communicate Confidential Discovery Material except as permitted by this Agreement. Confidential
Discovery Material shall not be disclosed, summarized, described, characterized, or otherwise
communicated in any way to anyone except:




	 	a.	 	The arbitration panel, all arbitration personnel (including all
court reporters employed in connection with this action) and all mediators;
	 
	 	b.	 	Counsel of record in this action, and attorneys, paralegals,
and other persons employed or retained by such counsel who are assisting in the
conduct of this action;
	 
	 	c.	 	Employees of the Parties or their Affiliates;
	 
	 	d.	 	Actual and potential witnesses and deponents (and their counsel);
	 
	 	e.	 	Experts, consultants and/or litigation support personnel (and
employees of such experts or consultants) who are not employees of any Party and
who are retained or consulted for the purpose of being retained by any Party in
connection with this action;
	 
	 	f.	 	Any other person upon order of the arbitration panel or upon all
Parties’ written agreement; and
	 
	 	g.	 	Any person who was either an original author or recipient of a
document containing or constituting the Confidential Discovery Material.




All persons to whom Confidential Discovery Material is disclosed pursuant to Paragraphs 8 (c)-(g)
above shall, prior to disclosure: (i) be advised that the Discovery Material is being disclosed
pursuant to and subject to the terms of this Agreement and may not be disclosed other than
pursuant to the terms hereof; and (ii) expressly agree to be bound by the terms of the Agreement.
Execution of an Acknowledgement in the form attached hereto as Exhibit J-1 shall evidence such
notification and agreement.







 









 








     9. All pleadings, including appendices that attach Confidential Discovery Material as
evidence and are presented to the arbitration panel shall be delivered in sealed envelopes marked
with the style and number of this action.



     10. Nothing in this Agreement will be construed as limiting the Parties’ right to object to
any discovery or to object to the authenticity or admissibility of any evidence.



     11. This Agreement will continue to be binding throughout and after the final disposition of
this action. Within ninety (90) days after receiving notice of the entry of an award, order,
judgment or decree finally disposing of this action, all persons having received Confidential
Discovery Material will either return all Confidential Discovery Material and any copies thereof
(including summaries and excerpts) to the opposing Party or its attorney or destroy all such
Confidential Discovery Material and certify in writing to the opposing Party and its attorney to
that fact. With regard to electronic copies of Confidential Discovery Material, there is no
obligation to return or destroy copies that are not reasonably accessible because of undue burden
or cost.



     12. This Agreement shall not be construed to affect in any way the use, presentation,
introduction, or admissibility of any document, testimony, or other evidence at a deposition,
trial, or hearing in this arbitration; provided that any Party may ask the arbitration panel to
hold any proceeding in this action in camera on the grounds that such proceeding will involve or
relate to Confidential Discovery Material.



     13. Nothing in this Agreement shall operate to require the production of documents, testimony,
and other materials and information that are privileged or otherwise protected from discovery.



     14. If any Party to this Agreement (a) is subpoenaed in another action, or (b) is served with
a demand in another action to which he or it is a Party, or (c) is served with any other legal
process by one not a party to this litigation seeking Confidential Discovery Material, the
Receiving Party shall give written notice to the Producing Party of such subpoena, demand, or legal
process within five (5) business days of receipt, and shall not produce any Discovery



 









 




Material, unless Court-ordered, for a period of at least ten (10) business days after
providing the required notice to Producing Party. If, within ten business (10) days of receiving
such notice, the Producing Party gives notice to the Receiving Party that the Producing Party
opposes production of its Confidential Discovery Material, the Receiving Party shall not thereafter
produce such Confidential Discovery Material except pursuant to a Court order requiring compliance
with the subpoena, demand, or other legal process. The Producing Party shall be solely responsible
for asserting any objection to the requested production. Nothing herein shall be construed as
requiring the Receiving Party to challenge or appeal any order requiring production of Confidential
Discovery Material covered by this Agreement, or to subject himself or itself to any penalties for
compliance with any legal process or order, or to seek any relief from the arbitration panel.
Nothing herein shall prohibit the Receiving Party from producing Confidential Discovery Material to
any law enforcement or governmental agency which is within the scope of such agency’s request and
after providing at least five (5) business days’ notice to the Producing Party and after providing
the Producing Party a reasonable opportunity to object to such production, provided that the
production of any Confidential Discovery Material shall be at the Producing Party’s cost and
expense.




     15. The Receiving Party may not disclose, summarize, describe, characterize, or otherwise
communicate documents or information designated as “Confidential — Attorney Eyes Only” to any
persons other than those identified in paragraphs 8(a), 8(b) and 8(e), who are the only persons
allowed to review such material. This category of documents is reserved for a very select group of
documents and information and may only be used for that group of documents that have not been
disclosed to the public and that, if disclosed to the public, may cause irreparable harm or damage
to a Party. The procedures for designating documents (paragraph 5), objecting to any designation
(paragraph 7), designating deposition testimony as confidential (paragraphs 1 and 5) and filing
“Confidential Materials” under seal (paragraph 9), shall apply to documents designated
“Confidential — Attorneys Eyes Only.” Likewise, the duties and responsibilities the Parties have
to agree to permit retroactive designation (paragraph 6), to



 









 




notify the other Party of a subpoena or order (paragraph 14) and to return or destroy
documents (paragraph 11) shall apply to documents designated as “Confidential — Attorney Eyes
Only.”




     16. The rights and obligations of the Parties to this Agreement are in addition to and not in
lieu of the rights and obligations of the Parties pursuant to the Supply Agreement, including,
without limitation, Section 21.4 thereof, which shall remain in full force and effect in accordance
with the terms thereof.


The provisions of this Agreement may be modified only upon written agreement of the Parties.




	 	 	 

	AGREED:
	 	 
	 
	 	 
	Claimant 


	 	 
	 
	 	 
	 


	 	 
	By: 


	 	 
	 
	 	 
	Respondent 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	By: 


	 	 
	 
	 	 
	 
	 	 





 









 






Exhibit J-1




Acknowledgement




	1.	 	My name is
_______________________________________________.
I live at                                                     .
	 
	2.	 	I am aware that the Confidentiality Agreement and Agreed Protective Order (the “Agreement
and Order”) have been entered in the Arbitration styled: ________________________, AAA
Case No. __________________ and a copy of the Agreement and Order has been given to me.
	 
	3.	 	I agree and promise that any documents, information, materials, or testimony, which are
protected under the Agreement and Order entered in this case and designated as “Confidential
Discovery Materials” will be used by me only in connection with the above-captioned matter.
	 
	4.	 	I agree and promise that I will not disclose or discuss such protected materials with any
person other than those individuals permitted by the Agreement and Order to review such
materials.
	 
	5.	 	I understand and agree that any use of such confidential documents, information, materials,
or testimony obtained by me (or any portions or summaries thereof) in any manner contrary to
the provisions of the Agreement and Order may cause damage to one or more of the Parties to
the Arbitration and that I may be held responsible in a court of law for causing such damage.





	 	 	 	 	 

	 
	 	 	 	 
	 

	 	 

Signature
	 	 
	 
	 	 	 	 
	 

	 	Printed Name: 

	 	 





SWORN TO AND SUBSCRIBED BEFORE ME this _________ day of ____________, 20___.




	 	 	 	 	 

	 

	 	 

NOTARY PUBLIC, STATE OF              .
	 	  
	 
	 	 	 	 
	 

	 	 

Notary’s Printed name
	 	 
	 
	 	 	 	 
	 

	 	My
Commission Expires:
                     
	 	 






 









 






Exhibit K — Default Order Instructions




(I) Default Scheduled Car Order Instructions




     In the event that Buyer fails to place one or more Orders for all or any portion of the
Scheduled Cars necessary to meet the Annual Order Quantity and/or a Monthly Order Quantity, as the
case may be, by the applicable deadline, Seller shall Order on Buyer’s behalf the number of
Railcars necessary to fulfill such Annual Order Quantity and/or a Monthly Order Quantity, as the
case may be, by the applicable deadline. All of such Railcars shall be the following Railcar Type:


Railcar Type — [*****]23

Seller Specification No. [*****]

Gross Rail Load — [*****]

Typical Commodity — [*****]

Car Class — [*****]




(II) Default Unscheduled Car Order Instructions




     In the event that Buyer fails to place one or more Orders for all or any portion of the
Unscheduled Cars required to be Ordered during an Order Year by the first day of the last month of
such Order Year, Seller shall Order on Buyer’s behalf the number of Railcars necessary to fulfill
the Unscheduled Car requirement for such Order Year. All of such Railcars shall be the following
Railcar Type:


Railcar Type — [*****] Seller Specification No. — [*****]

Gross Rail Load — [*****]

Typical Commodity — [*****]

Car Class — [*****]






 




			
	23	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.




 









 










Exhibit L




Form of Seller’s Order Confirmation



	 	 	 	 	 

	[Date]
	 	 	 	 
	 
	 	 	 	 
	[Customer]

[Address]
	 	 	 	 
	 
	 	 	 	 
	Description of Railcar Types:
	 	 	 	 
	 
	 	 	 	 
	Railcar Type — Quantity:
	 	 	 	 
	 
	 	 	 	 
	Estimated Base Sales Price (per Railcar):
	 	$	 	 
	 
	 	 	 	 
	Estimated Scrap Surcharges (Included in Price):
	 	$	 	 
	 
	 	 	 	 
	Alternates:
	 	 	 	 
	1.
	 	 	 	 
	2.
	 	 	 	 
	Total — Alternates:
	 	$	 	 
	 
	 	 	 	 
	Seller’s Order Confirmation Price:
	 	$	 	 





The Seller’s Order Confirmation Price is subject to adjustment in accordance with the terms and
conditions of the Supply Agreement dated March 14, 2011.



Delivery: Commencing ______________








 









 








Exhibit M

Form of Invoice












 









 








Exhibit N

Initial Order(s) Delivery Schedule



The Ordered Railcars in the Initial Order(s) shall be Delivered in the quantities and during the
months set forth below:





	(i)	 	[*****]24






	 	•	 	[*****]
	 
	 	•	 	[*****]
	 
	 	•	 	[*****]
	 
	 	•	 	[*****]
	 
	 	•	 	[*****]






	(ii)	 	[*****]






	 	•	 	[*****]
	 
	 	•	 	[*****]
	 
	 	•	 	[*****]







 




			
	24	 	[*****] Certain information on this page has
been omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.