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Section 1: 8-K (8-K)


UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported):
October 31, 2018

Trinity Industries, Inc.


(Exact name of registrant as specified in its charter)


Delaware
 
1-6903
 
75-0225040
(State or other jurisdiction of incorporation
 
(Commission File No.)
 
(I.R.S. Employer Identification No.)

2525 N. Stemmons Freeway,
Dallas, Texas
     
75207-2401
(Address of principal executive offices)
      (Zip Code)

Registrant's telephone number, including area code:
214-631-4420

Not Applicable


Former name or former address, if changed since last report

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐



Item 1.01
Entry Into a Material Definitive Agreement.

Agreements with Arcosa, Inc.

On October 31, 2018, Trinity Industries, Inc. ("Trinity") entered into definitive agreements with Arcosa, Inc., a wholly-owned subsidiary of Trinity at that time ("Arcosa"), that, among other things, set forth the terms and conditions of the separation of Arcosa from Trinity (the "Separation") and provide a framework for Trinity's relationship with Arcosa after the Separation, including the allocation between Trinity and Arcosa of Trinity's and Arcosa's assets, liabilities and obligations attributable to periods prior to, at and after the Separation. In addition to a Separation and Distribution Agreement, which contains certain key provisions related to the Distribution (as defined below), the parties also entered into an Employee Matters Agreement, a Tax Matters Agreement, a Transition Services Agreement and an Intellectual Property Matters Agreement (collectively, the "Separation Agreements").

Separation and Distribution Agreement

On October 31, 2018, Trinity entered into a Separation and Distribution Agreement with Arcosa that sets forth, among other things, the agreements between Trinity and Arcosa regarding the principal transactions necessary to effect the Separation and the Distribution. It also sets forth other agreements that govern certain aspects of Trinity's ongoing relationship with Arcosa after the completion of the Separation and Distribution. The description of the Separation and Distribution Agreement set forth under this Item 1.01 is qualified in its entirety by reference to the terms and conditions of the Separation and Distribution Agreement attached hereto as Exhibit 2.1.

Transition Services Agreement

On October 31, 2018, Trinity and Arcosa entered into a Transition Services Agreement pursuant to which Trinity and Arcosa will each provide the other party with various services, including services relating to human resources, benefits administration, payroll, technology and information technology, for a transition period of up to eighteen months (which may be extended in certain circumstances) following the Distribution. The charges for such services are generally intended to allow the service provider to recover all of its direct and indirect costs, generally without profit. The description of the Transition Services Agreement set forth under this Item 1.01 is qualified in its entirety by reference to the terms and conditions of the Transition Services Agreement attached hereto as Exhibit 10.1.

Tax Matters Agreement

On October 31, 2018, Trinity and Arcosa entered into a Tax Matters Agreement which governs Trinity's and Arcosa's respective rights, responsibilities and obligations after the Distribution with respect to tax liabilities and benefits (including taxes arising in the ordinary course of business and taxes, if any, incurred as a result of any failure of the Distribution or certain related transactions to qualify for tax-free treatment for U.S. federal income tax purposes), tax attributes, the preparation and filing of tax returns, the control of audits and other tax proceedings and other matters regarding taxes. The description of the Tax Matters Agreement set forth under this Item 1.01 is qualified in its entirety by reference to the terms and conditions of the Tax Matters Agreement attached hereto as Exhibit 10.2.

Employee Matters Agreement

On October 31, 2018, Trinity and Arcosa entered into an Employee Matters Agreement which, among other things, governs Trinity’s, Arcosa’s and the parties’ respective subsidiaries’ and affiliates’ rights, responsibilities, and obligations after the spin-off with respect to the following matters: (i) employees and former employees (and their respective dependents and beneficiaries) who are or were employed with Trinity, Arcosa or the parties’ respective subsidiaries or affiliates;  (ii) the allocation of assets and liabilities generally relating to employees, employment or service-related matters and employee benefit plans;   (iii) employee compensation plans and director compensation plans, including equity plans; and (iv) other human resources, employment, and employee benefits matters.  The description of the Employee Matters Agreement set forth under this Item 1.01 is qualified in its entirety by reference to the terms and conditions of the Employee Matters Agreement attached hereto as Exhibit 10.3.

Intellectual Property Matters Agreement

On October 31, 2018, Trinity and Arcosa entered into an Intellectual Property Matters Agreement, under which Trinity will license certain intellectual property to Arcosa, and Arcosa will license certain intellectual property to Trinity. The licenses will be perpetual, irrevocable, royalty-free, fully paid-up, worldwide licenses, in connection with the current and future operation of the businesses, subject to certain limitations. The description of the Intellectual Property Agreement set forth under this Item 1.01 is qualified in its entirety by reference to the terms and conditions of the Intellectual Property Agreement attached hereto as Exhibit 10.4.

Credit Facility with JPMorgan

On November 1, 2018, Trinity entered into an Amended and Restated Credit Agreement (the “Credit Agreement”), by and among Trinity, as borrower, the lenders party thereto (the “Lenders”), JPMorgan Chase Bank, National Association (“JP Morgan”), as administrative agent, Bank of America, N.A., as syndication agent, and SunTrust Bank and Wells Fargo Bank, National Association, as co-documentation agents. The Credit Agreement replaces Trinity’s existing credit agreement, dated as of May 20, 2015 (as amended from time to time, the "Prior Credit Agreement").


The Credit Agreement provides for a $450.0 million unsecured revolving line of credit with a maturity date of November 1, 2023. The Credit Agreement includes a $100.0 million sublimit for the issuance of letters of credit (each, a “Letter of Credit”). Trinity may also increase the amount of the commitments under the Credit Agreement by an aggregate amount not to exceed $200.0 million, subject to certain conditions including the agreement of existing Lenders to increase their commitments or by obtaining commitments from one or more new Lenders.

On November 1, 2018, there were no outstanding loans borrowed under the Credit Agreement and there was approximately $57.4 million in Letters of Credit issued under the Credit Agreement. The interest rates under the facilities are variable based on LIBOR or an alternate base rate at the time of the borrowing and Trinity’s leverage as measured by a consolidated total indebtedness to consolidated EBITDA ratio, and initially are set at LIBOR plus 1.25%. A commitment fee will accrue on the average daily unused portion of the revolving facility at the rate of 0.175% to 0.30%, initially set at 0.175%.

Following the Separation, the following subsidiaries of Trinity constituted Material Domestic Subsidiaries (as defined in the Credit Agreement): Trinity Highway Products, LLC, a Delaware limited liability company (“Highway Products”), Trinity Industries Leasing Company, a Delaware corporation, Trinity Rail Group, LLC, a Delaware limited liability company, Trinity Tank Car, Inc., a Delaware corporation, and Trinity North American Freight Car, Inc., a Delaware corporation (collectively, the “Subsidiary Guarantors”).  In connection with the Credit Agreement, each of the Subsidiary Guarantors unconditionally guaranteed the Company’s obligations under the Credit Agreement, pursuant to the terms of an Amended and Restated Subsidiary Guaranty dated November 1, 2018 (the “Credit Agreement Guaranty”). Further, in connection with the Credit Agreement, each of the following former subsidiaries of Trinity (which, as of November 1, 2018, were wholly owned subsidiaries of Arcosa) was released as a guarantor under the Prior Credit Agreement:  Trinity Structural Towers, Inc., a Delaware corporation, Meyer Utility Structures, LLC (formerly known as Trinity Meyer Utility Structures, LLC), a Delaware limited liability company, and Trinity Marine Products, Inc., a Delaware corporation (collectively, the “Released Guarantors”).

The description of the Credit Agreement set forth under this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the terms and conditions of the Credit Agreement, which is attached hereto as Exhibit 10.5 and is incorporated by reference herein.

Additional Notes Guarantee and Fourth Supplemental Indenture

Trinity is party to the Senior Notes Indenture dated as of September 25, 2014, among Trinity, the Subsidiary Guarantors from time to time party thereto, and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture dated as of September 25, 2014, the Second Supplemental Indenture dated as of March 24, 2015, and the Third Supplemental Indenture dated as of April 20, 2017 (collectively, the “Indenture”), pursuant to which Trinity issued its 4.450% Senior Notes due 2024 (the “Notes”). The Indenture provides that each subsidiary of Trinity that is a Subsidiary Guarantor under the Credit Agreement Guaranty must also become a guarantor under the Indenture and unconditionally guarantee the obligations of Trinity on the Notes.  Highway Products was required to join the Credit Agreement Guaranty as a new Subsidiary Guarantor in connection with the Credit Agreement.  Accordingly, Highway Products, Trinity and Trustee entered into a Fourth Supplemental Indenture to the Indenture dated November 1, 2018, pursuant to which Highway Products unconditionally guaranteed the obligations of Trinity under the Indenture and the Notes.

Release of Guarantors under Indenture

The Indenture further provides that the guarantee of a guarantor under the Indenture will be automatically and unconditionally released in the event that the guarantor is no longer a guarantor under the Credit Agreement.   As a result of Trinity’s entry into the Credit Agreement, each of the Released Guarantors was automatically released from its guarantee under the Indenture because the Released Guarantors are no longer guarantors of the Credit Agreement.

Item 2.01.
Completion of Acquisition or Disposition of Assets.

Effective as of 12:01 a.m. local New York City time on November 1, 2018 (the "Distribution Date"), Trinity completed the Separation and the pro rata distribution to holders of record of Trinity common stock, par value $0.01 per share, as of 5:00 p.m. local New York City time on October 17, 2018 (the "Record Date"), of one share of Arcosa common stock, par value $0.01 per share, for every three shares of Trinity common stock held by such Trinity stockholders as of the Record Date (the "Distribution"). Arcosa is now an independent public company and commenced trading "regular way" under the symbol "ACA" on the New York Stock Exchange on the Distribution Date. Trinity did not issue fractional shares of Arcosa’s common stock in the Distribution. Trinity stockholders received cash in lieu of fractional shares.  Following the Distribution, Trinity does not beneficially own any shares of Arcosa common stock and will no longer consolidate Arcosa within its financial results.


Item 2.03.
Creation of Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth in the section referred to as “Credit Facility with JPMorgan” in Item 1.01 is incorporated by reference herein.

Item 5.02.
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

In connection with the Distribution, each of Messrs. Rhys J. Best, David W. Biegler, Antonio Carrillo, Ronald J. Gafford and Douglas L. Rock resigned from his position as a director of Trinity's Board of Directors, effective as of the Distribution Date. Each of Messrs. Best, Biegler, Carrillo, Gafford and Rock is now a director of Arcosa.  In connection with the Distribution, each of Brandon B. Boze, John J. Diez and E. Jean Savage was appointed as a director of Trinity’s Board of Directors, effective as of the Distribution Date.  Following the Distribution, Trinity’s board of directors consists of Timothy R. Wallace, John L. Adams, Brandon B. Boze, John J. Diez, Leldon E. Echols, Charles W. Matthews, E. Jean Savage, and Dunia A. Shive.

In connection with the Distribution, Mary E. Henderson resigned from her position as Vice President and Chief Accounting Officer of Trinity.  Ms. Henderson is the Chief Accounting Officer of Arcosa.  Steven L. McDowell, 56, has been appointed as Vice President and Chief Accounting Officer of Trinity following Ms. Henderson's resignation.  Mr. McDowell joined Trinity in 2013 as Vice President and Chief Audit Executive and was named Vice President and Chief Compliance Officer in 2017. Prior to joining Trinity, he worked for Dean Foods from 2007 to 2013, where he held a variety of management positions and most recently served as Vice President, Internal Audit and Risk Management. Prior to his tenure at Dean Foods, he served as Vice President - Internal Audit at Centex Corporation.  Mr. McDowell does not have any related person transactions with Trinity reportable under Item 404(a) of Regulation S-K.

Item 5.03.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Effective as of the Distribution Date, the bylaws of Trinity were amended (the “By-Laws Amendment”) to change the size of the Board of Directors of Trinity from ten (10) directors to eight (8) directors. The description set forth under this Item 5.03 is qualified in its entirety by reference to the full text of the By-Laws Amendment, which is attached hereto as Exhibit 3.1.

Item 8.01
Other Events

On November 1, 2018, Trinity issued a press release announcing the completion of the Distribution. A copy of the press release is attached hereto as Exhibit 99.1.

Item 9.01
Financial Statements and Exhibits.

(b) Pro Forma Financial Information

Trinity intends to file the pro forma financial information required by Item 9.01(b) as an amendment to this Current Report on Form 8-K.

(d) Exhibits.

Exhibit No.
 
Description
 
Separation and Distribution Agreement, dated as of October 31, 2018, by and between Trinity Industries, Inc. and Arcosa, Inc. *
 
Amendment to Trinity Industries, Inc.’s Bylaws, decreasing the number of directors from ten (10) to eight (8), effective November 1, 2018.
 
Transition Services Agreement, dated as of October 31, 2018, by and between Trinity Industries, Inc. and Arcosa, Inc.
 
Tax Matters Agreement, dated as of October 31, 2018, by and between Trinity Industries, Inc. and Arcosa, Inc.
 
Employee Matters Agreement, dated as of October 31, 2018, by and between Trinity Industries, Inc. and Arcosa, Inc.
 
Intellectual Property Matters Agreement, dated as of October 31, 2018, by and between Trinity Industries, Inc. and Arcosa, Inc.
 
Amended and Restated Credit Agreement, dated as of November 1, 2018, by and among Trinity, as borrower, the lenders party thereto, JPMorgan Chase Bank, National Association, as administrative agent, Bank of America, N.A., as syndication agent, and SunTrust Bank and Wells Fargo Bank, National Association, as co-documentation agents
 
Fourth Supplemental Indenture dated November 1, 2018, by and among Trinity Industries, Inc., Trinity Highway Products, LLC, and Wells Fargo Bank, National Association, as trustee.
 
Press Release of Trinity Industries, Inc., dated as of November 1, 2018.



*              This filing excludes schedules and exhibits pursuant to Item 601(b)(2) of Regulation S-K, which the registrant agrees to furnish supplementally to the Securities and Exchange Commission upon its request.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 
Trinity Industries, Inc.
     
 November 1, 2018
By:
/s/ James E. Perry
   
Name:
James E. Perry
   
Title:
Senior Vice President and Chief Financial Officer



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Section 2: EX-2.1 (EXHIBIT 2.1)


Exhibit 2.1

SEPARATION AND DISTRIBUTION AGREEMENT

by and between

TRINITY INDUSTRIES, INC.

and

ARCOSA, INC.

Dated as of October 31, 2018


TABLE OF CONTENTS

ARTICLE I
     
DEFINITIONS
     
Section 1.1
Definitions
  2
Section 1.2
References; Interpretation
19
Section 1.3
Effective Time
19
Section 1.4
Other Matters
19
 
ARTICLE II
     
THE SEPARATION
 
Section 2.1
General
20
Section 2.2
The Separation
20
Section 2.3
Settlement of Intergroup Indebtedness
21
Section 2.4
Bank Accounts; Cash Balances
21
Section 2.5
Limitation of Liability; Termination of Agreements.
22
Section 2.6
Delayed Transfer of Assets or Liabilities
23
Section 2.7
Transfer Documents
25
Section 2.8
Shared Contracts
26
Section 2.9
Further Assurances
27
Section 2.10
Novation of Liabilities; Consents
27
Section 2.11
Guarantees and Letters of Credit
28
Section 2.12
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
29
 
ARTICLE III
     
CERTAIN ACTIONS PRIOR TO THE DISTRIBUTION
 
Section 3.1
Separation
31
Section 3.2
Certificate of Incorporation; Bylaws
31
Section 3.3
Directors
31
Section 3.4
Resignations
31
Section 3.5
Ancillary Agreements
31
Section 3.6
Arcosa Financing Arrangements
31
 
ARTICLE IV
     
THE DISTRIBUTION
 
Section 4.1
The Distribution
32
Section 4.2
Fractional Shares
32
Section 4.3
Actions in Connection with Distribution
33
Section 4.4
Sole Discretion of Trinity
33

i

Section 4.5
Conditions
34
 
ARTICLE V
     
COVENANTS
   
Section 5.1
Legal Names and Other Parties' Trademark
35
Section 5.2
Auditors and Audits; Annual and Quarterly Financial Statements and Accounting
36
Section 5.3
No Restrictions on Corporate Opportunities
38
Section 5.4
Certain Non-Competition Provisions.
39
 
ARTICLE VI
 
 
SURVIVAL AND INDEMNIFICATION; MUTUAL RELEASES
 
Section 6.1
Release of Pre-Distribution Claims
40
Section 6.2
Indemnification by Trinity
42
Section 6.3
Indemnification by Arcosa
43
Section 6.4
Procedures for Indemnification; Third Party Claims
43
Section 6.5
Indemnification Payments
45
Section 6.6
Survival of Indemnities
45
Section 6.7
Indemnification Obligations Net of Insurance Proceeds and Other Amounts; Contribution
45
Section 6.8
Direct Claims
46
Section 6.9
Remedies Cumulative
47
Section 6.10
Consequential Damages
47
Section 6.11
Ancillary Agreements
47
 
ARTICLE VII
     
CONFIDENTIALITY; ACCESS TO INFORMATION
 
Section 7.1
Provision of Corporate Records
47
Section 7.2
Access to Information
48
Section 7.3
Witness Services
48
Section 7.4
Cooperation
49
Section 7.5
Confidentiality
49
Section 7.6
Privileged Matters
51
Section 7.7
Ownership of Information
53
Section 7.8
Other Agreements
53
Section 7.9
Compensation for Providing Information
53
 
ARTICLE VIII
     
DISPUTE RESOLUTION
 
Section 8.1
Negotiation
53

ii

Section 8.2
Mediation
54
Section 8.3
Arbitration
54
Section 8.4
Selection of Arbitrators
55
Section 8.5
Arbitration Procedures
55
Section 8.6
Discovery
55
Section 8.7
Confidentiality of Proceedings
55
Section 8.8
Pre-Hearing Procedure and Disposition
56
Section 8.9
Continuity of Service and Performance
56
Section 8.10
Awards
56
Section 8.11
Costs
56
Section 8.12
Adherence to Time Limits
56
 
ARTICLE IX
     
INSURANCE
 
Section 9.1
General Liability Policies to be Maintained by Arcosa
57
Section 9.2
General Liability Policies to be Maintained by Trinity
57
Section 9.3
Policies and Allocation of Related Rights and Obligations
58
Section 9.4
First-Party Policies
58
Section 9.5
Claims-Made Liability Policies
59
Section 9.6
Crime/Fidelity Bonds
59
Section 9.7
Occurrence Liability Policies
59
Section 9.8
Third Party Shared Policies
59
Section 9.9
Administration of Claims; Other Matters
60
Section 9.10
Agreement for Waiver of Conflict and Shared Defense
62
Section 9.11
Cooperation
62
Section 9.12
Miscellaneous
62
 
ARTICLE X
     
MISCELLANEOUS
 
Section 10.1
Complete Agreement
62
Section 10.2
Ancillary Agreements
63
Section 10.3
Counterparts
63
Section 10.4
Survival of Agreements
63
Section 10.5
Costs and Expenses; Payment
63
Section 10.6
Notices
64
Section 10.7
Waiver
64
Section 10.8
Modification or Amendment
65
Section 10.9
No Assignment; Binding Effect
65
Section 10.10
Termination
65
Section 10.11
Payment Terms
65
Section 10.12
No Circumvention
65
Section 10.13
Subsidiaries
66
Section 10.14
Third Party Beneficiaries
66

iii

Section 10.15
Titles and Headings
66
Section 10.16
Exhibits and Schedules
66
Section 10.17
Public Announcements
66
Section 10.18
Governing Law
67
Section 10.19
Consent to Jurisdiction
67
Section 10.20
Specific Performance
67
Section 10.21
Waiver of Jury Trial
67
Section 10.22
Severability
68
Section 10.23
Construction
68
Section 10.24
Authorization
68
Section 10.25
No Duplication; No Double Recovery
68
Section 10.26
Tax Treatment of Payments
68
Section 10.27
Cooperation and General Knowledge Transfer
69
Section 10.28
No Reliance on Other Party
69

SCHEDULES

 
Schedule 1.1(7)
Other Ancillary Agreements
 
Schedule 1.1(10)(v)
Specified Arcosa Assets
 
Schedule 1.1(14)(iii)
Specified Arcosa Contracts
 
Schedule 1.1(16)
Arcosa Financing Arrangements
 
Schedule 1.1(22)(ii)(C)
Arcosa Environmental Liabilities
 
Schedule 1.1(22)(v)
Arcosa Proceedings
 
Schedule 1.1(22)(viii)
Specified Arcosa Liabilities
 
Schedule 1.1(34)
Continuing Arrangements
 
Schedule 1.1(109)(iv)
Specified Trinity Assets
 
Schedule 1.1(120)(ii)(C)
Trinity Environmental Liabilities
 
Schedule 1.1(120)(iv)(A)
Discontinued Operations
 
Schedule 1.1(120)(iv)(B)
Excluded Discontinued Operations Liabilities
 
Schedule 1.1(120)(vii)
Trinity Proceedings
 
Schedule 1.1(120)(ix)
Specified Trinity Liabilities
 
Schedule 2.2(a)
Trinity Transferred Entities
 
Schedule 2.2(b)
Arcosa Transferred Entities
 
Schedule 2.8(c)(i)
Shared Contracts to Separate
 
Schedule 2.8(c)(ii)
Shared Contracts to be Assigned
 
Schedule 2.11(a)
Guaranty Release – Arcosa Release
 
Schedule 2.11(b)
Guaranty Release – Trinity Release
 
Schedule 10.1
Ancillary Agreements Prevail Exceptions
 
Schedule 10.17
Public Announcements

EXHIBITS

 
Exhibit A
Form of Employee Matters Agreement
 
Exhibit B
Form of Tax Matters Agreement
 
Exhibit C
Form of Transition Services Agreement
 
Exhibit D
Form of Intellectual Property Matters Agreement

iv

SEPARATION AND DISTRIBUTION AGREEMENT
 
THIS SEPARATION AND DISTRIBUTION AGREEMENT (this "Agreement"), is entered into as of October 31, 2018, by and between Trinity Industries, Inc., a Delaware corporation ("Trinity"), and Arcosa, Inc., a Delaware corporation and a wholly owned subsidiary of Trinity ("Arcosa") (each a "Party" and together, the "Parties").
 
RECITALS
 
WHEREAS, Trinity, acting through its direct and indirect Subsidiaries, currently conducts a number of businesses, including the Arcosa Business;
 
WHEREAS, the Board of Directors of Trinity (the "Trinity Board") has determined that it is appropriate, desirable and in the best interests of Trinity and its stockholders to separate Trinity into two separate, independent, publicly-traded companies: (i) one comprising the Arcosa Business, which shall be owned and conducted directly or indirectly by Arcosa, all of the common stock of which is intended to be distributed to Trinity stockholders, and (ii) one comprising the Trinity Business, which shall continue to be owned and conducted, directly or indirectly, by Trinity;
 
WHEREAS, in furtherance of the foregoing, the Trinity Board has determined that it is appropriate, desirable and in the best interests of Trinity and its stockholders: (i) for Trinity and its Subsidiaries to enter into a series of transactions whereby Trinity and its Subsidiaries will be reorganized such that (A) Trinity and/or one or more other members of the Trinity Group will own all of the Trinity Assets and assume (or retain) all of the Trinity Liabilities, and (B) Arcosa and/or one or more other members of the Arcosa Group will own all of the Arcosa Assets and assume (or retain) all of the Arcosa Liabilities (the transactions referred to in clauses (A) and (B) being referred to herein as the "Separation"); and (ii) thereafter, on the Distribution Date, for Trinity to distribute to the holders of issued and outstanding shares of common stock of Trinity (the "Trinity Common Stock") as of the Record Date on a pro rata basis all of the issued and outstanding shares of common stock of Arcosa (the "Arcosa Common Stock") (such transactions described in this clause (ii), as may be amended or modified from time to time in accordance with the terms and subject to the conditions of this Agreement, the "Distribution");
 
WHEREAS, Arcosa has been incorporated for this purpose and has not engaged in activities except in preparation for its corporate reorganization (including activities with respect to the Arcosa Financing Arrangements) and the distribution of its stock;
 
WHEREAS, Trinity and Arcosa have determined that it is necessary and desirable, at or prior to the Effective Time, to allocate, transfer or assign the Arcosa Assets and Arcosa Liabilities to the Arcosa Group, and to allocate, transfer or assign the Trinity Assets and Trinity Liabilities to the Trinity Group;
 
WHEREAS, the Parties intend that the Distribution, together with certain related transactions, generally will qualify as tax-free for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the United States Internal Revenue Code of 1986, as amended (the "Code"), and that this Agreement is intended to be, and is hereby adopted as, a plan of reorganization under Section 368 of the Code to the extent relevant for these transactions; and
 

WHEREAS, it is appropriate and desirable to set forth the principal corporate transactions required to effect the Separation and to set forth certain other agreements that will, following the Distribution, govern certain matters relating to the Separation and the relationship of Arcosa and Trinity and their respective Affiliates.
 
NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
 
ARTICLE I

DEFINITIONS
 
Section 1.1          Definitions.  As used in this Agreement, the following terms shall have the meanings set forth below:
 
(1)          "AAA" has the meaning assigned to such term in Section 8.3.
 
(2)          "Affiliate" means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such specified Person; provided, however, that for purposes of this Agreement, no member of either Group shall be deemed to be an Affiliate of any member of the other Group, including by reason of having common stockholders or one or more directors in common.  As used herein, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or other interests, by Contract or otherwise.
 
(3)          "Agent" means the distribution agent to be appointed by Trinity to distribute to the stockholders of Trinity all of the outstanding shares of Arcosa Common Stock pursuant to the Distribution.
 
(4)          "Agreement" has the meaning assigned to such term in the Preamble hereto.
 
(5)          "Agreement Disputes" has the meaning assigned to such term in Section 8.1(a).
 
(6)          "Amended Financial Reports" has the meaning assigned to such term in Section 5.2(b).
 
(7)          "Ancillary Agreements" means all of the written Contracts, instruments, assignments or other arrangements (other than this Agreement) entered into by the Parties or their Subsidiaries (but as to which no Third Party is a party) in connection with the Separation, the Distribution or the other transactions contemplated herein, including the Employee Matters Agreement, the Tax Matters Agreement, the Intellectual Property Matters Agreement, the Transition Services Agreement, the Continuing Arrangements, and the other agreements set forth on Schedule 1.1(7).
 
2

(8)          "Arcosa" has the meaning assigned to such term in the Preamble hereto.
 
(9)          "Arcosa Accounts" has the meaning assigned to such term in Section 2.4(a).
 
(10)        "Arcosa Assets" means only the following Assets (without duplication):
 
(i)           the ownership interests (to the extent held by Trinity, Arcosa or any of their respective Affiliates immediately prior to the Effective Time) in each member of the Arcosa Group;

(ii)          all Arcosa Contracts, and any rights or claims (whether accrued or contingent) of Trinity, Arcosa, or any of their respective Affiliates, arising thereunder;

(iii)         all Assets owned, leased or held by Trinity, Arcosa, or any of their respective Affiliates immediately prior to the Effective Time that are used primarily or held for use primarily in the Arcosa Business, including inventory, accounts receivable, goodwill, and all Assets reflected on the Arcosa Balance Sheet, or the accounting records supporting such balance sheet and any Assets acquired by or for the Arcosa Business subsequent to the date of such balance sheet which, had they been so acquired on or before such date and owned as of such date, would have been reflected on such balance sheet if prepared on a consistent basis, subject to any disposition of any of the foregoing Assets subsequent to the date of such balance sheet;

(iv)         subject to Article IX, any rights of any member of the Arcosa Group under any Third Party Shared Policies to the extent related to the Arcosa Business;

(v)          the Assets listed or described on Schedule 1.1(10)(v) and any and all Assets that are expressly contemplated by this Agreement or any Ancillary Agreement as Assets to be retained by, or assigned or transferred to, any member of the Arcosa Group; and

(vi)         all Arcosa Accounts, and, subject to the provisions of Section 2.4, all cash, Cash Equivalents, and securities on deposit in such accounts immediately prior to the Effective Time, after giving effect to any withdrawal by, or other distribution of cash to, Trinity or any member of the Trinity Group which may occur at or prior to the Effective Time.
 
Notwithstanding the foregoing, the Arcosa Assets shall in no event include:
 
(A)         the Assets listed or described on Schedule 1.1(109)(iv); or

(B)         any Assets that are expressly contemplated by this Agreement or any Ancillary Agreement as Assets to be retained by, transferred or assigned to, any member of the Trinity Group, including Assets leased, owned or held by Trinity, Arcosa, or any of their respective Affiliates immediately prior to the Effective Time that are used primarily or held for use primarily in the Trinity Business.
 
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(11)        "Arcosa Balance Sheet" means the balance sheet of the Arcosa Business, as of June 30, 2018, that is included in the Information Statement; provided, however, that to the extent any Assets or Liabilities are Transferred by any Party or any member of its Group to Arcosa or any member of the Arcosa Group or vice versa in connection with the Separation and Internal Reorganization and prior to the Distribution Date, such Assets and/or Liabilities shall be deemed to be included or excluded from the Arcosa Balance Sheet, as the case may be.
 
(12)        "Arcosa Business" means the business, activities and operations of Trinity or any of its Subsidiaries (including the members of the Arcosa Group and the members of the Trinity Group) of the infrastructure-related products and services businesses, including Trinity's inland barge, barge covers and barge fittings and equipment, transportation-related steel components, construction products, and energy equipment businesses (as more fully described in the Registration Statement) conducted at any time prior to the Effective Time by Trinity or Arcosa or any of their current or former subsidiaries or divisions, and the businesses and operations of Business Entities acquired or established by or for any member of the Arcosa Group after the Effective Time; provided that the Arcosa Business shall not include business and operations related to Trinity's highway products-related businesses and pressure heads-related businesses, each of which has been retained by Trinity.
 
(13)        "Arcosa Common Stock" has the meaning assigned to such term in the Recitals hereto.
 
(14)        "Arcosa Contracts" means the following Contracts to which any Party or any of its Subsidiaries or Affiliates is a party or by which it or any of its Affiliates or any of their respective Assets is bound, except for any such Contract or part thereof that is expressly contemplated not to be transferred or assigned by any member of the Trinity Group to Arcosa pursuant to any provision of this Agreement or any Ancillary Agreement:
 
(i)           any Contract that relates primarily to the Arcosa Business;

(ii)          any Contract or part thereof that is otherwise expressly contemplated pursuant to this Agreement or any of the Ancillary Agreements to be retained by, transferred or assigned to, any member of the Arcosa Group; and

(iii)         the Contracts listed or described on Schedule 1.1(14)(iii).
 
(15)        "Arcosa Disclosure" means any form, statement, schedule or other material (other than the Distribution Disclosure Documents) filed with or furnished to the SEC, any other Governmental Authority, or holders of any securities of any member of the Arcosa Group, in each case, on or after the Distribution Date by or on behalf of any member of the Arcosa Group in connection with the registration, sale, or distribution of securities or disclosure related thereto (including periodic disclosure obligations).
 
(16)        "Arcosa Financing Arrangements" means the financing arrangements described on Schedule 1.1(16).
 
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(17)        "Arcosa General Liability Policies" has the meaning assigned to such term in Section 9.1.
 
(18)        "Arcosa Group" Arcosa and each Person that is a direct or indirect Subsidiary of Arcosa as of immediately prior to the Distribution (but after giving effect to the Internal Reorganization), and each Person that becomes a Subsidiary of Arcosa after the Effective Time.
 
(19)        "Arcosa Group Employees" has the meaning assigned to such term in the Employee Matters Agreement.
 
(20)        "Arcosa Indemnified Parties" has the meaning assigned to such term in Section 6.2.
 
(21)        "Arcosa Insureds" has the meaning assigned to such term in Section 9.2.
 
(22)        "Arcosa Liabilities" shall mean all of the following Liabilities of either Party or any of its Subsidiaries:
 
(i)           any and all Liabilities expressly assumed or retained by the Arcosa Group pursuant to this Agreement or the Ancillary Agreements, including any obligations and Liabilities of any member of the Arcosa Group under this Agreement or the Ancillary Agreements;

(ii)          any and all Liabilities of Trinity, Arcosa, or any of their respective Affiliates, to the extent relating to, arising out of or resulting from:

(A)         the operation or conduct of the Arcosa Business, as conducted at any time prior to, on or after the Effective Time (including any Liability to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of Trinity, Arcosa, or any of their respective Affiliates (whether or not such act or failure to act is or was within such Person's authority) with respect to the Arcosa Business);

(B)         the operation or conduct of any business conducted by any member of the Arcosa Group at any time after the Effective Time (including any Liability to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of Arcosa or any of its Affiliates after the Effective Time (whether or not such act or failure to act is or was within such Person's authority) with respect to the Arcosa Business); or

(C)         any Arcosa Assets (including but not limited to any Environmental Liabilities to the extent relating to, arising out of or resulting from any Arcosa Assets, including those set forth on Schedule Section 1.1(22)(ii)(C)), whether arising before, on or after the Effective Time;

(iii)        any and all Liabilities (including under applicable federal and state securities Laws) relating to, arising out of or resulting from any Arcosa Disclosure;

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(iv)         any and all Liabilities relating to, arising out of or resulting from (x) the Arcosa Financing Arrangements and any and all fees, costs and expenses, including legal fees and costs, associated therewith or with the raising or incurrence thereof or (y) any other Indebtedness of any member of the Arcosa Group (whether incurred prior to, on or after the Effective Time);

(v)          for the avoidance of doubt, and without limiting any other matters that may constitute Arcosa Liabilities, any and all Liabilities relating to, arising out of or resulting from any Proceedings primarily related to the Arcosa Business or any Arcosa Asset (except to the extent relating to or resulting from the Trinity Business, the Trinity Assets or the other Trinity Liabilities) including such Proceedings listed or described on Schedule 1.1(22)(v);

(vi)         all Liabilities reflected as Liabilities or obligations on the Arcosa Balance Sheet or on the accounting records supporting such balance sheet, and all  Liabilities arising or assumed after the date of such balance sheet which, had they arisen or been assumed on or before such date and been retained as of such date,  would have been reflected on such balance sheet if prepared on a consistent basis,  subject to any discharge of such Liabilities subsequent to the date of the Arcosa Balance Sheet; it being understood that (x) the Arcosa Balance Sheet and the  accounting records supporting such balance sheet shall be used to determine the types of, and methodologies used to determine, those Liabilities that are included in the  definition of Arcosa Liabilities pursuant to this subclause (vi); and (y) the amounts  set forth on the Arcosa Balance Sheet with respect to any Liabilities shall not be  treated as minimum amounts or limitations on the amount of such Liabilities that are  included in the definition of Arcosa Liabilities pursuant to this subclause (vi);

(vii)        any and all accounts payable primarily related to or arising out of the Arcosa Business; and

(viii)       the Liabilities set forth on Schedule 1.1(22)(viii).
 
Notwithstanding the foregoing, the Arcosa Liabilities shall in any event not include any Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement (or the schedules hereto or thereto) as Liabilities to be retained or assumed by any member of the Trinity Group, including any Liabilities set forth on Schedule 1.1(120)(ix), or for which any member of the Trinity Group is liable pursuant to this Agreement or such Ancillary Agreement.
 
(23)        "Arcosa Transferred Entities" has the meaning assigned to such term in Section 2.2(b).
 
(24)        "Asset" means assets, properties, interests, claims, rights, remedies and recourse (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected or required to be recorded or reflected on the Records or financial statements of any Person, including the following:
 
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(i)           all accounting and other legal and business books, records, ledgers and files, whether printed, electronic or written;

(ii)          all computers and other electronic data processing and communications equipment, fixtures, machinery, equipment, furniture, office equipment, automobiles, trucks and other transportation equipment, special and general tools, test devices, prototypes and models and other tangible personal property;

(iii)         all inventories of products, goods, materials, parts, raw materials and supplies;

(iv)         all interests in real property of whatever nature, including easements, rights-of-way, leases, subleases, licenses or other occupancy agreements, whether as fee owner, mortgagee or holder of a Security Interest in real property, lessor, sublessor, licensor, lessee, sublessee, licensee or otherwise;

(v)          all interests in any capital stock or other equity interests of any Subsidiary or any other Person, all bonds, notes, debentures or other securities issued by any Subsidiary or any other Person, all loans, advances or other extensions of credit or capital contributions to any Subsidiary or any other Person and all other investments in securities of any Person;

(vi)         all Contracts and any rights or claims (whether accrued or contingent) arising under any Contracts;

(vii)        all deposits, letters of credit and performance and surety bonds;

(viii)       all written (including in electronic form) technical information, data, specifications, research and development information, engineering drawings and specifications, operating and maintenance manuals, and materials and analyses prepared by consultants and other third parties;

(ix)         all Intellectual Property;

(x)          all Software;

(xi)         all cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, product data and literature, artwork, design, development and business process files and data, vendor and customer drawings, specifications, quality records and reports and other books, records, studies, surveys, reports, plans and documents;

(xii)        all prepaid expenses, trade accounts and other accounts and notes receivables;

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(xiii)       all claims, rights, remedies and recourse against any Person, whether sounding in tort, contract or otherwise, whether accrued or contingent;

(xiv)       all claims, rights, remedies and recourse under insurance policies and all rights in the nature of insurance, indemnification, reimbursement or contribution;

(xv)        all licenses, permits, approvals and authorizations which have been issued by any Governmental Authority;

(xvi)       all cash or Cash Equivalents, bank accounts, brokerage accounts, lock boxes and other deposit arrangements; and

(xvii)      all interest rate, currency, commodity or other swap, collar, cap or other hedging or similar Contracts or arrangements.
 
(25)        "Audited Party" has the meaning assigned to such term in Section 5.2(a)(ii).
 
(26)        "Business" means the Arcosa Business and/or the Trinity Business, as the context requires.
 
(27)        "Business Day" means any day that is not a Saturday, a Sunday or any other day on which banks are required or authorized by Law to be closed in New York, New York.
 
(28)        "Business Entity" means any corporation, partnership, trust, limited liability company, joint venture, or other incorporated or unincorporated organization or other entity of any kind or nature (including those formed, organized or otherwise existing under the Laws of jurisdictions outside the United States).
 
(29)        "Cash Equivalents" means (i) cash and (ii) checks, certificates of deposit having a maturity of less than one year, money orders, marketable securities, money market funds, commercial paper, short-term instruments and other cash equivalents, funds in time and demand deposits or similar accounts, and any evidence of indebtedness issued or guaranteed by any Governmental Authority, minus the amount of any outbound checks, plus the amount of any deposits in transit.
 
(30)        "Claims Administration" means the administration of claims made under the Third Party Shared Policies, including the reporting of claims to the unaffiliated, Third Party insurance carriers that issued the Third Party Shared Policies, management and defense of such claims, negotiating the resolution of such claims, and providing for appropriate releases upon settlement of such claims.
 
(31)        "Code" has the meaning assigned to such term in the Recitals hereto.
 
(32)        "Confidential Information" shall mean business, operations or other information, data or material concerning a Party and/or its Affiliates which, prior to or following the Effective Time, has been disclosed by a Party or its Affiliates to the other Party or its Affiliates, in written, oral (including by recording), electronic, or visual form to, or otherwise has come into the possession of, the other, including pursuant to the access provisions of Section 7.1 or Section 7.2 or any other provision of this Agreement or any Ancillary Agreement (except to the extent that such information can be shown to have been (i) in the public domain through no action of such Party or its Affiliates or (ii) lawfully acquired from other sources by such Party or its Affiliates to which it was furnished; provided, however, in the case of clause (ii) that, to the furnished Party's knowledge, such sources did not provide such information in breach of any confidentiality or fiduciary obligations).
 
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(33)        "Consents" means any consents, waivers, amendments, notices, reports or other filings to be obtained from or made, including with respect to any Contract, or any registrations, licenses, permits, authorizations to be obtained from, or approvals from, or notification requirements to, any third parties, including any third party to a Contract and any Governmental Authority.
 
(34)        "Continuing Arrangements" means those arrangements set forth on Schedule 1.1(34) and such other commercial arrangements between one or more members of the Trinity Group, on the one hand, and one or more members of the Arcosa Group, on the other hand, that are expressly intended in this Agreement or any Ancillary Agreement to survive and continue following the Effective Time.
 
(35)        "Contract" shall mean any agreement, contract, subcontract, obligation, binding understanding, note, indenture, instrument, option, lease, promise, arrangement, release, warranty, license, sublicense, insurance policy, benefit plan, purchase order or legally binding commitment or undertaking of any nature (whether written or oral and whether express or implied).
 
(36)        "CPR" has the meaning assigned to such term in Section 8.2.
 
(37)        "Delaware Courts " has the meaning assigned to such term in Section 10.19.
 
(38)        "Delayed Transfer Asset or Liability" has the meaning assigned to such term in Section 2.6(b).
 
(39)        "Disclosing Party" has the meaning assigned to such term in Section 10.27.
 
(40)        "Dispute Notice" has the meaning assigned to such term in Section 8.1(a).
 
(41)        "Distribution" has the meaning assigned to such term in the Recitals hereto.
 
(42)        "Distribution Date" means the date of the consummation of the Distribution, which shall be determined by the Trinity Board in its sole discretion.
 
(43)        "Distribution Disclosure Documents" means the Registration Statement and all exhibits thereto (including the Information Statement), any current reports on Form 8-K and the registration statement on Form S-8 related to securities to be offered under Arcosa's employee benefit plans, in each case as filed or furnished by Arcosa with the SEC in connection with the Distribution.
 
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(44)        "Effective Time" means the time at which the Distribution is effective on the Distribution Date.
 
(45)        "Employee Matters Agreement" means the employee matters agreement by and between Trinity and Arcosa, dated as of the date hereof and substantially in the form attached as Exhibit A hereto.
 
(46)        "Environmental Law" means all Laws, including all judicial and administrative orders, determinations, and consent agreements or decrees, relating to pollution, the protection, restoration or remediation of or prevention of harm to the environment or natural resources, or the protection of human health and safety, including Laws relating to: (i) the exposure to, or presence, release or threatened release of, Hazardous Substances; (ii) the generation, manufacture, processing, distribution, use, treatment, containment, disposal, storage, release, transport or handling of Hazardous Substances; or (iii) recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Substances, in each case enacted on the date of this Agreement (regardless of whether the effective date relating thereto is before or after the Distribution).
 
(47)        "Environmental Liabilities" means any Liabilities, arising out of or resulting from any Environmental Law, Contract or agreement relating to the environment, Hazardous Substances or exposure to Hazardous Substances, including (a) fines, penalties, judgments, awards, settlements, losses, expenses and disbursements, (b) costs of defense and other responses to any administrative or judicial action (including notices, claims, complaints, suits and other assertions of liability) and (c) responsibility for any investigation, response, reporting, remediation, monitoring or cleanup costs, injunctive relief, natural resource damages, and any other environmental compliance or remedial measures, in each case known or unknown, foreseen or unforeseen.
 
(48)        "Exchange Act" means the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.
 
(49)        "Final Determination" has the meaning set forth in the Tax Matters Agreement.
 
(50)        "Governmental Approvals" means any notices, reports or other filings to be given to or made with, or any releases, Consents, substitutions, approvals, amendments, registrations, permits or authorizations to be obtained from, any Governmental Authority.
 
(51)        "Governmental Authority" means any federal, state, local, foreign or international court, government, department, commission, board, bureau or agency, or any other regulatory, self-regulatory, administrative or governmental organization or authority, including NYSE and any similar self-regulatory body under applicable securities Laws.
 
(52)        "Group" means the Trinity Group and/or the Arcosa Group, as the context requires.
 
(53)        "Guaranty Release" has the meaning assigned to such term in Section 2.11(b).
 
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(54)        "Hazardous Substances" means any and all materials, wastes, chemicals or substances (or combination thereof) that are listed, defined, designated, regulated or classified as hazardous, toxic, radioactive, dangerous, a pollutant, a contaminant, petroleum, oil, or words of similar meaning or effect, or for which liability can be imposed, under Environmental Law.
 
(55)        "Indebtedness" means, (i) any indebtedness for borrowed money or the deferred purchase price of property as evidenced by a note, bonds or other instruments, (ii) obligations as lessee under capital leases, (iii) obligations secured by any mortgage, pledge (including a negative pledge), Security Interest, encumbrance, lien or charge of any kind existing on any Asset owned or held by any Person, whether or not such Person has assumed or become liable for the obligations secured thereby, (iv) any obligation under any interest rate swap agreement, (v) accounts payable, (vi) reimbursement obligations with respect to surety and performance bonds or letters of credit, and (vii) obligations under direct or indirect guarantees of (including obligations, contingent or otherwise, to assure a creditor against loss in respect of) indebtedness or obligations of the kinds referred to in clauses (i), (ii), (iii), (iv), (v) and (vi) above.
 
(56)        "Indemnifiable Loss" means any and all damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses (including reasonable costs and expenses of any and all Proceedings and demands, assessments, judgments, settlements and compromises relating thereto and the reasonable costs and expenses of attorneys', accountants', consultants' and other professionals' fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder).
 
(57)        "Indemnified Party" or "Indemnified Parties" has the meaning assigned to such term in Section 6.2.
 
(58)       "Indemnifying Party" means Arcosa, for any indemnification obligation arising under Section 6.3, and Trinity, for any indemnification obligation arising under Section 6.2.
 
(59)       "Indemnity Payment" has the meaning assigned to such term in Section 6.7(a)(i).
 
(60)        "Information" means all information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including confidential or non-public information (including non-public financial information), proprietary information, studies, reports, Records, books, accountants' work papers, contracts, instruments, surveys, discoveries, ideas, concepts, processes, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, methodologies, prototypes, samples, flow charts, data, computer data, information contained in disks, diskettes, tapes, computer programs or other Software, marketing plans, customer data, communications by or to attorneys (including attorney work product), memos and other materials prepared by attorneys and accountants or under their direction (including attorney work product), and other technical, financial, legal, employee or business information or data.
 
(61)        "Information Statement" means the information statement of Arcosa, included as Exhibit 99.1 to the Registration Statement, to be distributed to holders of Trinity common stock in connection with the Distribution, including any amendments or supplements thereto.
 
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(62)        "Insurance Administration" means, with respect to each Third Party Shared Policy: (i) the accounting for premiums, retrospectively-rated premiums, defense costs, indemnity payments, deductibles and retentions, as appropriate, under the terms and conditions of such Third Party Shared Policy; (ii) the reporting to the relevant unaffiliated, Third Party insurer that issues such Third Party Shared Policy of any losses or claims which may be covered by such Third Party Shared Policy; and (iii) the distribution of Insurance Proceeds related to such Third Party Shared Policy, subject to the terms of Article IX.
 
(63)        "Insurance Proceeds" means those monies (i) received by an insured from an unaffiliated Third Party insurer under any Third Party Shared Policy, or (ii) paid by such Third Party insurer on behalf of an insured under any Third Party Shared Policy, in either case net of any applicable premium adjustment, retrospectively-rated premium, deductible, retention, or cost of reserve paid or held by or for the benefit of such insured, and any costs incurred in collecting such monies.
 
(64)        "Insured Claim" means those Liabilities that, individually or in the aggregate, are covered within the terms and conditions of any of the Third Party Shared Policies, whether or not subject to deductibles, co-insurance, uncollectibility, exhaustion of limits, or retrospectively-rated premium adjustments.
 
(65)        "Intellectual Property" means all intellectual property and other similar proprietary rights of every kind and description throughout the world, whether registered or unregistered, including such rights in and to United States and foreign: (i) trademarks, trade dress, service marks, certification marks, logos, slogans, design rights, trade names, domain names and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (collectively, "Trademarks"); (ii) patents and patent applications, and any and all divisionals, continuations, continuations-in-part, reissues, reexaminations, and extensions thereof, any counterparts claiming priority therefrom, utility models, certificates of invention, certificates of registration, design registrations or patents and similar rights; (iii) rights in inventions, invention disclosures, discoveries and improvements, whether or not patentable; (iv) all copyrights and copyrightable subject matter; (v) trade secrets (including, those trade secrets defined in the Uniform Trade Secrets Act and under corresponding foreign statutory Law and common law), proprietary rights in Information, and rights to limit the use or disclosure of any of the foregoing by any Person; (vi) rights in computer programs (whether in source code, object code, or other form), algorithms, databases, application programming interfaces, compilations and data, technology supporting the foregoing, and all documentation and specifications related to any of the foregoing (collectively, "Software"); (vii) moral rights and rights of attribution and integrity; (viii) all rights in the foregoing and in other similar intangible assets; (ix) all applications and registrations for the foregoing; and (x) all rights and remedies against past, present, and future infringement, misappropriation, or other violation thereof.
 
(66)        "Intellectual Property Matters Agreement" means the intellectual property matters agreement by and between Trinity and Arcosa, dated as of the date hereof and substantially in the form attached as Exhibit D hereto.
 
(67)       "Intergroup Indebtedness" means any receivables, payables, accounts, advances, loans, guarantees, commitments and indebtedness for borrowed funds between a member of the Trinity Group and a member of the Arcosa Group as of the Distribution; provided, however, that "Intergroup Indebtedness" shall not include any accounts payable or contingent Liabilities arising pursuant to (i) any intercompany agreement that will survive the Separation and Distribution, (ii) the Ancillary Agreements, (iii) any agreements with respect to continuing transactions between Trinity and Arcosa and (iv) any other agreements entered into in the ordinary course of business at or following the Distribution.
 
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(68)        "Internal Control Audit and Management Assessments" has the meaning assigned to such term in Section 5.2(a)(i).
 
(69)        "Internal Reorganization" means all of the transactions, other than the Distribution, described in the step plan delivered by Trinity to Arcosa on August 14, 2018, 2018, as it may be amended by Trinity from time to time prior to the Distribution.
 
(70)        "Law" means any applicable foreign, federal, national, state, provincial or local law (including common law), statute, ordinance, rule, regulation, code or other requirement enacted, promulgated, issued or entered into, or act taken, by a Governmental Authority.
 
(71)        "Liabilities" means all debts, liabilities, obligations, responsibilities, losses, damages (whether compensatory, punitive, consequential, treble or other), fines, penalties and sanctions, absolute or contingent, matured or unmatured, reserved or unreserved, liquidated or unliquidated, foreseen or unforeseen, on or off balance sheet, joint, several or individual, asserted or unasserted, accrued or unaccrued, known or unknown, whenever arising under or in connection with any Law (including any Environmental Law), or other pronouncements of Governmental Authorities constituting a Proceeding, order or consent decree of any Governmental Authority or any award of any arbitration tribunal, and those arising under any Contract, agreement, guarantee, commitment or undertaking, whether sought to be imposed by a Governmental Authority, private party, or a Party, whether based in contract, tort, implied or express covenant or warranty, strict liability, criminal or civil statute, or otherwise, and including any costs, expenses, interest, attorneys' fees, disbursements and expense of counsel, expert and consulting fees, fees of third party administrators, and costs related thereto or to the investigation or defense thereof.
 
(72)        "Liable Party" has the meaning assigned to such term in Section 2.10(b).
 
(73)       "Mediation Notice" has the meaning assigned to such term in Section 8.2.
 
(74)        "Non-Compete Period" has the meaning assigned to such term in Section 5.4(a).
 
(75)       "NYSE" means the New York Stock Exchange.
 
(76)        "Other Parties' Auditors" has the meaning assigned to such term in Section 5.2(a)(ii).
 
(77)       "Other Party Marks" has the meaning assigned to such term in Section 5.1(a).
 
(78)       "Party" or "Parties" has the meaning assigned to such term in the Preamble hereto.
 
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(79)       "Person" means any natural person, corporation, general or limited partnership, limited liability company or partnership, joint stock company, joint venture, association, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, and any Governmental Authority.
 
(80)        "Pre-Separation Disclosure" mean any form, statement, schedule or other material (other than the Distribution Disclosure Documents) that Trinity, Arcosa, or any of their respective Affiliates filed with or furnished to the SEC, any other Governmental Authority, or holders of any securities of Trinity or any of its Affiliates, in each case, prior to the Effective Time and in connection with the registration, sale, or distribution of securities or disclosure related thereto (including periodic disclosure obligations).
 
(81)        "Proceeding" means any claim, charge, demand, action, cause of action, suit, countersuit, arbitration, litigation, inquiry, subpoena, proceeding, or investigation of any kind by or before any court, grand jury, Governmental Authority or any arbitration or mediation tribunal or authority.
 
(82)        "Prohibited Business" has the meaning assigned to such term in Section 5.4(a).
 
 (83)       "Receiving Party" has the meaning assigned to such term in Section 10.27.
 
(84)        "Record Date" means the date to be determined by the Trinity Board in its sole discretion as the record date for the Distribution.
 
(85)        "Records" means all books, records and other documents, books of account, stock records and ledgers, financial, accounting and personnel records, files, invoices, customers' and suppliers' lists, other distribution lists, operating, production and other manuals and sales and promotional literature, in all cases, in any form or medium.
 
(86)       "Registration Statement" means the Registration Statement on Form 10 of Arcosa (which includes the Information Statement) relating to the registration under the Exchange Act of Arcosa Common Stock, including all amendments or supplements thereto.
 
(87)        "Rules" has the meaning assigned to such term in Section 8.3.
 
(88)       "SEC" means the United States Securities and Exchange Commission or any successor agency thereto.
 
(89)       "Security Interest" means any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-way, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever, excluding restrictions on transfer under securities Laws.
 
(90)        "Separation" has the meaning assigned to such term in the Recitals hereto.
 
(91)        "Shared Contract" means any Contract of any member of the Arcosa Group or Trinity Group that, as of the Distribution, relates in any material respect to both the Arcosa Business, on the one hand, and the Trinity Business, on the other hand in respect of rights or performance obligations for periods of time after the Distribution.
 
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(92)        "Shared Contractual Liabilities" means Liabilities in respect of Shared Contracts.
 
(93)        "Software" has the meaning assigned to such term in the definition of Intellectual Property.
 
(94)        "Subsidiary" means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other persons performing similar functions is directly or indirectly owned or controlled by such Person and/or by one or more of its Subsidiaries.
 
(95)       "Tax" or "Taxes" has the meaning assigned to such term in the Tax Matters Agreement.
 
(96)        "Tax Authority" has the meaning set forth in the Tax Matters Agreement.
 
(97)        "Tax Contest" has the meaning assigned to such term in the Tax Matters Agreement.
 
 (98)       "Tax Matters Agreement" means the tax matters agreement by and between Trinity and Arcosa, dated as of the date hereof and substantially in the form attached as Exhibit B hereto.
 
(99)        "Tax Return" has the meaning assigned to such term in the Tax Matters Agreement.
 
(100)      "Third Party" shall mean any Person other than the Parties or any of their respective Subsidiaries.
 
(101)      "Third Party Claim" has the meaning assigned to such term in Section 6.4(a).
 
(102)      "Third Party Shared Policy" means all policies, excluding those identified in Sections 9.3 through 9.6, whether or not in force at the Effective Time, issued by unaffiliated Third Party insurers to Trinity, Arcosa, or any of their respective Affiliates, which cover insured events, including any accident, illness, disease, occurrence or offense, taking place or insured claims made prior to the Effective Time and relating to the Arcosa Business.
 
(103)      "Trademarks" has the meaning assigned to such term in the definition of Intellectual Property.
 
(104)     "Transfer" has the meaning assigned to such term in Section 2.2(a).
 
(105)      "Transfer Documents" shall mean, collectively, the various instruments, assignments, agreements, Contracts and other documents entered into and to be entered into to effect the transfer of Assets and the assumption of Liabilities in the manner contemplated by this Agreement (including as contemplated by the Internal Reorganization) or otherwise relating to, arising out of or resulting from the transactions contemplated by this Agreement (other than the Ancillary Agreements), each of which shall be in such form and dated as of such date as Trinity shall determine in its sole discretion.
 
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(106)      "Transition Services Agreement" means the transition services agreement by and between Trinity and Arcosa, dated as of the date hereof and substantially in the form attached as Exhibit C hereto.
 
(107)      "Trinity" has the meaning assigned to such term in the Preamble hereto.
 
(108)      "Trinity Accounts" has the meaning assigned to such term in Section 2.4(a).
 
 (109)     "Trinity Assets" means (without duplication):
 
(i)           the ownership interests (to the extent held by Trinity, Arcosa or any of their respective Affiliates immediately prior to the Effective Time) in each member of the Trinity Group;

(ii)          all Contracts to which Trinity, Arcosa or any of their Affiliates is a party or by which they or any of their respective Affiliates or any of their respective Assets are bound and any rights or claims (whether accrued or contingent) of Trinity, Arcosa, or any of their respective Affiliates arising thereunder, in each case, other than the Arcosa Contracts;

(iii)         subject to Article IX, any and all rights of any member of the Trinity Group under any Third Party Shared Policies to the extent related to the Trinity Business;

(iv)         the Assets listed or described on Schedule 1.1(109)(iv) and any and all Assets that are expressly contemplated by this Agreement or any Ancillary Agreement as Assets to be retained by, or assigned or transferred to, any member of the Trinity Group;

(v)          all Trinity Accounts, and, subject to the provisions of Section 2.4, all cash, Cash Equivalents, and securities on deposit in such accounts immediately prior to the Effective Time;

(vi)         any collateral securing any Trinity Liability immediately prior to the Effective Time; and

(vii)        any and all Assets (other than those Assets listed or described on Schedule 1.1(10)(v)) of the Parties or their respective Subsidiaries as of the Effective Time that are not Arcosa Assets.
 
(110)      "Trinity Board" has the meaning assigned to such term in the Recitals hereto.
 
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(111)      "Trinity Business" means (i) any and all businesses and operations of Trinity or any of its Subsidiaries (including the members of the Arcosa Group and the members of the Trinity Group) as conducted immediately prior to the Distribution, other than the Arcosa Business; and (ii) the business and operations of Business Entities acquired or established by or for any member of the Trinity Group after the Effective Time.
 
(112)      "Trinity Common Stock" has the meaning assigned to such term in the Recitals hereto.
 
(113)      "Trinity Disclosure" means any form, statement, schedule or other material (other than the Distribution Disclosure Documents) filed with or furnished to the SEC, any other Governmental Authority, or holders of any securities of any member of the Trinity Group, in each case, on or after the Effective Time by or on behalf of any member of the Trinity Group in connection with the registration, sale or distribution of securities or disclosure related thereto (including periodic disclosure obligations).
 
(114)      "Trinity General Liability Policies" has the meaning assigned to such term in Section 9.2.
 
(115)      "Trinity Group" means (i) Trinity and each of its Subsidiaries immediately following the Effective Time and (ii) each other Person who is or becomes an Affiliate of Trinity at or after the Effective Time, in each case, other than the members of the Arcosa Group.
 
(116)      "Trinity Group Employee" has the meaning assigned to such term in the Employee Matters Agreement.
 
(117)      "Trinity Indemnified Parties" has the meaning assigned to such term in Section 6.3.
 
(118)      "Trinity Insureds" has the meaning assigned to such term in Section 9.1.
 
(119)      "Trinity LCs" has the meaning assigned to such term in Section 2.11(d).
 
(120)      "Trinity Liabilities" shall mean:
 
(i)           any and all Liabilities expressly assumed or retained by the Trinity Group pursuant to this Agreement or any Ancillary Agreement, including any obligations and Liabilities of any member of the Trinity Group under this Agreement or the Ancillary Agreements;

(ii)          any and all Liabilities of Trinity, Arcosa, or any of their respective Affiliates, to the extent relating to, arising out of or resulting from:

(A)         the operation or conduct of the Trinity Business, as conducted at any time prior to, on or after the Effective Time (including any Liability to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of Trinity, Arcosa, or any of their respective Affiliates (whether or not such act or failure to act is or was within such Person's authority) with respect to the Trinity Business)

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(B)         the operation or conduct of any business conducted by any member of the Trinity Group at any time after the Effective Time (including any Liability to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of Trinity or any of its Affiliates after the Effective Time (whether or not such act or failure to act is or was within such Person's authority) with respect to the Trinity Business); or

(C)         any Trinity Assets (including but not limited to any Environmental Liabilities to the extent relating to, arising out of or resulting from any Trinity Assets, including those set forth on Schedule Section 1.1(120)(ii)(C)), whether arising before, on or after the Effective Time;

(iii)        any and all Liabilities relating to, arising out of or resulting from any indemnification obligations to any current or former director or officer of Trinity Group;

(iv)         any and all Liabilities relating to, arising out of or resulting from any discontinued or divested businesses or operations of Trinity and its Subsidiaries, including those set forth on Schedule 1.1(120)(iv)(A) (except (x) as otherwise assumed by the Arcosa Group pursuant to any Ancillary Agreement, (y) Liabilities related to an Arcosa Asset, or (z) the Liabilities set forth on Schedule 1.1(120)(iv)(B));

(v)          any and all Liabilities (including under applicable federal and state securities Laws) relating to, arising out of or resulting from: (A) the Distribution Disclosure Documents; (B) any Pre-Separation Disclosure; and (C) any Trinity Disclosure;

(vi)         any and all Liabilities relating to, arising out of or resulting from any Indebtedness of any member of the Trinity Group (whether incurred prior to, on or after the Effective Time), other than any Indebtedness relating to the Arcosa Financing Arrangements;

(vii)       for the avoidance of doubt, and without limiting any other matters that may constitute Trinity Liabilities, any and all Liabilities relating to, arising out of or resulting from any Proceedings primarily related to the Trinity Business or any Trinity Asset (except to the extent relating to or resulting from the Arcosa Business, the Arcosa Assets or the other Arcosa Liabilities) including such Proceedings listed or described on Schedule 1.1(120)(vii);

(viii)      any and all accounts payable primarily related to or arising out of the Trinity Business; and

(ix)         the Liabilities listed or described on Schedule 1.1(120)(ix).
 
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Notwithstanding the foregoing, the Trinity Liabilities shall in no event include any Liabilities (including Liabilities under Arcosa Contracts and Arcosa Liabilities) that are expressly contemplated by this Agreement or any Ancillary Agreement (or the schedules hereto or thereto) as Liabilities to be retained or assumed by any member of the Arcosa Group, including any Liabilities set forth on Schedule 1.1(22)(viii), or for which any member of the Arcosa Group is liable pursuant to this Agreement or such Ancillary Agreement.
 
(121)      "Trinity Transferred Entities" has the meaning assigned to such term in Section 2.2(a).
 
Section 1.2           References; Interpretation.  References in this Agreement to any gender include references to all genders, and references to the singular include references to the plural and vice versa. Any action to be taken by the board of directors of a Party may be taken by a committee of the board of directors of such Party if properly delegated by the board of directors of a Party to such committee. Unless the context otherwise requires:
 
(a)          the words "include", "includes" and "including" when used in this Agreement shall be deemed to be followed by the phrase "without limitation";
 
(b)          references in this Agreement to Articles, Sections, Annexes, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Annexes, Exhibits and Schedules to, this Agreement;
 
(c)          the words "hereof", "hereby" and "herein" and words of similar meaning when used in this Agreement refer to this Agreement in its entirety and not to any particular Article, Section or provision of this Agreement;
 
(d)          references in this Agreement to any time shall be to Dallas, Texas time unless otherwise expressly provided herein; and
 
(e)          as described in Section 10.2, to the extent that the terms and conditions of any Schedule hereto conflicts with the express terms of the body of this Agreement or any Ancillary Agreement, the terms of such Schedule shall control; it being understood that the Parties intend to include in the Schedules hereto any exceptions to the general rules described in the body of this Agreement and to give full effect to such exceptions, with respect to the matters expressly set forth therein.
 
Section 1.3           Effective Time.  This Agreement shall be effective as of the Effective Time.
 
Section 1.4           Other Matters.  As described in more detail in, but subject to the terms and conditions of, Section 10.1 and Section 10.2, the Tax Matters Agreement, the Employee Matters Agreement and the Transition Services Agreement will govern Trinity's and Arcosa's respective rights, responsibilities and obligations after the Distribution with respect to the matters set forth in such Ancillary Agreement, except as expressly set forth in this Agreement or any other Ancillary Agreement.
 
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ARTICLE II

THE SEPARATION
 
Section 2.1           General.  Subject to the terms and conditions of this Agreement, including Section 4.3 and Section 4.4, the Parties shall use, and shall cause their respective Affiliates to use, their respective commercially reasonable efforts to consummate the transactions contemplated hereby, a portion of which have already been implemented prior to the date hereof.  It is the intent of the Parties that prior to consummation of the Distribution, Trinity, Arcosa and their respective Subsidiaries shall be reorganized, to the extent necessary, such that immediately following the consummation of such reorganization, subject to Section 2.6 and the provisions of any Ancillary Agreement, (i) all of Trinity's and its Subsidiaries' right, title and interest in and to the Arcosa Assets will be owned or held by a member or members of the Arcosa Group, the Arcosa Business will be conducted by the members of the Arcosa Group and the Arcosa Liabilities will be assumed directly or indirectly by (or retained by) a member of the Arcosa Group; and (ii) all of Trinity's and its Subsidiaries' right, title and interest in and to the Trinity Assets will be owned or held by a member or members of the Trinity Group, the Trinity Business will be conducted by the members of the Trinity Group and the Trinity Liabilities will be assumed directly or indirectly by (or retained by) a member of the Trinity Group.  Further, it is the intent of the Parties that the direct assumption by Arcosa of Arcosa Liabilities is made in connection with the Separation, including the transfer of the Arcosa Assets to Arcosa.
 
Section 2.2           The Separation.  At or prior to the Effective Time, to the extent not already completed and subject to the terms of the Ancillary Agreements:
 
(a)          Trinity shall and hereby does, on behalf of itself and the other members of the Trinity Group, as applicable, transfer, contribute, assign, distribute, and convey, or cause to be transferred, contributed, assigned, distributed and conveyed ("Transfer"), to Arcosa or another member of the Arcosa Group, and Arcosa or such member of the Arcosa Group shall and hereby does accept from Trinity and the applicable members of the Trinity Group, all of Trinity's and the other members' of the Trinity Group's respective direct or indirect rights, title and interest in and to the Arcosa Assets, including all of the outstanding shares of capital stock or other ownership interests in the entities listed on Schedule 2.2(a) (the "Trinity Transferred Entities") (it being understood that if any Arcosa Asset shall be held by a Subsidiary of a Trinity Transferred Entity, such Arcosa Asset may be Transferred for all purposes hereunder as a result of the Transfer of the equity interests in such Trinity Transferred Entity to Arcosa or another member of the Arcosa Group);
 
(b)          Arcosa shall and hereby does, on behalf of itself and the other members of the Arcosa Group, as applicable, Transfer to Trinity or another member of the Trinity Group, and Trinity or such member of the Trinity Group shall and hereby does accept from Arcosa and the applicable members of the Arcosa Group, all of Arcosa's and the other members' of the Arcosa Group's respective direct or indirect rights, title and interest in and to the Trinity Assets held by Arcosa or a member of the Arcosa Group, including all of the outstanding shares of capital stock or other ownership interests in the entities listed on Schedule 2.2(b) (the "Arcosa Transferred Entities") (it being understood that if any Trinity Asset shall be held by a Subsidiary of an Arcosa Transferred Entity, such Trinity Asset may be Transferred for all purposes hereunder as a result of the Transfer of the equity interests in such Arcosa Transferred Entity to Trinity or another member of the Trinity Group);
 
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(c)          (i) Trinity shall, or shall cause another member of the Trinity Group to, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms, all of the Trinity Liabilities and (ii) Arcosa shall, or shall cause another member of the Arcosa Group to, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms, all the Arcosa Liabilities, in each case regardless of (A) when or where such Liabilities arose or arise, (B) where or against whom such Liabilities are asserted or determined, (C) whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of law, willful misconduct, bad faith, fraud or misrepresentation by any member of the Trinity Group or the Arcosa Group, as the case may be, or any of their past or present respective directors, officers, employees, or agents, (D) which entity is named in any Proceeding associated with any Liability and (E) whether the facts on which they are based occurred prior to, on or after the date hereof;
 
Section 2.3           Settlement of Intergroup Indebtedness.  Each of Trinity or any member of the Trinity Group, on the one hand, and Arcosa or any member of the Arcosa Group, on the other hand, will, repay, defease, capitalize, cancel, forgive, discharge, extinguish, assign, discontinue or otherwise cause to be satisfied, with respect to the other Party, as the case may be, all Intergroup Indebtedness owed or owed by the other Party on or prior to the Distribution, except as otherwise agreed to in good faith by the Parties in writing on or after the date hereof, it being understood and agreed by the Parties that the foregoing shall be subject to Section 2.11.
 
Section 2.4           Bank Accounts; Cash Balances.
 
(a)          The Parties agree to take, or cause the members of their respective Groups to take, at the Effective Time (or such earlier time as Trinity may determine), all actions necessary to amend all Contracts governing each bank and brokerage account owned by Arcosa or any other member of the Arcosa Group (the "Arcosa Accounts") so that such Arcosa Accounts, if currently linked (whether by automatic withdrawal, automatic deposit, or any other authorization to transfer funds from or to, hereinafter "linked") to any bank or brokerage account owned by Trinity or any other member of the Trinity Group (the "Trinity Accounts") are de-linked from the Trinity Accounts.  From and after the Effective Time, no Trinity Group Employee shall have any authority to access or control any Arcosa Account, except as provided for through the Transition Services Agreement.
 
(b)          The Parties agree to take, or cause the members of their respective Groups to take, at the Effective Time (or such earlier time as Trinity may determine), all actions necessary to amend all Contracts governing the Trinity Accounts so that such Trinity Accounts, if currently linked to an Arcosa Account, are de-linked from the Arcosa Accounts.  From and after the Effective Time, no Arcosa Group Employee shall have any authority to access or control any Trinity Account, except as may be provided for through the Transition Services Agreement (if applicable).
 
(c)          The Parties intend that, following consummation of the actions contemplated by Section 2.4(a) and Section 2.4(b), there will continue to be in place a centralized cash management system pursuant to which the Arcosa Accounts will be managed centrally and funds collected will be transferred into one or more centralized accounts maintained by members of the Arcosa Group.
 
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(d)          The Parties intend that, following consummation of the actions contemplated by Section 2.4(a) and Section 2.4(b), there will continue to be in place a centralized cash management system pursuant to which the Trinity Accounts will be managed centrally and funds collected will be transferred into one or more centralized accounts maintained by members of the Trinity Group.
 
(e)          With respect to any outstanding checks issued by Trinity, Arcosa, or any of their respective Subsidiaries prior to the Effective Time, such outstanding checks shall be honored following the Effective Time by the member of the applicable Group owning the account on which the check is drawn.
 
(f)          As between the Parties hereto and the members of their respective Groups, all payments and reimbursements received after the Effective Time by either Party (or member of its Group) that relate to a Business, Asset or Liability of the other Party (or member of its Group), shall be held by such Party in trust for the use and benefit of the Party entitled thereto and, promptly upon receipt by such Party of any such payment or reimbursement, such Party shall pay over, or shall cause the applicable member of its Group to pay over to the other Party the amount of such payment or reimbursement without right of set-off.
 
(g)          The Parties agree that, prior to the Effective Time, Trinity or any other member of the Trinity Group may withdraw any and all cash or Cash Equivalents from the Arcosa Accounts for the benefit of Trinity or any other member of the Trinity Group.  Notwithstanding the foregoing, it is the intention of Trinity and Arcosa that, at the time of the Distribution, Arcosa shall have a minimum cash or Cash Equivalents balance, as would be reflected on the unaudited consolidated balance sheet of the Arcosa Group as of the close of business on the date prior to the Distribution Date, of $200,000,000. All cash held by any member of the Arcosa Group as of the Distribution shall be an Arcosa Asset and all cash held by any member of the Trinity Group as of the Distribution shall be a Trinity Asset.
 
Section 2.5           Limitation of Liability; Termination of Agreements.
 
(a)          Except as otherwise expressly provided in this Agreement, no Party or any member of such Party's Group shall have any Liability to any other Party or any member of each other Party's Group in the event that any Information exchanged or provided pursuant to this Agreement which is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate.
 
(b)          Except as provided in Section 2.3, Section 2.11 or as set forth in subsection (c) below, no Party or any member of such Party's Group shall have any Liability to any other Party or any member of such other Party's Group based upon, arising out of or resulting from any Contract, arrangement, course of dealing or understanding, whether or not in writing, entered into or existing at or prior to the Effective Time, and each Party hereby terminates, and shall cause all members in its Group to terminate, any and all Contracts, arrangements, course of dealings or understandings between it or any members in its Group, on the one hand, and the other Party, or any members of its Group, on the other hand, effective as of immediately prior to the Effective Time, and any such Liability, whether or not in writing, is hereby irrevocably cancelled, released and waived effective as of the Effective Time. No such terminated Contract, arrangement, course of dealing or understanding (including any provision thereof which purports to survive termination) shall be of any further force or effect after the Effective Time.  Each Party shall, at the reasonable request of the other Party, take, or cause to be taken, any reasonably requested actions necessary to effect the foregoing.
 
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(c)          The provisions of Section 2.5(b) shall not apply to any of the following Contracts, arrangements, course of dealings or understandings (or to any of the provisions thereof):
 
(1)          this Agreement, the Ancillary Agreements, the Transfer Documents, the Continuing Arrangements and any Contract entered into in connection herewith or in order to consummate the transactions contemplated hereby or thereby;

(2)          any Contracts, arrangements, course of dealings or understandings to which any Third Party is a party (it being understood that to the extent that the rights and obligations of the Parties and the members of their respective Groups under any such Contracts, arrangements, course of dealings or understandings constitute Trinity Assets, Arcosa Assets, Trinity Liabilities, or Arcosa Liabilities, such Contracts, arrangements, course of dealings or understandings shall be assigned or retained pursuant to this Article II); and

(3)          any Contracts, arrangements, commitments or understandings to which any non-wholly owned Subsidiary of Trinity or Arcosa is a party.
 
(d)          If any Contract, arrangement, course of dealing or understanding is terminated pursuant to Section 2.5(b) and, but for the mistake or oversight of either Party, would have been listed on Schedule 1.1(34) as a Continuing Arrangement as it is reasonably necessary for such affected Party to be able to continue to operate its businesses in substantially the same manner in which such businesses were operated prior to the Effective Time, then, at the request of such affected Party made within twelve (12) months following the Effective Time, the Parties shall negotiate in good faith to determine whether and to what extent (including the terms and conditions relating thereto), if any, notwithstanding such termination, such Contract, arrangement, course of dealing or understanding should continue following the Effective Time; provided, however, any Party may determine, in its sole discretion, not to re-instate or otherwise continue any such Contract, arrangement, course of dealing or understanding.
 
Section 2.6           Delayed Transfer of Assets or Liabilities.
 
(a)          To the extent that any Transfers or assumptions contemplated by this Article II shall not have been consummated at or prior to the Effective Time, the Parties shall cooperate to effect such Transfers or assumptions as promptly following the Effective Time as shall be practicable.  Nothing herein shall be deemed to require or constitute the Transfer of any Assets or the assumption of any Liabilities which by their terms or operation of Law cannot be Transferred or assumed; provided, however, that the Parties shall, and shall cause the respective members of their Groups to, cooperate and use commercially reasonable efforts to seek to obtain any necessary Consents or Governmental Approvals for the Transfer of all Assets and assumption of all Liabilities contemplated to be Transferred or assumed pursuant to this Article II.
 
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(b)          In the event that any such Transfer of Assets or assumption of Liabilities has not been consummated as of the Effective Time (any such Asset or Liability, a "Delayed Transfer Asset or Liability"), then from and after the Effective Time, (i) the Party (or relevant member in its Group) retaining such Asset shall thereafter hold (or shall cause such member in its Group to hold) such Asset for the use and benefit of the Party (or relevant member in its Group) entitled thereto (at the expense of the Person entitled thereto) and (ii) the Party intended to assume such Liability shall, or shall cause the applicable member of its Group to, pay or reimburse the Party (or the relevant member of its Group) retaining such Liability for all amounts paid or incurred in connection with the retention of such Liability. In addition, the Party retaining such Asset or Liability (or relevant member of its Group) shall (or shall cause such member in its Group to) treat, insofar as reasonably possible and to the extent permitted by applicable Law, such Delayed Transfer Asset or Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the Party to which such Delayed Transfer Asset or Liability is to be transferred or assumed in order to place such Party, insofar as reasonably possible, in the same position as if such Asset or Liability had been transferred or assumed as contemplated hereby and so that all the benefits and burdens relating to such Asset or Liability, including possession, use, risk of loss, potential for income and gain, and dominion, control and command over such Asset or Liability, are to inure from and after the Effective Time to the relevant member of the Trinity Group or the Arcosa Group, as the case may be, entitled to the receipt of such Asset or Liability. In furtherance of the foregoing, the Parties agree that, as of the Effective Time, each Party shall be deemed to have acquired complete and sole beneficial ownership over all of such delayed Assets, together with all rights, powers and privileges incident thereto, and shall be deemed to have assumed in accordance with the terms of this Agreement all of the Liabilities, and all duties, obligations and responsibilities incident thereto, which such Party is entitled to acquire or required to assume pursuant to the terms of this Agreement.
 
(c)          If and when the Consents, Governmental Approvals and/or conditions, the absence or non-satisfaction of which caused the deferral of transfer of any Delayed Transfer Asset or Liability pursuant to this Section 2.6, are obtained or satisfied, the Transfer or novation of the applicable Delayed Transfer Asset or Liability shall be effected without further consideration in accordance with and subject to the terms of this Agreement (including Section 2.2) and/or the applicable Ancillary Agreement as promptly as practicable after the receipt of such Consents, Governmental Approvals and/or absence or satisfaction of conditions.
 
(d)          The Party (or relevant member of its Group) retaining any Delayed Transfer Asset or Liability shall (i) not be obligated, in connection with the foregoing, to expend any money unless the necessary funds are advanced, or agreed in advance to be reimbursed by the Party (or relevant member of its Group) entitled to such Asset, other than reasonable attorneys' fees and recording or similar fees, all of which shall be promptly reimbursed by the Party (or relevant member of its Group) entitled to such Asset and (ii) be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such retained Asset or Liability, as the case may be.
 
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(e)          Until the two year anniversary of this Agreement, if either Party determines that it (or any member of its Group) owns any Asset that was allocated by the terms of this Agreement to be Transferred to the other Party at the Effective Time or that is agreed by such Party and the other Party in their good faith judgment to be an Asset that more properly belongs to the other Party or an Asset that such other Party or Subsidiary was intended to have the right to continue to use, then the Party owning such Asset shall as applicable (i) Transfer any such Asset to the Party (or relevant member of its Group) identified as the appropriate transferee and following such Transfer, such Asset shall be an Arcosa Asset or Trinity Asset, as the case may be, or (ii) grant such mutually agreeable rights with respect to such Asset to permit such continued use, subject to, and consistent with this Agreement, including with respect to assumption of associated Liabilities.  In connection with such Transfer, the receiving party shall assume all Liabilities related to such Asset.
 
(f)          After the Effective Time, each Party (or any member of its Group) may receive mail, packages and other communications properly belonging to the other Party (or any member of its Group). Accordingly, at all times after the Effective Time, each Party authorizes the other Party (or any member of its Group) to receive and open all mail, packages and other communications received by such Party (or any member of its Group) and not unambiguously intended for such first Party, any member of such first Party's Group or any of their respective officers, directors, employees or other agents, and to the extent that they do not relate to the business of the receiving Party, the receiving party shall promptly deliver such mail, telegrams, packages or other communications (or, in case the same relate to both businesses, copies thereof) to the other Party as provided for in Section 10.6. The provisions of this Section 2.6(f) are not intended to, and shall not, be deemed to constitute an authorization by any Party (or any member of its Group) to permit the other to accept service of process on its (or its members') behalf and no Party (or any member of its Group) is or shall be deemed to be the agent of the other Party (or any member of its Group) for service of process purposes.
 
(g)          For the avoidance of doubt, nothing in this Section 2.6 shall apply to Shared Contracts, which shall be governed by Section 2.8.
 
Section 2.7           Transfer Documents. In connection with, and in furtherance of, the Transfers of Assets and the acceptance and assumptions of Liabilities contemplated by this Agreement, the Parties shall execute or cause to be executed, at or prior to the Effective Time, or after the Effective Time with respect to Section 2.6, by the appropriate entities, the Transfer Documents necessary to evidence the valid and effective assumption by the applicable Party (or any member of its Group) of its assumed Liabilities, and the valid Transfer to the applicable Party (or any member of its Group) of all rights, titles and interests in and to its accepted Assets, including the transfer of real property with quit claim deeds, as may be appropriate.
 
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Section 2.8           Shared Contracts.

(a)          With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties as follows:
 
(i)           first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be responsible for such Liability;

(ii)          second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the remaining term of the Shared Contract, measured starting as of the date of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party's or Group's breach of the relevant Shared Contract.

(b)          Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if Trinity or any member of the Trinity Group, on the one hand, or Arcosa or any member of the Arcosa Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, Trinity, on the one hand, or Arcosa, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such benefit or payment to the other Party.
 
(c)          Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will be separated or assigned to a member of the Trinity Group or the Arcosa Group, as applicable. The Parties shall use their commercially reasonable efforts to separate the Shared Contracts which are identified on Schedule 2.8(c)(i) into separate Contracts between the appropriate Third Party and either (i) Arcosa or a member of the Arcosa Group or (ii) Trinity or a member of the Trinity Group. Trinity or a member of the Trinity Group will use commercially reasonable efforts to assign the rights and obligations, but only to the extent relating to the Arcosa Business, under the Shared Contracts which are identified on Schedule 2.8(c)(ii) to Arcosa or a member of the Arcosa Group. The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of six (6) months following the Effective Time (with no obligation on the part of either Party to pay any costs or fees with respect to such assistance) in effecting the separation or assignment of such Shared Contracts as described above.
 
(d)          Each of Trinity and Arcosa shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party's Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
 
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Section 2.9           Further Assurances.

(a)          In addition to and without limiting the actions specifically provided for elsewhere in this Agreement, each of the Parties shall cooperate with each other and use (and will cause the relevant member of its Group to use) commercially reasonable efforts, prior to, on and after the Effective Time, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on its part under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements.
 
(b)          Without limiting the foregoing, each Party shall cooperate with the other Party, from and after the Effective Time, to execute and deliver, or use commercially reasonable efforts to cause to be executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and to make all filings with, and to obtain all Consents and/or Governmental Approvals, and to take all such other actions as such Party may reasonably be requested to take by any other Party from time to time, consistent with the terms of this Agreement and the Ancillary Agreements, in order to effectuate the provisions and purposes of this Agreement and the Ancillary Agreements and the Transfers of the applicable Assets and the assignment and assumption of the applicable Liabilities and the other transactions contemplated hereby and thereby.  Without limiting the foregoing, each Party will, at the reasonable request of the other Party, take such other actions as may be reasonably necessary to vest in such other Party good and marketable title to the Assets allocated to such Party under this Agreement or any of the Ancillary Agreements, free and clear of any Security Interest, if and to the extent it is practicable to do so.
 
(c)          On or prior to the Distribution Date, Trinity and Arcosa in their respective capacities as direct or indirect stockholders of their respective Subsidiaries, shall each approve or ratify any actions that are reasonably necessary or desirable to be taken by any Subsidiary of Trinity or Subsidiary of Arcosa, as applicable, to effectuate the transactions contemplated by this Agreement and the Ancillary Agreements.
 
Section 2.10          Novation of Liabilities; Consents.
 
(a)          Each Party, at the request of the other Party, shall use commercially reasonable efforts to obtain, or to cause to be obtained, any Consent, release, substitution or amendment required to novate or assign all obligations under Contracts or other Liabilities for which a member of such Party's Group and a member of the other Party's Group are jointly or severally liable and that do not constitute Liabilities of such other Party as provided in this Agreement, or to obtain in writing the unconditional release of all parties to such arrangements (other than any member of the Group who assumed or retained such Liability as set forth in this Agreement), so that, in any such case, the members of the applicable Group will be solely responsible for such Liabilities; provided, however, that no Party shall be obligated to pay any consideration therefor to any Third Party from whom any such Consent, substitution or amendment is requested (unless such Party is fully reimbursed by the requesting Party).
 
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(b)          If the Parties are unable to obtain, or to cause to be obtained, any such required Consent, release, substitution or amendment, the other Party or a member of such other Party's Group shall continue to be bound by such Contract, license or other obligation that does not constitute a Liability of such other Party and, unless not permitted by Law or the terms thereof, as agent or subcontractor for such Party, the Party or member of such Party's Group who assumed or retained such Liability as set forth in this Agreement (the "Liable Party") shall, or shall cause a member of its Group to, pay, perform and discharge fully all the obligations or other Liabilities of such other Party or member of such other Party's Group thereunder from and after the Effective Time; provided, however, that the other Party shall not be obligated to extend, renew or otherwise cause such Contract, license or other obligation to remain in effect beyond the term in effect as of the Effective Time.  The Liable Party shall indemnify and defend each other Party and the members of such other Party's Group against any and all Liabilities arising in connection therewith; provided, however, that the Liable Party shall have no obligation to indemnify the other Party or any member of such other Party's Group with respect to any matter to the extent that such other Party has engaged in any knowing violation of Law or fraud in connection therewith.  The other Party shall, without further consideration, promptly pay and remit, or cause to be promptly paid or remitted, to the Liable Party or to another member of the Liable Party's Group, all money, rights and other consideration received by it or any member of its Group in respect of such performance by the Liable Party (unless any such consideration is an Asset of such other Party pursuant to this Agreement).  If and when any such Consent, release, substitution or amendment shall be obtained or such agreement, lease, license or other rights or obligations shall otherwise become assignable or able to be novated, the other Party shall promptly assign, or cause to be assigned, all rights, obligations and other Liabilities thereunder of any member of such other Party's Group to the Liable Party or to another member of the Liable Party's Group without payment of any further consideration and the Liable Party, or another member of such Liable Party's Group, without the payment of any further consideration, shall assume such rights and obligations and other Liabilities.
 
Section 2.11          Guarantees and Letters of Credit.
 
(a)          Trinity shall (with the commercially reasonable cooperation of Arcosa and the other members of the Arcosa Group) use its commercially reasonable efforts, if so requested by Arcosa, to have any member of the Arcosa Group removed as guarantor of, or obligor for, any Trinity Liability, including with respect to those guarantees and obligations listed or described on Schedule 2.11(a), to the extent that they relate to Trinity Liabilities
 
(b)          Arcosa shall (with the commercially reasonable cooperation of Trinity and the other members of the Trinity Group) use its commercially reasonable efforts, if so requested by Trinity, to have any member of the Trinity Group removed as guarantor of, or obligor for, any Arcosa Liability, including with respect to those guarantees listed or described on Schedule 2.11(b), to the extent that they relate to the Arcosa Liabilities (each of the releases referred to in clauses (a) and (b) of this Section 2.11, a "Guaranty Release").
 
(c)          If Trinity or Arcosa is unable to obtain, or to cause to be obtained, any removal of any guarantee or other obligation as set forth in clauses (a) and (b) of this Section 2.11, (i) the relevant beneficiary of such guarantee or obligation shall indemnify and defend the guarantor or obligor for any Indemnifiable Loss arising from or relating thereto (in accordance with the provisions of Article VI) and shall or shall cause one of its Subsidiaries, as agent or subcontractor for such guarantor or obligor to pay, perform and discharge fully all the obligations or other Liabilities of such guarantor or obligor thereunder, (ii) the relevant beneficiary of such guarantee or obligation shall pay to the guarantor or obligor a fee payable at the end of each calendar quarter based on a rate of 0.65% per annum on the average outstanding amount of the obligation underlying such guarantee or obligation during such quarter and (iii) each of Trinity and Arcosa shall not renew or extend the term of, increase its obligations under, or transfer to a Third Party, any loan, guarantee, lease, contract or other obligation for which the other Party is or may be liable unless all obligations of such other Party and the other members of such Party's Group with respect thereto are thereupon terminated by documentation reasonably satisfactory in form and substance to such other Party; provided, however, with respect to leases, in the event a Guaranty Release is not obtained and such first Party wishes to extend the term of such guaranteed lease then such first Party shall have the option of extending the term if it provides such security as is reasonably satisfactory to the guarantor under such guaranteed lease.
 
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(d)          Trinity and Arcosa shall cooperate and Arcosa shall use commercially reasonable efforts to replace all letters of credit issued by Trinity or other members of the Trinity Group on behalf of or in favor of any member of the Arcosa Group or the Arcosa Business (the "Trinity LCs") as promptly as practicable with letters of credit from Arcosa or a member of the Arcosa Group as of the Effective Time.  With respect to any Trinity LCs that remain outstanding after the Effective Time (i) Arcosa shall, and shall cause the members of the Arcosa Group to, indemnify and defend the Trinity Indemnified Party for any Liabilities arising from or relating to the such letters of credit, including, without limitation, any fees in connection with the issuance and maintenance thereof and any funds drawn by (or for the benefit of), or disbursements made to, the beneficiaries of such Trinity LCs in accordance with the terms thereof, (ii) Arcosa shall pay to Trinity a fee payable at the end of each calendar quarter based on a rate of 0.65% per annum on the average outstanding balance during such quarter of any outstanding Trinity LCs and (iii) without the prior written consent of Trinity, Arcosa shall not, and shall not permit any member of the Arcosa Group to, enter into, renew or extend the term of, increase its obligations under, or transfer to a Third Party, any loan, lease, Contract or other obligation in connection with which Trinity or any member of the Trinity Group has issued any letters of credit which remain outstanding. Neither Trinity nor any member of the Trinity Group will have any obligation to renew any letters of credit issued on behalf of or in favor of any member of the Arcosa Group or the Arcosa Business after the expiration of any such letter of credit.
 
Section 2.12         DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
 
(a)          EACH OF TRINITY (ON BEHALF OF ITSELF AND EACH OTHER MEMBER OF THE TRINITY GROUP), AND ARCOSA (ON BEHALF OF ITSELF AND EACH OTHER MEMBER OF THE ARCOSA GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IN ANY ANCILLARY AGREEMENT, TRANSFER DOCUMENT, OR IN ANY CONTINUING ARRANGEMENT, NO PARTY TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT, TRANSFER DOCUMENT, OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED HEREBY OR THEREBY, IS REPRESENTING OR WARRANTING IN ANY WAY, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, AS TO THE ASSETS, BUSINESSES OR LIABILITIES CONTRIBUTED, TRANSFERRED, DISTRIBUTED, OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS OR GOVERNMENTAL APPROVALS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, AS TO NO INFRINGEMENT, VALIDITY OR ENFORCEABILITY OR ANY OTHER MATTER CONCERNING, ANY ASSETS OR BUSINESS OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ANY ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, DISTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF.  EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN, IN ANY TRANSFER DOCUMENT OR IN ANY ANCILLARY AGREEMENT, ALL ASSETS ARE BEING TRANSFERRED ON AN "AS IS," "WHERE IS" BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM) AND THE RESPECTIVE TRANSFEREES SHALL BEAR ALL ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD AND MARKETABLE TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST, AND (II) ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS, CONTRACTS, OR JUDGMENTS ARE NOT COMPLIED WITH.  ALL WARRANTIES OF HABITABILITY, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARISING UNDER THE UNIFORM COMMERCIAL CODE (OR SIMILAR FOREIGN LAWS), ARE HEREBY DISCLAIMED.
 
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(b)          Each of Trinity (on behalf of itself and each member of the Trinity Group) and Arcosa (on behalf of itself and each member of the Arcosa Group) further understands and agrees that if the disclaimer of express or implied representations and warranties contained in Section 2.12(a) is held unenforceable or is unavailable for any reason under the Laws of any jurisdiction outside the United States or if, under the Laws of a jurisdiction outside the United States, both Trinity or any member of the Trinity Group, on the one hand, and Arcosa or any member of the Arcosa Group, on the other hand, are jointly or severally liable for any Trinity Liability or any Arcosa Liability, respectively, then, the Parties intend that, notwithstanding any provision to the contrary under the Laws of such foreign jurisdictions, the provisions of this Agreement and the Ancillary Agreements (including the disclaimer of all representations and warranties, allocation of Liabilities among the Parties and their respective Subsidiaries, releases, indemnification and contribution of Liabilities) shall prevail for any and all purposes among the Parties and their respective Subsidiaries.
 
(c)          Trinity hereby waives compliance by itself and each and every member of the Trinity Group with the requirements and provisions of any "bulk-sale" or "bulk transfer" Laws of any jurisdiction that may otherwise be applicable with respect to the Transfer or sale of any or all of the Trinity Assets to Trinity or any member of the Trinity Group.
 
(d)          Arcosa hereby waives compliance by itself and each and every member of the Arcosa Group with the requirements and provisions of any "bulk-sale" or "bulk transfer" Laws of any jurisdiction that may otherwise be applicable with respect to the Transfer or sale of any or all of the Arcosa Assets to Arcosa or any member of the Arcosa Group.
 
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ARTICLE III

CERTAIN ACTIONS PRIOR TO THE DISTRIBUTION
 
Section 3.1           Separation.  The Parties agree to take, or cause the members of their respective Groups to take, prior to the Distribution, all actions necessary, subject to the terms of this Agreement, to effectuate the Separation as set forth in Article II.
 
Section 3.2           Certificate of Incorporation; Bylaws. At or prior to the Effective Time, all necessary actions shall be taken to adopt the form of amended and restated certificate of incorporation and amended and restated by-laws filed by Arcosa with the SEC as exhibits to the Registration Statement.
 
Section 3.3           Directors.  At or prior to the Effective Time, Trinity shall take all necessary action to cause the board of directors of Arcosa to consist of the individuals who are identified in the Registration Statement (including the Information Statement) at the Effective Time as being directors of Arcosa.
 
Section 3.4           Resignations.
 
(a)          Subject to Section 3.4(b), at or prior to the Effective Time, (i) Trinity shall cause all its employees and any employees of its Affiliates who will not become an Arcosa Group Employee immediately following the Effective Time to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the Arcosa Group in which they serve, and (ii) Arcosa shall cause all Arcosa Group Employees to resign, effective as of the Effective Time, from all positions as officers or directors of any member of the Trinity Group in which they serve.
 
(b)          No Person shall be required by any Party to resign from any position or office with another Party if such Person is disclosed in the Information Statement as the Person who is to hold such position or office following the Distribution.
 
Section 3.5           Ancillary Agreements.  At or prior to the Effective Time, Trinity and Arcosa shall enter into, and, if applicable, shall cause a member or members of their respective Groups to enter into, the Ancillary Agreements.
 
Section 3.6           Arcosa Financing Arrangements. Prior to the Distribution Date, Arcosa shall enter into the Arcosa Financing Arrangements, on such terms and conditions as agreed by Trinity (including the amount that shall be borrowed pursuant to the Arcosa Financing Arrangements and the interest rates for such borrowings). Trinity and Arcosa shall participate in the preparation of all materials and presentations as may be reasonably necessary to secure funding pursuant to the Arcosa Financing Arrangements, including rating agency presentations necessary to obtain the requisite ratings needed to secure the financing under any of the Arcosa Financing Arrangements. The Parties agree that Arcosa, and not Trinity, shall be ultimately responsible for all costs and expenses incurred by, and for reimbursement of such costs and expenses to, any member of the Trinity Group or Arcosa Group associated with the Arcosa Financing Arrangements.
 
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ARTICLE IV

THE DISTRIBUTION
 
Section 4.1           The Distribution.  Subject to the satisfaction or waiver of the conditions, covenants and other terms set forth in this Agreement and the Ancillary Agreements, on or prior to the Distribution Date, in connection with the Separation, including the Transfer of the Arcosa Assets to Arcosa in the Separation whenever made, Arcosa shall issue to Trinity as a stock dividend such number of shares of Arcosa Common Stock (or Trinity and Arcosa shall take or cause to be taken such other appropriate actions to ensure that Trinity has the requisite number of shares of Arcosa Common Stock) as may be requested by Trinity after consultation with Arcosa in order to effect the Distribution, which shares as of the date of issuance shall represent (together with such shares previously held by Trinity) all of the issued and outstanding shares of Arcosa Common Stock.  Subject to conditions and other terms in this Article IV, Trinity will cause the Agent on the Distribution Date to make the Distribution, including by crediting the appropriate number of shares of Arcosa Common Stock to book entry accounts for each holder of Arcosa Common Stock or designated transferee or transferees of such holder of Arcosa Common Stock.  For stockholders of Trinity who own Trinity Common Stock through a broker or other nominee, their shares of Arcosa Common Stock will be credited to their respective accounts by such broker or nominee.  No action by any holder of Trinity Common Stock on the Record Date shall be necessary for such stockholder (or such stockholder's designated transferee or transferees) to receive the applicable number of shares of Arcosa Common Stock (and, if applicable, cash in lieu of any fractional shares) such stockholder is entitled to in the Distribution.
 
Section 4.2           Fractional Shares.  Trinity stockholders who, after aggregating the number of shares of Arcosa Common Stock (or fractions thereof) to which such stockholder would be entitled on the Record Date, would be entitled to receive a fraction of a share of Arcosa Common Stock in the Distribution, will receive cash in lieu of fractional shares.  Fractional shares of Arcosa Common Stock will not be distributed in the Distribution nor credited to book-entry accounts.  The Agent shall, as soon as practicable after the Distribution Date (a) determine the number of whole shares and fractional shares of Arcosa Common Stock allocable to each other holder of record or beneficial owner of Trinity Common Stock as of close of business on the Record Date, (b) aggregate all such fractional shares into whole shares and sell the whole shares obtained thereby in open market transactions at then prevailing trading prices on behalf of holders who would otherwise be entitled to fractional share interests, and (c) distribute to each such holder, or for the benefit of each such beneficial owner, such holder's or owner's ratable share of the net proceeds of such sale, based upon the average gross selling price per share of Arcosa Common Stock after making appropriate deductions for any amount required to be withheld for United States federal income tax purposes.  Arcosa shall bear the cost of brokerage fees and transfer taxes incurred in connection with these sales of fractional shares, which such sales shall occur as soon after the Distribution Date as practicable and as determined by the Agent.  None of Trinity, Arcosa or the applicable Agent will guarantee any minimum sale price for the fractional shares of Arcosa Common Stock.  Neither Trinity nor Arcosa will pay any interest on the proceeds from the sale of fractional shares.  The Agent will have the sole discretion to select the broker-dealers through which to sell the aggregated fractional shares and to determine when, how and at what price to sell such shares.  Neither the Agent nor the selected broker-dealers will be Affiliates of Trinity or Arcosa.
 
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Section 4.3           Actions in Connection with Distribution.
 
(a)          Arcosa shall file such amendments and supplements to the Registration Statement as Trinity may reasonably request, and such amendments as may be necessary in order to cause the same to become and remain effective as required by Law, including filing such amendments and supplements to the Registration Statement and Information Statement as may be required by the SEC or federal, state or foreign securities Laws.  Trinity shall mail to the holders of Trinity Common Stock, at such time on or prior to the Distribution Date as Trinity shall determine, the Information Statement included in the Registration Statement, as well as any other information concerning Arcosa, the Arcosa Business, operations and management, the Separation and such other matters as Trinity shall reasonably determine are necessary and as may be required by Law.
 
(b)          Arcosa shall also prepare, file with the SEC and cause to become effective any registration statements or amendments thereof required to effect the establishment of, or amendments to, any employee benefit and other plans or as otherwise necessary or appropriate in connection with the transactions contemplated by this Agreement, or any of the Ancillary Agreements, including any transactions related to financings or other credit facilities.  Promptly after receiving a request from Trinity, Arcosa shall prepare and, in accordance with applicable Law, file with the SEC any such documentation that Trinity determines is necessary or desirable to effectuate the Distribution, and Trinity and Arcosa shall each use commercially reasonable efforts to obtain all necessary approvals from the SEC with respect thereto as soon as practicable.
 
(c)          Promptly after receiving a request from Trinity, to the extent not already approved and effective, Arcosa shall prepare and file, and shall use commercially reasonable efforts to have approved and made effective, an application for the original listing on the NYSE of the Arcosa Common Stock to be distributed in the Distribution, subject to official notice of distribution.
 
(d)          Nothing in this Section 4.3 shall be deemed, by itself, to create a Liability of Trinity for any portion of the Registration Statement.
 
Section 4.4           Sole Discretion of Trinity.  Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement, Trinity shall, in its sole and absolute discretion, determine the Distribution Date and all terms of the Distribution, including the form, structure and terms of any transactions to effect the Distribution and the timing of and conditions to the consummation thereof.  In addition, Trinity may, in accordance with Section 10.10, at any time prior to the Distribution Date and from time to time until the completion of the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution, including by accelerating or delaying the timing of the consummation of all or part of the Distribution.  None of Arcosa, any other member of the Arcosa Group, any Arcosa Group Employee or any Third Party shall have any right or claim to require the consummation of the Separation or the Distribution, each of which shall be effected at the sole discretion of the Trinity Board.
 
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Section 4.5           Conditions.

(a)          Subject to Section 4.4, the following are conditions to the consummation of the Distribution (which, to the extent permitted by applicable Law, may be waived, in whole or in part, by Trinity in its sole discretion):
 
(i)           The Arcosa Registration Statement shall have been declared effective by the SEC and shall be subject to no further comment, no stop order suspending the effectiveness of the Arcosa Registration Statement shall be in effect, and no Proceedings for that purpose will be pending before or threatened by the SEC;

(ii)          The Arcosa Common Stock to be delivered to the Trinity stockholders in the Distribution shall have been accepted for listing on the NYSE, subject to official notice of distribution;

(iii)         Trinity shall have obtained a private letter ruling from the Internal Revenue Service in form and substance satisfactory to Trinity (in its sole discretion) substantially to the effect that, among other things, the Distribution, together with certain related transactions, will qualify as a tax-free distribution for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code and that certain transactions involving the transfer to members of the Arcosa Group of certain Arcosa Assets and/or the assumption by members of the Arcosa Group of certain Arcosa Liabilities in connection with the Separation will not result in the recognition of any gain or loss to members of the Trinity Group or Arcosa Group for U.S. federal income tax purposes, and such private letter ruling shall not have been revoked prior to the Distribution Date or modified in any material respect;

(iv)         Trinity shall have obtained an opinion from each of Skadden, Arps, Slate, Meagher & Flom LLP, tax counsel to Trinity, and KPMG, tax advisor to Trinity, in form and substance satisfactory to Trinity (in its sole discretion), substantially to the effect that, among other things, the Distribution, together with certain related transactions, will qualify as a tax-free distribution for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code and that certain transactions involving the transfer to members of the Arcosa Group of certain Arcosa Assets and/or the assumption by members of the Arcosa Group of certain Arcosa Liabilities in connection with the Separation will not result in the recognition of any gain or loss to members of the Trinity Group or Arcosa Group for U.S. federal income tax purposes;

(v)          Each of Trinity and Arcosa shall have received any necessary permits, registrations and consents under the securities or "blue sky" Laws of states or other political subdivisions of the United States (and any comparable Laws under any foreign jurisdiction) in connection with the Distribution and all such permits and authorizations shall be in effect;

(vi)         No order, injunction or decree issued by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no other Law or other legal restraint or prohibition shall have been adopted or be effective preventing the consummation of the Separation, Distribution or any of the related transactions contemplated herein;

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(vii)       The Internal Reorganization shall have been effectuated, including the execution of all such instruments, assignments, documents and other agreements necessary to effect the Internal Reorganization; and

(viii)       No other events or developments shall exist or shall have occurred that, in the judgment of the Trinity Board, in its sole and absolute discretion, makes it inadvisable to effect the Separation, the Distribution or the transactions contemplated by this Agreement.
 
(b)          The conditions set forth in this Section 4.5 are for the sole benefit of Trinity and shall not give rise to or create any duty on the part of Trinity or the Trinity Board to waive or not waive any such condition.  Any determination made by Trinity prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 4.5 shall be conclusive and binding on the Parties hereto.
 
ARTICLE V

COVENANTS
 
Section 5.1           Legal Names and Other Parties' Trademark.
 
(a)          Except as otherwise specifically provided in any Ancillary Agreement, as soon as reasonably practicable after the Distribution Date, but in any event within six (6) months thereafter, each Party shall cease (and shall cause all of the other members of its Group to cease): (i) making any use of any names or Trademarks that include (A) any of the Trademarks of the other Party or such other Party's Affiliates (including, in the case of Arcosa, "Trinity" or "Trinity Industries, Inc." or any other name or Trademark containing the words "Trinity", and in the case of Trinity, "Arcosa" or "Arcosa, Inc." or any other name or Trademark containing the words "Arcosa") and (B) any names or Trademarks confusingly similar thereto or dilutive thereof (with respect to each Party, such Trademarks of the other Party or any of such other Party's Affiliates, the "Other Party Marks"), and (ii) holding themselves out as having any affiliation with the other Party or such other Party's Affiliates; provided, however, that the foregoing shall not prohibit any Party or any member of a Party's Group from (1) in the case of any member of the Arcosa Group, making factual and accurate reference in a non-Trademark manner that it was formerly affiliated with Trinity or in the case of any member of the Trinity Group, making factual and accurate reference in a non-Trademark manner that it was formerly affiliated with Arcosa, (2) making use of any Other Party Mark in a manner that would constitute "fair use" under applicable Law if any unaffiliated Third Party made such use or would otherwise be legally permissible for any unaffiliated Third Party without the consent of the Party owning such Other Party Mark, and (3) making references in internal historical and tax records.  In furtherance of the foregoing, as soon as practicable, but in no event later than six (6) months following the Distribution Date, each Party shall (and cause all of the other members of its Group to) remove, strike over or otherwise obliterate all Other Party Marks from all of such Party's and its Affiliates' assets and other materials, including any vehicles, business cards, schedules, stationery, packaging materials, displays, signs, promotional materials, manuals, forms, websites, email, computer software and other materials and systems; provided, however, that Arcosa shall promptly after the Distribution Date post and maintain for a period of six (6) months a disclaimer in a form and manner reasonably acceptable to Trinity on the "www.arcosa.com" website informing its customers that as of the Effective Time and thereafter Arcosa, and not Trinity, is responsible for the operation of the Arcosa Business, including such website and any applicable services.  Any use by any Party or any of such Party's Affiliates of any of the Other Party Marks as permitted in this Section 5.1 is subject to their compliance with all quality control standards and related requirements and guidelines in effect for the Other Party Marks as of the Effective Time.
 
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(b)          Notwithstanding the foregoing requirements of Section 5.1(a), if any Party or any member of such Party's Group used commercially reasonable efforts to comply with Section 5.1(a) but is unable, due to regulatory or other circumstance beyond its control, to effect a legal name change in compliance with applicable Law such that an Other Party Mark remains in such Party's or its Group member's legal name, then such Party or its relevant Group member will not be deemed to be in breach hereof as long as it continues to use commercially reasonable efforts to effectuate such name change and does effectuate such name change within twelve (12) months after the Distribution Date, and, in such circumstances, such Party or Group member may continue to include in its assets and other materials references to the Other Party Mark that is in such Party's or Group member's legal name which includes references to "Arcosa" or "Trinity" as applicable, but only to the extent necessary to identify such Party or Group member and only until such Party's or Group member's legal name can be changed to remove and eliminate such references.
 
(c)          Notwithstanding the foregoing requirements of Section 5.1(a), but subject to Section 2.7 hereof, Arcosa shall not be required to change any name including the words "Trinity" in any Third Party contract or license, or in property records with respect to real or personal property, if an effort to change the name is commercially unreasonable; provided, however, that (i) Arcosa on a prospective basis from and after the Distribution Date shall change the name in any new or amended Third Party contract or license or property record and (ii) Arcosa shall not advertise or make public any continued use of the "Trinity" name permitted by this Section 5.1(c) except as otherwise permitted by this Section 5.1.
 
Section 5.2           Auditors and Audits; Annual and Quarterly Financial Statements and Accounting.
 
(a)          Each Party agrees that during the period ending on December 31, 2020, with respect to clause (i) below and December 31, 2019 with respect to clause (ii) (and with the consent of the other applicable Party, which consent shall not be unreasonably withheld or delayed, during any period of time after December 31, 2020 reasonably requested by such requesting Party so long as there is a reasonable business purpose for such request) and in any event solely with respect to the preparation and audit of each of the Party's financial statements for any of the years ended December 31, 2018, 2017 and 2016, the printing, filing and public dissemination of such financial statements, the audit of each Party's internal control over financial reporting related to such financial statements and such Party's management's assessment thereof, and each Party's management's assessment of such Party's disclosure controls and procedures related to such financial statements:
 
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(i)           Annual Financial Statements.  Each Party shall provide to the other Party on a timely basis all information reasonably required to meet its schedule for the preparation, printing, filing, and public dissemination of its annual financial statements and for management's assessment of the effectiveness of its disclosure controls and procedures and its internal control over financial reporting in accordance with Items 307 and 308, respectively, of Regulation S-K and, to the extent applicable to such Party, (a) its auditor's audit report of its internal control over financial reporting and (b) management's assessment thereof in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 and the SEC's and Public Company Accounting Oversight Board's rules and auditing standards thereunder (such assessments and audit being referred to as the "Internal Control Audit and Management Assessments").  Without limiting the generality of the foregoing, each Party will provide all required financial and other Information with respect to itself and its Subsidiaries to its auditors in a sufficient and reasonable time and in sufficient detail to permit its auditors to take all steps and perform all reviews necessary to provide sufficient assistance to each other Party's auditors with respect to information to be included or contained in such other Party's annual financial statements and to permit such other Party's auditors and management to complete their respective auditor's report on Internal Control Audit and Management Assessments, to the extent applicable to such Party.

(ii)          Access to Personnel and Records.  Each audited Party shall authorize, and use its commercially reasonable efforts to cause, its respective auditors to make available to the other Party's auditors (each such other Party's auditors, collectively, the "Other Parties' Auditors") both the personnel who performed or are performing the annual audits of such audited party (each such Party with respect to its own audit, the "Audited Party") and work papers related to the annual audits of such Audited Party, in all cases within a reasonable time prior to such Audited Party's expected auditors' opinion date, so that the Other Parties' Auditors are able to perform the procedures they consider necessary to take responsibility for the work of the Audited Party's auditors as it relates to their auditors' report on such other Party's financial statements, all within sufficient time to enable such other Party to meet its timetable for the printing, filing and public dissemination of its annual financial statements.  Each Party shall make available to the Other Parties' Auditors and management its personnel and Records in a reasonable time prior to the Other Parties' Auditors' opinion date and other Parties' management's assessment date so that the Other Parties' Auditors and other Parties' management are able to perform the procedures they consider necessary to conduct their respective Internal Control Audit and Management Assessments.
 
(b)          Amended Financial Reports.  In the event a Party restates any of its financial statements that includes such Party's audited or unaudited financial statements with respect to any balance sheet date or period of operation between January 1, 2013 and December 31, 2018, such Party will deliver to the other Party a substantially final draft, as soon as the same is prepared, of any report to be filed by such first Party with the SEC that includes such restated audited or unaudited financial statements (the "Amended Financial Reports"); provided, however, that such first Party may continue to revise its Amended Financial Report prior to its filing thereof with the SEC, which changes will be delivered to the other Party as soon as reasonably practicable; provided, further, however, that such first Party's financial personnel will actively consult with the other Party's financial personnel regarding any changes which such first Party may consider making to its Amended Financial Report and related disclosures prior to the anticipated filing of such report with the SEC, with particular focus on any changes which would have an effect upon the other Party's financial statements or related disclosures.  Each Party will reasonably cooperate with, and permit and make any necessary employees available to, the other Party and the Other Parties' Auditors, in connection with the other Party's preparation of any Amended Financial Reports.
 
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(c)          Financials; Outside Auditors.  If any Party or member of its respective Group is required, pursuant to Rule 3-09 of Regulation S-X or otherwise, to include in its Exchange Act filings audited financial statements or other information of the other Party or member of the other Party's Group, the other Party shall use its commercially reasonable efforts (i) to provide such audited financial statements or other information, and (ii) to cause its outside auditors to consent to the inclusion of such audited financial statements or other information in the Party's Exchange Act filings.
 
(d)          Third Party Agreements.  Nothing in this Section 5.2 shall require any Party to violate any Contract or arrangement with any Third Party regarding the confidentiality of confidential and proprietary information relating to that Third Party or its business; provided, however, that in the event that a Party is required under this Section 5.2 to disclose any such information, such Party shall use commercially reasonable efforts to seek to obtain such Third Party's consent to the disclosure of such information.  The Parties also acknowledge that the Other Parties' Auditors are subject to contractual, legal, professional and regulatory requirements with which such auditors are responsible for complying.
 
Section 5.3           No Restrictions on Corporate Opportunities.
 
(a)          In the event that Trinity or any other member of the Trinity Group, or any director or officer of Trinity or any other member of the Trinity Group, acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both Trinity or any other member of the Trinity Group and Arcosa or any other member of the Arcosa Group, neither Trinity nor any other member of the Trinity Group, nor any director or officer of Trinity or any other member of the Trinity Group, shall have any duty to communicate or present such corporate opportunity to Arcosa or any other member of the Arcosa Group and shall not be liable to Arcosa or any other member of the Arcosa Group or to Arcosa's stockholders for breach of any fiduciary duty as a stockholder of Arcosa or an officer or director thereof by reason of the fact that Trinity or any other member of the Trinity Group pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another person or entity, or does not present such corporate opportunity to Arcosa or any other member of the Arcosa Group.
 
(b)          In the event that Arcosa or any other member of the Arcosa Group, or any director or officer of Arcosa or any other member of the Arcosa Group, acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both Trinity or any other member of the Trinity Group and Arcosa or any other member of the Arcosa Group, neither Arcosa nor any other member of the Arcosa Group, nor any director or officer of Arcosa or any other member of the Arcosa Group, shall have any duty to communicate or present such corporate opportunity to Trinity or any other member of the Trinity Group and shall not be liable to Trinity or any other member of the Trinity Group or to Trinity's stockholders for breach of any fiduciary duty as a stockholder of Trinity or an officer or director thereof by reason of the fact that Arcosa or any other member of the Arcosa Group pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another person or entity, or does not present such corporate opportunity to Trinity or any other member of the Trinity Group.
 
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(c)          For the purposes of this Section 5.3, "corporate opportunities" of Arcosa or any other member of the Arcosa Group shall include, but not be limited to, business opportunities that are, by their nature, in a line of business of Arcosa or any other member of the Arcosa Group, including the Arcosa Business, are of practical advantage to them and are ones in which Arcosa or any other member of the Arcosa Group have an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of Trinity or any other member of the Trinity Group or any of their officers or directors will be brought into conflict with that of Arcosa or any other member of the Arcosa Group, and "corporate opportunities" of Trinity or any other member of the Trinity Group shall include, but not be limited to, business opportunities that are, by their nature, in a line of business of Trinity or any other member of the Trinity Group, including the Trinity Business, are of practical advantage to them and are ones in which Trinity or any other member of the Trinity Group have an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of Arcosa or any other member of the Arcosa Group or any of their officers or directors will be brought into conflict with that of Trinity or any other member of the Trinity Group.
 
Section 5.4           Certain Non-Competition Provisions.
 
(a)          As an essential consideration for the obligations of the Parties under this Agreement, and in contemplation of the consummation of the Separation and the Distribution, each of Trinity and Arcosa hereby agrees that, from the date hereof until the fifth (5th) anniversary of the Distribution Date (the "Non-Compete Period"), such party shall not, and it shall cause each other member of its respective Group not to, directly or indirectly own, invest in, operate, manage, control, participate or engage in any Prohibited Business.  "Prohibited Business" means (i) with respect to any member of the Trinity Group, the Arcosa Business as conducted immediately following the Effective Time; and (ii) with respect to any member of the Arcosa Group, the Trinity Business as conducted immediately following the Effective Time; provided, that nothing in this Section 5.4 shall prohibit the ownership by Trinity or Arcosa, as the case may be, or any member of its Group, of debt, equity or other class of securities of any Person that owns, invests in, operates, manages, controls, participates or engages directly or indirectly in a Prohibited Business, provided ownership of such securities (either directly, indirectly or upon conversion) is less than five percent (5%) of such class of securities of such Person. Nothing in this Section 5.4 shall prohibit the Arcosa Group or the Trinity Group from manufacturing, selling or distributing rail car parts and components except as provided on Schedule 5.4. Also, nothing in this Section 5.4 shall prohibit the Arcosa Group from manufacturing and selling in Mexico products of the type roll formed manufactured by the Formet business division of Trinity Industries de Mexico prior to the Effective Time.  During the Non-Compete Period, without the prior written consent of Trinity, the Arcosa Group shall not enter into a merger, acquisition, consolidation or other business combination with another Person that engages in manufacturing and selling products of the type roll formed manufactured by the Formet business division of Trinity Industries de Mexico prior to the Effective Time.
 
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(b)          In the event that a merger, acquisition, consolidation or other business combination with another Person that directly or indirectly owns, invests in, operates, manages, controls, participates or engages in a Prohibited Business results in Trinity or Arcosa, as the case may be, directly or indirectly owning, investing in, operating, managing, controlling, participating or engaging in a Prohibited Business in breach of Section 5.4(a) at the time of such transaction, the parties to such transaction shall have a period of 365 days from the date of the closing or consummation of such transaction to cure (by divestiture or otherwise, including, for the avoidance of doubt, in the event that such 365-day cure period extends beyond the expiration of the Non-Compete Period) such failure before the parties are deemed to be in breach of this Section 5.4.
 
(c)          It is the intention of each of the Parties that if any of the restrictions or covenants contained in this Section 5.4 is held by a court of competent jurisdiction to cover a geographic area or to be for a length of time that is not permitted by applicable Law, or is in any way construed by a court of competent jurisdiction to be too broad or to any extent invalid, such provision shall be construed and interpreted or reformed by a court of competent jurisdiction to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained in this Section 5.4) as shall be valid and enforceable under such Law. Each of Arcosa and Trinity acknowledges that any breach of the terms, conditions or covenants set forth in this Section 5.4 shall be competitively unfair and may cause irreparable damage to the other Party because of the special, unique, unusual and extraordinary character of the business of the Trinity Group and the Arcosa Group, respectively, and the recovery of damages at Law will not be an adequate remedy. Accordingly, each of the Parties agrees that for any breach of the terms, covenants or agreements of this Section 5.4, a restraining order or an injunction or both may be issued against the breaching Party, in addition to any other rights or remedies a non-breaching Party may have.
 
ARTICLE VI

SURVIVAL AND INDEMNIFICATION; MUTUAL RELEASES
 
Section 6.1           Release of Pre-Distribution Claims.
 
(a)          Except (i) as provided in Section 6.1(c), (ii) as may otherwise be provided in this Agreement or any Ancillary Agreement and (iii) for any matter for which any Trinity Indemnified Party is entitled to indemnification pursuant to this Article VI, effective as of the Distribution, Trinity does hereby, for itself and each other member of the Trinity Group and their respective successors and assigns, and, to the extent Trinity legally may, all Persons that at any time prior or subsequent to the Distribution have been stockholders, directors, officers, members, agents or employees of Trinity or any other member of the Trinity Group (in each case, in their respective capacities as such), remise, release and forever discharge Arcosa and each member of the Arcosa Group and their respective successors and assigns from any and all Liabilities whatsoever, whether at Law or in equity, whether arising under any Contract or agreement, by operation of Law or otherwise, including for fraud, existing or arising from or relating to any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution, whether or not known as of the Distribution, including in connection with the transactions and all other activities to implement the Separation or the Distribution.  Trinity shall not make, and shall not permit any other member of the Trinity Group to make, any claim or demand, or commence any Proceedings asserting any claim or demand, including any claim for indemnification, against any member of the Arcosa Group with respect to any Liabilities released pursuant to this Section 6.1(a).
 
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(b)          Except (i) as provided in Section 6.1(c), (ii) as may be otherwise provided in this Agreement or any Ancillary Agreement and (iii) for any matter for which any Arcosa Indemnified Party is entitled to indemnification pursuant to this Article VI, effective as of the Distribution, Arcosa does hereby, for itself and each other member of the Arcosa Group and their respective successors and assigns, and, to the extent Arcosa legally may, all Persons that at any time prior or subsequent to the Distribution have been stockholders, directors, officers, members, agents or employees of Arcosa or any other member of the Arcosa Group (in each case, in their respective capacities as such), remise, release and forever discharge Trinity and each member of the Trinity Group and their respective successors and assigns from any and all Liabilities whatsoever, whether at Law or in equity, whether arising under any Contract or agreement, by operation of Law or otherwise, including for fraud, existing or arising from or relating to any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution, whether or not known as of the Distribution, including in connection with the transactions and all other activities to implement the Separation or the Distribution.  Arcosa shall not, and shall not permit any other member of the Arcosa Group to, make any claim or demand, or commence any Proceedings asserting any claim or demand, including any claim for indemnification, against any member of the Trinity Group with respect to any Liabilities released pursuant to this Section 6.1(b).
 
(c)          Nothing contained in Sections 6.1(a) or (b) shall impair any right of any Person to enforce this Agreement, any Ancillary Agreement or any arrangement that is not to terminate as of the Distribution.  Nothing contained in Sections 6.1(a) or (b) shall release any Party from:
 
(i)           any Liability provided in or resulting from any agreement among any member of the Trinity Group and any member of the Arcosa Group that is not to terminate as of the Distribution, or any other liability that is not to terminate as of the Distribution;

(ii)          any Liability provided in or resulting from any other Contract or understanding that is entered into after the Effective Time between one Party (and/or a member of such Party's Group), on the one hand, and the other Party (and/or a member of such Party's Group), on the other hand;

(iii)        any Liability that the Parties may have with respect to indemnification or contribution pursuant to this Agreement or any Ancillary Agreement, including in respect of claims brought against the Parties (or members of their respective Groups) by any Third Party, which Liability shall be governed by the provisions of this Article VI and, if applicable, the appropriate provisions of the Ancillary Agreements;

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(iv)         any Liability with respect to any Continuing Arrangements or any Intergroup Indebtedness that survive the Effective Time; and

(v)          any Liability, contingent or otherwise, assumed, transferred, assigned or allocated to the Group of which such Person is a member in accordance with, or any other liability of any member of any Group under, this Agreement; or

(vi)         any Liability the release of which would result in the release of any Person other than a Person released pursuant to this Section 6.1; provided  that the parties agree not to bring suit or permit any of their Subsidiaries to bring suit against any Person with respect to any Liability to the extent that such Person would be released with respect to such Liability by this Section 6.1 but for the provisions of this clause (vi).
 
In addition, nothing contained in Section 6.1(a) shall release any member of the Trinity Group from honoring its existing obligations to indemnify any director, officer or employee of Arcosa who was a director, officer or employee of Trinity or any of its Affiliates at or prior to the Effective Time, to the extent such director, officer or employee is or becomes a named defendant in any Proceeding with respect to which he or she was entitled to such indemnification pursuant to obligations existing prior to the Effective Time; it being understood that if the underlying obligation giving rise to such Proceedings is an Arcosa Liability, Arcosa shall indemnify Trinity for such Liability (including Trinity's costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article VI.
 
(d)          At any time, at the request of any other Party, each Party shall cause each member of its respective Group to execute and deliver releases in form reasonably satisfactory to the other Party reflecting the provisions of this Section 6.1.
 
Section 6.2           Indemnification by Trinity.  In addition to any other provision of this Agreement or any Ancillary Agreement requiring indemnification, except as otherwise specifically set forth in any provision of this Agreement, and subject to Section 6.11, from and after the Distribution, Trinity will indemnify, defend, release and discharge Arcosa and its Affiliates and their respective current and former directors, officers, employees and agents and each of the heirs, executors, successors and permitted assigns of any of the foregoing (collectively, the "Arcosa Indemnified Parties," and, together with Trinity Indemnified Parties, the "Indemnified Parties"), from and against any and all Indemnifiable Losses actually suffered or incurred by the Arcosa Indemnified Parties relating to, arising out of or resulting from any of the following items regardless of whether arising from or alleged to arise from negligence (whether simple, contributory or gross), recklessness, violation of Law, fraud, misrepresentation or otherwise (without duplication) to the fullest extent permitted by applicable Law:
 
(a)          the failure of any member of the Trinity Group or any other Person to pay, perform or otherwise promptly discharge any Trinity Liability in accordance with their respective terms, whether arising prior to, on or after the Distribution;
 
(b)          any Trinity Liability; and
 
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(c)          any breach by any member of the Trinity Group of this Agreement or, subject to Section 6.11 hereof, any of the Ancillary Agreements, subject to any indemnification provision or any specific limitation on liability contained in any Ancillary Agreement.
 
Section 6.3           Indemnification by Arcosa.  In addition to any other provision of this Agreement or any Ancillary Agreement requiring indemnification, except as otherwise specifically set forth in any provision of this Agreement, and subject to Section 6.11, from and after the Distribution, Arcosa shall indemnify, defend, release and discharge Trinity and its Affiliates and their respective current and former directors, officers, employees and agents and each of the heirs, executors, successors and permitted assigns of any of the foregoing (collectively, the "Trinity Indemnified Parties"), from and against any and all Indemnifiable Losses actually suffered or incurred by the Trinity Indemnified Parties relating to, arising out of or resulting from any of the following items regardless of whether arising from or alleged to arise from negligence (whether simple, contributory or gross), recklessness, violation of Law, fraud, misrepresentation or otherwise (without duplication) to the fullest extent permitted by applicable Law:
 
(a)          the failure of any member of the Arcosa Group or any other Person to pay, perform or otherwise promptly discharge any Arcosa Liability in accordance with their respective terms, whether arising prior to, on or after the Distribution;
 
(b)          any Arcosa Liability; and
 
(c)          any breach by any member of the Arcosa Group of this Agreement or, subject to Section 6.11 hereof, any of the Ancillary Agreements, subject to any indemnification provision or any specific limitation on liability contained in any Ancillary Agreement.
 
Section 6.4           Procedures for Indemnification; Third Party Claims.
 
(a)          If an Indemnified Party shall receive notice or otherwise learn of the assertion by any Person who is not a member of the Trinity Group or the Arcosa Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 6.2 or Section 6.3, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "Third Party Claim"), such Indemnified Party shall give such Indemnifying Party written notice thereof within thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third Party Claim.  Any such notice shall describe the Third Party Claim in reasonable detail, including, if known, the amount of the loss or Liability claimed or asserted by such third party for which indemnification may be available. Notwithstanding the foregoing, the failure of any Indemnified Party or other Person to give notice as provided in this Section 6.4 shall not relieve the related Indemnifying Party of its obligations under this Article VI, except to the extent that such Indemnifying Party is actually materially prejudiced by such failure to give notice.
 
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(b)          An Indemnifying Party shall be entitled (but shall not be required) to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice who is reasonably acceptable to the Indemnified Party if it gives notice of its intention to do so to the Indemnified Party within thirty (30) days of the receipt of such notice from the Indemnified Party; provided, however, that the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim to the extent such Third Party Claim (x) is a Proceeding by a Governmental Authority, (y) involves an allegation of a criminal violation or (z) seeks injunctive relief against the Indemnified Party.  In the event of a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to the Third Party Claim, the Indemnified Party shall be entitled to retain, at the Indemnifying Party's expense, separate counsel reasonably acceptable to the Indemnifying Party as required by the applicable rules of professional conduct with respect to such matter.  If the Indemnifying Party elects to undertake any such defense at its own expense, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent Records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as are reasonably required by the Indemnifying Party.  Similarly, if the Indemnified Party is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party's expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as are reasonably required by the Indemnified Party.
 
(c)          If, in such notice, an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnified Party of its election as provided in Section 6.4(b), such Indemnified Party may defend such Third Party Claim at the cost and expense of the Indemnifying Party; provided, however, that the Indemnifying Party may at any time thereafter assume the defense of such Third Party Claim upon notice to the Indemnified Party (but the reasonable cost and expense incurred by the Indemnified Party in defending such Third Party Claim until such date as the Indemnifying Party shall assume the defense of such Third Party Claim shall be paid by the Indemnifying Party).
 
(d)          The Indemnified Party may not settle or compromise any Third Party Claim without the consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
 
(e)          The Indemnifying Party shall have the right to compromise or settle a Third Party Claim the defense of which it shall have assumed pursuant to Section 6.4(b) or Section 6.4(c) and any such settlement or compromise made or caused to be made of a Third Party Claim in accordance with this Article VI shall be binding on the Indemnified Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise.  Notwithstanding the foregoing sentence, the Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party in connection with such matter, (B) consists solely of monetary consideration borne by a Person other than the Indemnified Party, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
 
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(f)          In the event of Proceedings in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or Indemnifying Party shall so request, the Parties shall endeavor to substitute the Indemnifying Party for the named defendant, if at all practicable and advisable under the circumstances.  If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Proceedings as set forth in this Article VI.
 
(g)          With respect to any Third Party Claim that implicates both the Arcosa Group and the Trinity Group in a material fashion due to the allocation of Liabilities or potential impact on the operation of the Trinity Business or Arcosa Business, responsibilities for management of defense, and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use reasonable best efforts to cooperate fully and maintain a joint defense (in a manner that will preserve for the relevant members of the Arcosa Group and Trinity Group the attorney-client privilege, joint defense or other privilege with respect thereto).  The Party that is not responsible for managing the defense of such Third Party Claims shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may, if necessary or helpful, retain counsel to assist in the defense of such claims (at such Party's own expense).
 
Section 6.5           Indemnification Payments.  Indemnification required by this Article VI shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or an Indemnifiable Loss is incurred.
 
Section 6.6           Survival of Indemnities.  The rights and obligations of each of Trinity and Arcosa and their respective Indemnified Parties under this Article VI shall survive (i) the sale or other transfer by any Group of any of its Assets or Businesses or the assignment by it of any Liabilities, and (ii) any merger, consolidation, business combination, sale of all or substantially all of the Assets, restructuring, recapitalization, reorganization or similar transaction involving either Party or any of its Subsidiaries.
 
Section 6.7           Indemnification Obligations Net of Insurance Proceeds and Other Amounts; Contribution.
 
(a)          Insurance Proceeds and Other Amounts.
 
(i)           The Parties intend that any Liability subject to indemnification or contribution pursuant to this Agreement or any Ancillary Agreement shall be reduced by any Insurance Proceeds or other amounts actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) from any Person by or on behalf of the Indemnified Party in respect of any indemnifiable Liability.  Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnified Party shall be reduced by any Insurance Proceeds or any other amounts theretofore actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) by or on behalf of the Indemnified Party in respect of the related Liability.  If an Indemnified Party receives a payment required by this Agreement from an Indemnifying Party in respect of any Liability (an "Indemnity Payment") and subsequently receives Insurance Proceeds or any other amounts in respect of the related Liability, then the Indemnified Party shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or such other amounts (net of any out-of-pocket costs or expenses incurred in the collection thereof) had been received, realized or recovered before the Indemnity Payment was made.

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(ii)          Any Indemnity Payment shall be increased as necessary so that after making all payments corresponding to Taxes imposed on or attributable to such Indemnity Payment, the Indemnified Party receives an amount equal to the sum it would have received had no such Taxes been imposed.
 
(b)          Insurers and Other Third Parties Not Relieved.  The Parties hereby agree that an insurer or other Third Party that would otherwise be obligated to pay any amount shall not be relieved of the responsibility with respect thereto or have any subrogation rights with respect thereto by virtue of any provision contained in this Agreement or any Ancillary Agreement, and that no insurer or any other Third Party shall be entitled to a "windfall" (e.g., a benefit they would not be entitled to receive in the absence of the indemnification or release provisions) by virtue of any provision contained in this Agreement or any Ancillary Agreement.  Each Party shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to collect or recover, or allow the Indemnifying Party to collect or recover, any Insurance Proceeds that may be collectible or recoverable respecting the Liabilities for which indemnification may be available under this Article VI.  Notwithstanding the foregoing, an Indemnifying Party may not delay making any indemnification payment required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Proceeding to collect or recover Insurance Proceeds, and an Indemnified Party need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement.
 
(c)          Contribution.  If the indemnification provided for in this Article VI is unavailable for any reason to an Indemnified Party in respect of any Indemnifiable Loss, then the Indemnifying Party shall, in accordance with this Section 6.7(c), contribute to the Indemnifiable Losses incurred, paid or payable by such Indemnified Party as a result of such Indemnifiable Loss in such proportion as is appropriate to reflect the relative fault of Arcosa and each other member of the Arcosa Group, on the one hand, and Trinity and each other member of the Trinity Group, on the other hand, in connection with the circumstances which resulted in such Indemnifiable Loss.
 
Section 6.8           Direct Claims.  An Indemnified Party shall give the Indemnifying Party notice of any matter that an Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement (other than a Third Party Claim which shall be governed by Section 6.4) within thirty (30) days of such determination, stating the claimed or asserted amount of the Indemnifiable Loss and method of computation thereof, if known, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnified Party or arises; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure.
 
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Section 6.9           Remedies Cumulative.  The remedies provided in this Article VI or elsewhere in this Agreement shall be cumulative and shall not preclude assertion by any Indemnified Party of any other rights or the seeking of any and all other remedies provided for in this Agreement against any Indemnifying Party; provided, however, that the procedures set forth in this Article VI shall be the exclusive procedures governing any indemnity action brought under this Agreement.
 
Section 6.10         Consequential Damages.  EXCEPT AS MAY BE AWARDED TO A THIRD PARTY IN CONNECTION WITH ANY THIRD PARTY CLAIM THAT IS SUBJECT TO THE  INDEMNIFICATION OBLIGATIONS IN THIS ARTICLE VI, IN NO EVENT SHALL TRINITY, ARCOSA OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR OTHER AGENTS BE LIABLE UNDER THIS AGREEMENT FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, AND IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR OTHER AGENTS BE LIABLE UNDER THIS AGREEMENT FOR LOST PROFITS, OPPORTUNITY COSTS, DIMINUTION IN VALUE OR DAMAGES BASED UPON A MULTIPLE OF EARNINGS OR SIMILAR FINANCIAL MEASURE, EVEN IF UNDER APPLICABLE LAW SUCH LOST PROFITS, OPPORTUNITY COSTS, DIMINUTION IN VALUE, OR SUCH DAMAGES WOULD NOT BE CONSIDERED CONSEQUENTIAL OR SPECIAL DAMAGES.
 
Section 6.11         Ancillary Agreements.  Notwithstanding anything in this Agreement to the contrary, to the extent any Ancillary Agreement contains any specific, express indemnification obligation or contribution obligation relating to any Trinity Liability, Trinity Asset, Arcosa Liability or Arcosa Asset contributed, assumed, retained, transferred, delivered or conveyed pursuant to such Ancillary Agreement, or relating to any other specific matter, the indemnification obligations contained herein shall not apply to such Trinity Liability, Trinity Asset, Arcosa Liability or Arcosa Asset, or such other specific matter, and instead the indemnification and/or contribution obligations set forth in such Ancillary Agreement shall govern with regard to such Trinity Asset, Trinity Liability, Arcosa Asset or Arcosa Liability or any such other specific matter.
 
ARTICLE VII

CONFIDENTIALITY; ACCESS TO INFORMATION
 
Section 7.1           Provision of Corporate Records.  Other than in circumstances in which indemnification is sought pursuant to Article VI (in which event the provisions of such Article will govern) and without limiting the applicable provisions of Article VI, and subject to appropriate restrictions for classified, privileged or Confidential Information and subject further to any restrictions or limitations contained in Section 5.2 or elsewhere in this Article VII:
 
(a)          After the Effective Time, upon the prior written request by Arcosa for specific and identified Information which relates to (i) any member of the Arcosa Group or the conduct of the Arcosa Business (including Arcosa Assets and Arcosa Liabilities), as the case may be, up to the Effective Time, or (ii) any Ancillary Agreement, Trinity shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Arcosa has a reasonable need for such originals) in the possession or control of Trinity or any of its Affiliates, but only to the extent such items so relate and are not already in the possession or control of a member of the Arcosa Group.
 
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(b)          After the Effective Time, upon the prior written request by Trinity for specific and identified Information which relates to (i) any member of the Trinity Group or the conduct of the Trinity Business (including Trinity Assets and Trinity Liabilities), as the case may be, up to the Effective Time, or (ii) any Ancillary Agreement, Arcosa shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Trinity has a reasonable need for such originals) in the possession or control of Arcosa or any of its Affiliates, but only to the extent such items so relate and are not already in the possession or control of a member of the Trinity Group.
 
Section 7.2           Access to Information.  Other than in circumstances in which indemnification is sought pursuant to Article VI (in which event the provisions of such Article will govern) and without limiting the applicable provisions of Article VI, and subject to any restrictions or limitations contained in Section 5.2 or elsewhere in this Article VII, from and after the Effective Time, each of Trinity and Arcosa shall afford to the other and its authorized accountants, counsel and other designated representatives reasonable access during normal business hours, subject to appropriate notice and restrictions for classified, privileged or confidential information and to the requirements of any applicable Law, to the personnel, properties, and Information of such Party and its Subsidiaries insofar as such access is reasonably required by the other Party, and only for the duration such access is required, and relates to (a) such other Party or the conduct of its business prior to the Effective Time or (b) any Ancillary Agreement; provided, however, in the event that a Party determines that any such access or the provision of any such information (including information requested under Section 5.2 or Section 7.1) would be commercially detrimental in any material respect, violate any Law or Contract with a Third Party or waive any attorney-client privilege, the work product doctrine or other applicable privilege, the Parties shall take all reasonable measures (and, to the extent applicable, shall use commercially reasonable efforts to obtain the Consent from any Third Party required to make such disclosure without violating a Contract with a Third Party) to permit compliance with such information request in a manner that avoids any such harm, violation or consequence.  Each of Trinity and Arcosa shall inform their respective officers, directors, employees, agents, consultants, advisors, authorized accountants, counsel and other designated representatives who have or have access to the other Party's Confidential Information or other information provided pursuant to Section 5.2 or this Article VII of their obligation to hold such information confidential in accordance with the provisions of this Agreement.
 
Section 7.3           Witness Services.  At all times from and after the Effective Time, each of Trinity and Arcosa shall use its commercially reasonable efforts to make available to the other, upon reasonable written request, its and its Subsidiaries' officers, directors, employees, consultants, and agents (taking into account the business demands of such individuals) as witnesses to the extent that (a) such Persons may reasonably be required to testify in connection with the prosecution or defense of any Proceeding in which the requesting Party may from time to time be involved (except for claims, demands or Proceedings in which one or more members of one Group is adverse to one or more members of the other Group) and (b) there is no conflict in the Proceeding between the requesting Party and the other Party.
 
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Section 7.4           Cooperation.  At all times from and after the Effective Time, except for any Proceeding (or any threatened Proceeding) in which one or more members of one Group is adverse to one or more members of the other Group, or in which there is otherwise a conflict between one or more members of one Group and one or more members of the other Group (each of which shall be governed by such discovery rules as may be applicable thereto), each of Trinity and Arcosa shall cooperate and consult in good faith as reasonably requested in writing by the other Party with respect to the prosecution or defense of any Proceeding (or any audit or any other legal requirement) in which the requesting Party may from time to time be involved, regardless of whether relating to events that took place prior to, on or after the date of Separation or whether relating to this Agreement or any Ancillary Agreement or any of the transactions contemplated hereby or thereby or otherwise.  Notwithstanding the foregoing, this Section 7.4 does not require a Party to take any step that would materially interfere, or that it reasonably determines could materially interfere, with its business. The requesting Party agrees to reimburse the other Party for the reasonable out-of-pocket costs, if any, incurred in connection with a request under this Section 7.4.
 
Section 7.5           Confidentiality.
 
(a)          Notwithstanding any termination of this Agreement, from and after the Effective Time until the date that is five (5) years after the date of termination of the Agreement, the Parties shall hold, and shall cause each of their respective Subsidiaries to hold, and shall each cause their respective officers, directors, employees, agents, consultants and advisors to hold, in strict confidence, and not to disclose or release or use, for any ongoing or future commercial purpose, without the prior written consent of the other Party, any and all Confidential Information concerning the other Party (and the members of its respective Group and Business); provided, however, that the Parties may disclose, or may permit disclosure of, Confidential Information (i) to their respective auditors, attorneys, financial advisors, bankers and other appropriate consultants and advisors who have a need to know such information for auditing and other non-commercial purposes and are informed of their obligation to hold such information confidential to the same extent as is applicable to the Parties and in respect of whose failure to comply with such obligations, the applicable Party will be responsible, (ii) if the Parties or any of their respective Subsidiaries are required or compelled to disclose any such Confidential Information by judicial or administrative process or by other requirements of Law or stock exchange rule, (iii) as necessary in order to permit a Party to prepare and disclose its financial statements, or other required disclosures, or (iv) in the event Trinity determines in its sole discretion that disclosure of Confidential Information to a government enforcement agency is in the best interest of Trinity or any member of the Trinity Group; provided, further, that each Party (and members of its Group as necessary) may use, or may permit use of, Confidential Information of the other Party in connection with such first Party performing its obligations, or exercising its rights, under this Agreement or any Ancillary Agreement.  Notwithstanding the foregoing, (A) in the event that any demand or request for disclosure of Confidential Information is made pursuant to clause (ii) above, each Party, as applicable, shall promptly notify the other Party of the existence of such request or demand and shall provide the other Party a reasonable opportunity to seek an appropriate protective order or other remedy, which such Parties will cooperate in obtaining, and (B) in the event Trinity determines to disclose Confidential Information to a government enforcement agency pursuant to clause (iv) above, and such Confidential Information to be disclosed relates in whole or in part to Arcosa or any member of the Arcosa Group, then Trinity shall provide Arcosa with reasonable advance written notice prior to such disclosure.  In the event that such appropriate protective order or other remedy is not obtained, the Party whose Confidential Information is required to be disclosed shall or shall cause the other applicable Party or Parties to furnish, or cause to be furnished, only that portion of the Confidential Information that is legally required to be disclosed and shall take commercially reasonable steps to ensure that confidential treatment is accorded such portion of such Confidential Information.
 
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(b)          Notwithstanding anything to the contrary set forth herein, (i) the Parties shall be deemed to have satisfied their obligations hereunder with respect to Confidential Information if they exercise at least the same degree of care that Trinity exercises and applies to its confidential and proprietary information pursuant to Trinity's policies and procedures in effect as of the Effective Time and (ii) confidentiality obligations provided for in any Contract between each Party or its Subsidiaries and their respective employees shall remain in full force and effect.  Notwithstanding anything to the contrary set forth herein, Confidential Information of any Party in the possession of and used by any other Party as of the Effective Time may continue to be used by such Party in possession of the Confidential Information in and only in (and only to the extent reasonably necessary to) the operation of the Arcosa Business (in the case of the Arcosa Group) or the Trinity Business (in the case of the Trinity Group); provided, however, such Confidential Information may be used only so long as the Confidential Information is maintained in confidence in accordance with, and not disclosed in violation of, Section 7.5(a).
 
(c)          Each Party acknowledges that it and the other members of its Group may have in their possession confidential or proprietary information of Third Parties that was received under confidentiality or non-disclosure agreements with such Third Party prior to the Effective Time.  Such Party will hold, and will cause the other members of its Group and their respective representatives to hold, in strict confidence the confidential and proprietary information of Third Parties to which they or any other member of their respective Groups has access, in accordance with the terms of any Contracts entered into prior to the Effective Time between one or more members of the such Party's Group (whether acting through, on behalf of, or in connection with, the separated Businesses) and such Third Parties.
 
(d)          Upon the written request of a Party, the other Party shall take commercially reasonable actions to promptly (i) deliver to such requesting Party all original Confidential Information (whether written or electronic) concerning such requesting Party and/or its Subsidiaries, and (ii) if specifically requested by such requesting Party, destroy any copies of such Confidential Information (including any extracts therefrom); provided, however, that the receiving Party may retain an archival copy of the Confidential Information, to the extent necessary to comply with applicable Law or such Party's retention or archival policies.  Upon the written request of such requesting Party, the other Party shall cause one of its duly authorized officers to certify in writing to such requesting Party that the requirements of the preceding sentence have been satisfied in full.
 
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Section 7.6           Privileged Matters.

(a)          Pre-Separation Services.  The Parties recognize that legal and other professional services (including, but not limited to, services rendered by legal counsel retained or employed by any Party (or any member of such Party's respective Group), including outside counsel and in-house counsel) that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the Trinity Group and the Arcosa Group, and that each of the members of the Trinity Group and the Arcosa Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law; provided, however, that members of the Arcosa Group shall not be deemed the client with respect to pre-separation services that relate solely to the Trinity Business, and members of the Arcosa Group may not assert privilege with respect to pre-separation services that relate solely to the Trinity Business.
 
(b)          Post-Separation Services.  The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of Trinity or Arcosa or their successors or assigns, as the case may be.  With respect to such post-separation services, the Parties agree as follows:
 
(i)           Trinity shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the Trinity Business, whether or not the privileged information is in the possession of or under the control of Trinity or Arcosa.  Trinity shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting Trinity Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Trinity, whether or not the privileged information is in the possession of or under the control of Trinity or Arcosa or their successors or assigns; and

(ii)          Arcosa shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the Arcosa Business, whether or not the privileged information is in the possession of or under the control of Trinity or Arcosa or their successors or assigns.  Arcosa shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting Arcosa Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Arcosa, whether or not the privileged information is in the possession of or under the control of Trinity or Arcosa or their successors or assigns.
 
(c)          The Parties agree that they shall have a shared privilege, subject to the restrictions in this Section 7.6, with respect to all privileges not allocated pursuant to the terms of Section 7.6(a) or Section 7.6(b) and all privileges relating to any Proceedings or other matters which involve both Trinity and Arcosa (or one or more members of their respective Groups) in respect of which both Parties retain any responsibility or Liability under this Agreement.
 
(d)          No Party may disclose to any Third Party any privileged communications that could be withheld under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in clause (e) or (f) below.  Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent.  Notwithstanding the foregoing, in the event Trinity determines, in its sole discretion, that waiver of a shared privilege for purposes of disclosing information to a government enforcement agency is in the best interest of Trinity or any member of the Trinity Group, Trinity shall have the right to waive any shared privilege without the consent of Arcosa or any member of the Arcosa Group.  In the event Trinity intends to waive any shared privilege, Trinity shall give reasonable advance written notice of its intent to waive the shared privilege to Arcosa.  No restriction contained in Section 7.4 or Section 7.6(g) shall limit in any way Trinity's right to waive any shared privilege pursuant to this Section 7.6(d).
 
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(e)          In the event of any litigation, arbitration or dispute between or among any of the Parties, or any members of their respective Groups, either such Party may disclose privileged communications to the other Party or member of such Party's Group so long as the privileged communications are subject to a shared privilege among or between the Parties; provided, however, that such disclosure of a shared privilege shall be effective only as to the use of information with respect to the litigation, arbitration or dispute between the relevant Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to third parties.
 
(f)          If a dispute arises between or among the Parties or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of any Party, each Party agrees that it shall negotiate and shall endeavor to minimize any prejudice to the rights of the other Parties, and shall not unreasonably withhold consent to any request for waiver by another Party.  Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
 
(g)          Upon receipt by any Party or by any Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which another Party has the sole right hereunder to assert a privilege, or if any Party obtains knowledge that any of its or any of its Subsidiaries' current or former directors, officers, consultants, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party or Parties of the existence of the request and shall provide the other Party or Parties a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 7.6 or otherwise to prevent the production or disclosure of such privileged information.
 
(h)          The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of Trinity and Arcosa, as set forth in Section 7.5 and this Section 7.6, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges.  The access to information being granted pursuant to Section 7.1 and Section 7.2 hereof, the agreement to provide witnesses and individuals pursuant to Section 7.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by this Section 7.6, and the transfer of privileged information between and among the Parties and their respective Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwise.
 
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Section 7.7           Ownership of Information.  Any information owned by one Party or any of its Subsidiaries that is provided to a requesting Party pursuant to this Article VII or Section 5.2 shall be deemed to remain the property of the providing Party.  Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.
 
Section 7.8           Other Agreements.  The rights and obligations granted under this Article VII are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information, or privileged matter with respect thereto, set forth in any Ancillary Agreement.
 
Section 7.9           Compensation for Providing Information.  A Party requesting Information pursuant to this Article VII agrees to reimburse the providing Party for the reasonable out-of-pocket expenses, if any, of gathering, copying and otherwise complying with respect to such Information (including any reasonable costs and expenses incurred in any review of Information for purposes of protecting any privilege thereunder or any other restrictions on the disclosure of such Information); provided, however, that each Party shall be responsible for its own attorneys' fees and expenses incurred in connection therewith.
 
ARTICLE VIII

DISPUTE RESOLUTION

Section 8.1           Negotiation.
 
(a)          In the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity, termination or breach of this Agreement or any Ancillary Agreement (unless such Ancillary Agreement expressly provides that disputes thereunder will not be subject to the resolution procedures set forth in this Article VIII) or otherwise arising out of, or in any way related to this Agreement or any such Ancillary Agreement or the transactions contemplated hereby or thereby, including any claim based on Contract, tort, Law or constitution (but excluding any controversy, dispute or claim arising out of any Contract with a Third Party if such Third Party is a necessary party to such controversy, dispute or claim) (collectively, "Agreement Disputes"), a Party must provide written notice of such Agreement Dispute ("Dispute Notice").  Within thirty (30) days of receipt by a Party of a Dispute Notice, the receiving Party shall submit to the other Party a written response.  The Dispute Notice and the response shall each include a statement of the Party's position, a general summary of the arguments (including relevant facts and circumstances) supporting that position, the name and title of the Party's representatives who will represent the Party and any other person(s) in negotiation of the Agreement Dispute. The Parties agree to negotiate in good faith to resolve any noticed Agreement Dispute. If the Parties are unable for any reason to resolve an Agreement Dispute within forty-five (45) days from the time of receipt of the response to the Dispute Notice and the forty-five (45) day period is not extended by mutual written consent, then the Chief Executive Officers of the Parties shall enter into negotiations for a reasonable period of time to settle such Agreement Dispute; provided, however, that such reasonable period shall not, unless otherwise agreed by the Parties in writing, exceed sixty (60) days from the 45th day noted above, if and as extended by mutual agreement of the Parties.
 
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(b)          Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement, in the event of any Agreement Dispute with respect to which a Dispute Notice has been delivered in accordance with this Section 8.1, (i) the relevant Parties shall not assert the defenses of statute of limitations and laches with respect to the period beginning after the date of receipt of the Dispute Notice, and (ii) any contractual time period or deadline under this Agreement or any Ancillary Agreement to which such Agreement Dispute relates occurring after the Dispute Notice is received shall be tolled by the submittal of a Dispute Notice.  All things said or disclosed, and any document produced, in the course of any negotiations, conferences and discussions in connection with efforts to settle an Agreement Dispute that is not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose in any arbitration or other proceeding, but shall be considered as to have been said, disclosed or produced for settlement purposes.
 
Section 8.2           Mediation.  Any Agreement Dispute not resolved pursuant to Section 8.1 shall, at the written request of a Party (a "Mediation Notice"), be submitted to nonbinding mediation in accordance with the then current International Institute for Conflict Prevention and Resolution ("CPR") Mediation Procedure, except as modified herein. The mediation shall be held in Dallas, Texas. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Notice to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty (20) days of receipt by a party of a Mediation Notice, then a Party may request (on written notice to the other Party), that CPR appoint a mediator in accordance with the CPR Mediation Procedure.  All mediation pursuant to this Section 8.2 shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations made by the Parties during such mediation shall be admissible for any purpose in any subsequent proceedings. No Party shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results of the mediation without the prior written consent of such other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange.  Before making any disclosure permitted by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice of the intended disclosure and afford the other Party a reasonable opportunity to protect its interests.
 
Section 8.3           Arbitration.  If the Agreement Dispute has not been resolved for any reason within sixty (60) days of the appointment of a mediator in accordance with Section 8.2, or within ninety (90) days after receipt by a Party of a Mediation Notice (whichever occurs sooner), or within such longer period as the Parties may agree in writing, then such Agreement Dispute (i) shall, if the amount disputed in good faith is less than $25,000,000, or (ii) may (by mutual written agreement between the Parties) if the amount disputed in good faith is equal to or greater than $25,000,000, be exclusively and finally determined, at the request of any relevant Party, by arbitration (by an arbitral tribunal as provided for in Section 8.4) conducted where the Parties agree it would be most convenient, and in the absence of agreement in Dallas, Texas, before and in accordance with the American Arbitration Association ("AAA") Commercial Arbitration Rules then currently in effect, except as modified herein (the "Rules").
 
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Section 8.4           Selection of Arbitrators.  There shall be three arbitrators.  Each Party shall appoint an arbitrator within twenty (20) days of a Party's receipt of a Party's demand for arbitration.  The two Party-appointed arbitrators shall have twenty (20) days from the appointment of the second arbitrator to agree on a third arbitrator who shall chair the arbitral tribunal.  Any arbitrator not timely appointed by the Parties shall be appointed by the AAA in accordance with the listing and ranking method in the Rules, and in any such procedure, each Party shall be given a limited number of strikes, excluding strikes for cause.  If any appointed arbitrator declines, resigns, becomes incapacitated, or otherwise refuses or fails to serve or to continue to serve as an arbitrator, the Party or arbitrators entitled to appoint such arbitrator shall promptly appoint a successor.  In the event that an arbitrator is objected to, the AAA shall decide whether such objection is valid and whether the challenged arbitrator shall be removed.  Any controversy concerning the jurisdiction of the arbitrators, whether the subject matter of an Agreement Dispute is suitable for resolution by arbitration, whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the interpretation of enforceability of this Article VIII shall be determined by the arbitrators.
 
Section 8.5           Arbitration Procedures.  Any hearing to be conducted shall be held no later than 180 days following appointment of the arbitrators or as soon thereafter as practicable.
 
Section 8.6           Discovery.  The arbitrators, consistent with the expedited nature of arbitration, shall permit limited discovery only of documents directly related to the issues in dispute.  There shall be no more than three depositions per party of no more than 8 hours each.  Notwithstanding the foregoing, each Party will, upon the written request of the other Party, promptly provide the other with copies of documents on which the producing Party may rely in support of a claim or defense or which are relevant to the issues raised in the Agreement Dispute.  All discovery, if any, shall be completed within 90 days following the appointment of the arbitrators or as soon thereafter as practicable.  Adherence to formal rules of evidence shall not be required and the arbitrators shall consider any evidence and testimony that the arbitrators determine to be relevant, in accordance with the Rules and procedures that the arbitrators determine to be appropriate.  In resolving any Agreement Dispute, the Parties intend that the arbitrators shall apply the substantive Laws of the State of Delaware, without regard to any choice of law principles thereof that would mandate the application of the Laws of another jurisdiction.  The Parties intend that the provisions to arbitrate set forth herein be valid, enforceable and irrevocable, and any award rendered by the arbitrators shall be final and binding on the Parties.  The Parties agree to comply and cause the members of their applicable Group to comply with any award made in any such arbitration proceedings and agree to enforcement of or entry of judgment upon such award, in any court of competent jurisdiction.
 
Section 8.7           Confidentiality of Proceedings.  Without limiting the provisions of the Rules, unless otherwise agreed in writing by or among the relevant Parties or permitted by this Agreement or as may be required by law or any regulatory authority, the relevant Parties shall keep, and shall cause the members of their applicable Group to keep, confidential all matters relating to the arbitration or the award.  The arbitral award shall be confidential; provided, however, that such award may be disclosed (i) to the extent reasonably necessary in any proceeding brought to enforce this agreement to arbitrate or any arbitral award or for entry of a judgment upon the award and (ii) to the extent otherwise required by Law or regulatory authority.
 
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Section 8.8           Pre-Hearing Procedure and Disposition.  Nothing contained herein is intended to or shall be construed to prevent any Party, from applying to any court of competent jurisdiction for injunctive or other similar equitable relief in connection with the subject matter of any Agreement Disputes, including to compel a party to arbitrate any Agreement Dispute, to prevent irreparable harm prior to the appointment of the arbitral tribunal or to require witnesses to obey subpoenas issued by the arbitrators.  Without prejudice to such equitable remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal's orders to that effect. The Parties agree to accept and honor any orders relating to interim or provisional remedies that are issued by the arbitrators and agree that any such interim order or remedy may be enforced, as necessary, in any court of competent jurisdiction.
 
Section 8.9           Continuity of Service and Performance.  During the course of resolving an Agreement Dispute pursuant to the provisions of this Article VIII, the Parties will continue to provide all other services and honor all other commitments under this Agreement and each Ancillary Agreement with respect to all matters not the subject of the Agreement Dispute in arbitration.
 
Section 8.10         Awards.  The arbitrators shall make an award and issue a reasoned opinion in writing setting forth the basis for such award within 30 days following the close of the hearing on the merits, or a soon thereafter as practicable.  The arbitrators shall be entitled, if appropriate, to award any remedy in such proceedings that is permitted under this Agreement and applicable Law, including monetary damages, specific performance and other forms of legal and equitable relief.  The Parties hereby waive any claim to exemplary, punitive, multiple or similar damages in excess of compensatory damages, attorneys' fees, costs and expenses of arbitration, except as may be expressly required by statute or as necessary to indemnify a Party for a Third Party Claim and the arbitrators are not empowered to and shall not award such damages.  Any final award must provide that the party against whom an award is issued shall comply with the order within a specified period of time, not to exceed 30 days.
 
Section 8.11         Costs.  Provided the amount in dispute is less than $25,000,000, if any Party attempts, unsuccessfully, to prevent an Agreement Dispute from being arbitrated such Party shall reimburse the prevailing party for all costs incurred in compelling arbitration.  Except as otherwise may be provided in any Ancillary Agreement, the costs of arbitration pursuant to this Article VIII shall be borne by the non-prevailing Party as determined by the arbitrator.
 
Section 8.12         Adherence to Time Limits.  In accepting appointment, each of the arbitrators shall commit that his or her schedule permits him or her to devote the reasonably necessary time and attention to the arbitration proceedings and to resolving the Agreement Dispute within the time periods set by this Agreement and by the Rules.  Any time limits set out in this Article VIII or in the Rules may be modified upon written agreement of the Parties and the arbitrators or by order of the arbitrators for good cause shown.  Any failure of the arbitrators to comply with such time limits or to render a final award within the time specified shall not impair the validity of the award or cause the award to be void or voidable, nor shall it be a basis for challenge of the validity or enforceability of the award or of the arbitration proceedings.
 
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ARTICLE IX

INSURANCE
 
Section 9.1           General Liability Policies to be Maintained by Arcosa.  Arcosa agrees and covenants (on its own behalf and on behalf of each other member of the Arcosa Group) that it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, annual occurrence-based primary, umbrella and excess liability insurance policies issued by insurers with an A.M. Best Company rating of "A" or better or Lloyds rating equivalent and naming Trinity and its subsidiaries and affiliates, as now or hereafter constituted (the "Trinity Insureds"), as additional insureds (together, the "Arcosa General Liability Policies").  The Arcosa General Liability Policies shall provide such additional insured coverage using ISO Forms CG 20 10 10 01 and CG 20 37 10 01 or substantially similar terms granting additional insured coverage for ongoing and completed operations of the named insured without reference to an extrinsic written agreement.  Such primary policies shall provide no less than $2 million in per occurrence and $4 million in aggregate annual limits.  If such primary policies are subject to a self-insured retention, as distinct from a deductible, such primary policies shall be subject to a per occurrence self-insured retention of no more than $2 million and an aggregate retention of no more than $4 million without Trinity's written consent, which consent shall not be unreasonably withheld. Such excess and umbrella policies shall attach immediately above such primary policies and shall provide no less than $100 million in annual limits.  The Arcosa General Liability Policies shall otherwise provide coverage with terms and conditions at least as favorable as Trinity's primary umbrella and excess liability policies in place as of the Effective Time. It is the intention of the Parties that the Arcosa General Liability Policies shall act as primary insurance with respect to any claims asserted against Trinity and/or Arcosa that arise out of the Arcosa Liabilities with an occurrence date after the Effective Time, and the Arcosa General Liability Policies shall expressly provide that they act as primary insurance with respect to any such claims.  The Arcosa General Liability Policies shall provide that such policies shall not be canceled without first giving thirty (30) days prior written notice thereof to Trinity.  Within thirty (30) days of the Effective Time and annually thereafter, Arcosa will provide Trinity with certificates of insurance evidencing compliance with this Section 9.1 (including evidence of renewal of insurance) signed by authorized representatives of the respective carrier(s).  Upon Trinity's request, Arcosa will provide Trinity reasonable access to all insurance documents for purposes of verifying Arcosa's compliance with this Section 9.1.  The Arcosa General Liability Policies shall include full waivers of subrogation in favor of Trinity and its subsidiaries and affiliates and each of their respective officers, directors, agents, servants, and employees.  In the event of a claim, occurrence or suit relating to any Trinity Insured and arising out of the Arcosa Liabilities, Arcosa will cooperate with Trinity in the provision of notice and the pursuit of coverage under the Arcosa General Liability Policies.
 
Section 9.2           General Liability Policies to be Maintained by Trinity.  Trinity agrees and covenants (on its own behalf and on behalf of each other member of the Trinity Group) that it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, annual occurrence-based primary, umbrella and excess liability insurance policies issued by insurers with an A.M. Best Company credit rating of "A" or better or Lloyds rating equivalent and naming Arcosa and its subsidiaries and affiliates, as now or hereafter constituted (the "Arcosa Insureds"), as additional insureds (together, the "Trinity General Liability Policies").  The Trinity General Liability Policies shall provide such additional insured coverage using ISO Forms CG 20 10 10 01 and CG 20 37 10 01 or substantially similar terms granting additional insured coverage for ongoing and completed operations of the named insured without reference to an extrinsic written agreement.  Such primary policies shall provide no less than $2 million in per occurrence and $4 million in aggregate annual limits.  If such primary policies are subject to a self-insured retention, as distinct from a deductible, such primary policies shall be subject to a per occurrence self-insured retention of no more than $2 million and an aggregate retention of no more than $4 million without Arcosa's written consent, which consent shall not be unreasonably withheld. Such excess and umbrella policies shall attach immediately above such primary policies and shall provide no less than $100 million in annual limits.  The Trinity General Liability Policies shall otherwise provide coverage with terms and conditions at least as favorable as Trinity's primary umbrella and excess liability policies in place as of the Effective Time. It is the intention of the Parties that the Trinity General Liability Policies shall act as primary insurance with respect to any claims asserted against Trinity and/or Arcosa that arise out of the Trinity Liabilities with an occurrence date after the Effective Time, and the Trinity General Liability Policies shall expressly provide that they act as primary insurance with respect to any such claims.  The Trinity General Liability Policies shall provide that such policies shall not be canceled without first giving thirty (30) days prior written notice thereof to Arcosa.  Within thirty (30) days of the Effective Time and annually thereafter, Trinity will provide Arcosa with certificates of insurance evidencing compliance with this Section 9.2 (including evidence of renewal of insurance) signed by authorized representatives of the respective carrier(s).  Upon Arcosa's request, Trinity will provide Arcosa reasonable access to all insurance documents for purposes of verifying Trinity's compliance with this Section 9.2.  The Trinity General Liability Policies shall include full waivers of subrogation in favor of Arcosa and its subsidiaries and affiliates and each of their respective officers, directors, agents, servants, and employees.  In the event of a claim, occurrence or suit relating to any Arcosa Insured and arising out of the Trinity Liabilities, Trinity will cooperate with Arcosa in the provision of notice and the pursuit of coverage under the Trinity General Liability Policies.
 
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Section 9.3           Policies and Allocation of Related Rights and Obligations.  Arcosa acknowledges and agrees (on its own behalf and on behalf of each other member of the Arcosa Group) that (i) neither Arcosa nor any other member of the Arcosa Group has any rights to or under any insurance policy issued to Trinity after the Effective Time, except as expressly provided in this Article IX and (ii) nothing in this Article IX shall be deemed to constitute (or to reflect) an assignment of any rights to or under any Third Party Shared Policy.
 
Section 9.4           First-Party Policies.  Arcosa agrees and covenants (on its own behalf and on behalf of each other member of the Arcosa Group) that as of the Effective Time it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, reasonable and appropriate commercial property policies and related coverages insuring the Arcosa Assets made the subject of this Agreement.  The Arcosa Group, whether collectively or individually, shall not be named as an insured, additional insured or loss payee under any first-party commercial property policies issued to Trinity after the Effective Time.
 
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Section 9.5           Claims-Made Liability Policies.  Arcosa agrees and covenants (on its own behalf and on behalf of each other member of the Arcosa Group) that as of the Effective Time it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, claims-made liability policies reasonable and appropriate to the Arcosa Business, including directors' and officers' liability and fiduciary liability policies with commercially reasonable terms and limits.  Neither the Arcosa Group, nor the Arcosa Indemnified Parties, whether collectively or individually, shall be named as insured or additional insured for conduct occurring after the Effective Time under any claims-made policy issued to Trinity.
 
Section 9.6           Crime/Fidelity Bonds.  Arcosa agrees and covenants (on its own behalf and on behalf of each other member of the Arcosa Group) that as of the Effective Time it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, commercial crime policies or fidelity bonds reasonable and appropriate to the Arcosa Business.  The Arcosa Group shall not be insured under any commercial crime policies or fidelity bonds issued to Trinity after the Effective Time.
 
Section 9.7           Occurrence Liability Policies.  As of the Effective Time, and subject to the requirements of Section 9.1, Arcosa shall procure and maintain primary, umbrella and excess occurrence-based liability policies reasonable and appropriate to the Arcosa Business, including commercial general liability, worker's compensation, employer's liability, products liability and automobile liability coverage with commercially reasonable terms and limits.  Except as provided in Section 9.2, neither the Arcosa Group, nor the Arcosa Indemnified Parties, whether collectively or individually, shall be named as insured or additional insured under any occurrence-based liability policies issued to Trinity after the Effective Time, including any commercial general liability, worker's compensation, employer's liability, products liability and automobile liability policies, whether primary, umbrella or excess.
 
Section 9.8           Third Party Shared Policies.
 
(a)          With respect to Third Party Shared Policies for claims that arise out of insured events, including an accident, illness, disease, occurrence or offense, taking place in whole and/or in part prior to the Effective Time, to the extent reasonably possible, Trinity will, or will cause the members of the Trinity Group that are insured thereunder and applicable insurance companies to (i) continue to provide Arcosa and any other member of the Arcosa Group with access to and coverage under the applicable Third Party Shared Policies, and (ii) reasonably cooperate with Arcosa and take commercially reasonable actions as may be necessary or advisable to assist Arcosa in submitting such claims under the applicable Third Party Shared Policies; provided, however, that Arcosa shall be responsible for any and all applicable deductibles, self-insured retentions, retrospective premiums, claims-handling charges, co-payments or any other charge or fee legally due and owing relating to such claims, and neither Trinity, any member of the Trinity Group, nor the insurance company shall be required to maintain such Third Party Shared Policies beyond their current terms.  For the avoidance of doubt, for any portion of an insured event taking place after the Effective Time, no payment for any damages, costs of defense, or other sums with respect to such claim shall be available to Arcosa under such Third Party Shared Policies.
 
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(b)          With respect to all Third Party Shared Policies, Arcosa agrees and covenants (on behalf of itself and each other member of the Arcosa Group, and each other Affiliate of Arcosa) not to make any claim or assert any rights against Trinity and any other member of the Trinity Group, or the unaffiliated Third Party insurers of such Third Party Shared Policies, except as expressly provided under this Section 9.8.
 
Section 9.9           Administration of Claims; Other Matters.
 
(a)          Administration.  With respect to (1) all claims under any Trinity insurance policies existing prior to the Effective Time and relating to the Arcosa Business; and (2) claims under any Third Party Shared Policies, from and after the Effective Time, Trinity or a member of the Trinity Group shall be responsible for the Insurance Administration and Claims Administration of such claims; provided, however, that the retention of such administrative responsibilities by Trinity or a member of the Trinity Group is in no way intended to limit, inhibit or preclude any right to insurance coverage for any Insured Claim of a named insured under such Third Party Shared Policies as contemplated by the terms of this Agreement; provided, further, that the retention of such administrative responsibilities by Trinity or a member of the Trinity Group shall not relieve the Person submitting any Insured Claim of the responsibility for reporting such Insured Claim accurately, completely and in a timely manner. At its discretion, and in accordance with the terms of the Third Party Shared Policies, Trinity may discharge its administrative responsibilities with respect to such Third Party Shared Policies by contracting for the provision of administrative services to any unaffiliated Person, including, after the Effective Time, Arcosa or any of its Affiliates. Trinity will use its commercially reasonable efforts to notify the appropriate member of the Arcosa Group of any such discharge. Arcosa shall reimburse Trinity for any costs incurred by Trinity related to Insurance Administration and Claims Administration to the extent such costs (which include defense, out-of-pocket expenses, and direct and indirect costs of employees or agents of Trinity providing the administrative services) are (i) not covered or paid under the Third Party Shared Policies, including as a result of any deductible or self-insured retention under the Third Party Shared Policies, and (ii) related to Arcosa Liabilities. Trinity or any member of the Trinity Group shall not settle any Insured Claim of Arcosa or any member of Arcosa Group under the Third Party Shared Policies without first obtaining the approval of Arcosa or such member of Arcosa Group. Such approval shall not be unreasonably withheld, delayed or conditioned.
 
(b)          Access To Policy Limits.
 
(i)           Where Arcosa Liabilities are specifically covered under a Third Party Shared Policy for periods prior to the Effective Time, or where such Third Party Shared Policy covers claims made after the Effective Time with respect to an insured event taking place prior to the Effective Time, then from and after the Effective Time, Arcosa may claim coverage for Insured Claims under such Third Party Shared Policy as and to the extent that such insurance is available up to the full extent of the available applicable limits of such Third Party Shared Policy (and may receive any Insurance Proceeds with respect thereto as contemplated by Section 9.9(d)), subject to the terms of this Section 9.9.

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(ii)         Where Trinity Liabilities are specifically covered under a Third Party Shared Policy for periods prior to the Effective Time, or where such Third Party Shared Policy covers claims made after the Effective Time with respect to an insured event taking place prior to the Effective Time, then from and after the Effective Time, Trinity may claim coverage for Insured Claims under such Third Party Shared Policy as and to the extent that such insurance is available up to the full extent of the available applicable limits of such Third Party Shared Policy (and may receive any Insurance Proceeds with respect thereto as contemplated by Section 9.9(d)), subject to the terms of this Section 9.9.
 
(c)          Claims Not Reimbursed.  Except as set forth in this Section 9.9, Trinity and Arcosa shall not be liable to one another (nor shall any member of the Trinity Group be liable to any member of the Arcosa Group) for claims, or portions of claims, not reimbursed by insurers under any Third Party Shared Policy for any reason, including coinsurance provisions, deductibles, quota share deductibles, self-insured retentions, bankruptcy or insolvency of any insurance carrier(s), Third Party Shared Policy limitations or restrictions, any coverage disputes, any failure to timely file a claim by Trinity or Arcosa (or any of the members of their respective Groups), or any defect in such claim or its processing. The liability of Trinity and Arcosa to one another for such claims is expressly limited to the amount of Insurance Proceeds received with respect to such claims and allocated to the respective Parties in accordance with Section 9.9(d) and Section 9.9(e). It is expressly understood that the foregoing provisions in this Section 9.9(c) shall not limit any Party's liability to any other Party for indemnification pursuant to Article VI.
 
(d)          Allocation of Insurance Proceeds. Insurance Proceeds received with respect to claims, costs and expenses under the Third Party Shared Policies shall be paid to or on behalf of Trinity under the relevant Third Party Shared Policy, and Trinity shall thereafter administer the Third Party Shared Policies, as appropriate, by retaining the Insurance Proceeds with respect to Trinity Liabilities, and by paying the Insurance Proceeds to Arcosa with respect to Arcosa Liabilities. In the event that the aggregate limits on any Third Party Shared Policies are exceeded by the aggregate of outstanding Insured Claims by the Parties or members of their respective Groups, the Parties agree to allocate the Insurance Proceeds received thereunder based upon their respective percentage of the total of their bona fide claims which would have been covered under such Third Party Shared Policy without regard to the limits of such Third Party Shared Policy, and any Party who has received Insurance Proceeds in excess of such Party's respective percentage of Insurance Proceeds shall pay to the other Party the appropriate amount so that each Party will have received its respective percentage of Insurance Proceeds pursuant hereto. Each of the Parties agrees to use commercially reasonable efforts to maximize available coverage under those Third Party Shared Policies applicable to it, and to take all commercially reasonable steps to recover from all responsible third parties, other than the Trinity Indemnified Parties and the Arcosa Indemnified Parties, in respect of an Insured Claim to the extent coverage limits under a Third Party Shared Policy have been exceeded or would be exceeded as a result of such Insured Claim; provided, however, that any allocation of Insurance Proceeds shall be made net of any recovery, whenever obtained, from such other responsible third parties.
 
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(e)          Allocation of Deductibles.  In the event that the Parties or members of their respective Groups have bona fide claims under any Third Party Shared Policy arising from the same occurrence and for which a deductible is payable, the Parties agree that the aggregate amount of the deductible paid shall be borne by the Parties in the same proportion which the Insurance Proceeds received by each such Party bears to the total Insurance Proceeds received under the applicable Third Party Shared Policy pursuant to Section 9.9(d), and any Party who has paid more than such allocable share of the deductible shall be entitled to receive from the other Party an appropriate amount so that each Party has borne its allocable share of the deductible pursuant hereto.
 
Section 9.10         Agreement for Waiver of Conflict and Shared Defense.  In the event that Insured Claims of more than one of the Parties exist relating to the same events or related events, to the extent reasonably possible, the Parties shall jointly defend and waive any conflict of interest necessary to the conduct of the joint defense. Nothing in this Article IX shall be construed to limit or otherwise alter in any way the obligations of the Parties, including those created by this Agreement, by operation of Law or otherwise.
 
Section 9.11         Cooperation.  The Parties agree to use (and cause the members in their respective Groups to use) their commercially reasonable efforts to cooperate with respect to the various insurance matters contemplated by this Article IX.
 
Section 9.12         Miscellaneous.  Nothing in this Agreement shall be deemed to restrict Arcosa or Trinity, or any members of their respective Groups, from acquiring at its own expense any insurance policy in respect of any Liabilities or covering any period. Except as otherwise provided in this Agreement, from and after the Effective Time, Arcosa and Trinity shall be responsible for obtaining and maintaining their respective insurance programs for their respective risk of loss and such insurance arrangements shall be separate programs apart from each other, and each of Arcosa and Trinity shall be responsible for all aspects of its own such insurance program. Notwithstanding Section 9.1, Arcosa acknowledges and agrees (on its own behalf and on behalf of each other member of the Arcosa Group) that Trinity has provided to Arcosa prior to the Effective Time all information necessary for Arcosa or the appropriate member of the Arcosa Group to obtain such insurance policies and insurance programs as Arcosa or the appropriate member of the Arcosa Group, in its sole judgment and discretion, deems necessary to cover any and all risk of loss related to the Arcosa Business.
 
ARTICLE X

MISCELLANEOUS
 
Section 10.1         Complete Agreement.  This Agreement, including the exhibits and schedules attached hereto, and the Ancillary Agreements (and the exhibits and schedules thereto) shall constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter. In the event of any conflict between the terms and conditions of the body of this Agreement and the terms and conditions of any Schedule, the terms and conditions of such Schedule shall control.  Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement, in the case of any conflict between the provisions of this Agreement and the provisions of any Ancillary Agreement, the provisions of this Agreement shall control; provided, however, except as set forth on Schedule 10.1, that in relation to (a) any matters concerning Taxes, the Tax Matters Agreement shall prevail over this Agreement and any other Ancillary Agreement, (b) any matters governed by the Employee Matters Agreement, the Employee Matters Agreement shall prevail over this Agreement or any other Ancillary Agreement, (c) the provision of support and other services after the Effective Time by the Arcosa Group to the Trinity Group, and vice versa, the Transition Services Agreement shall prevail over this Agreement or any other Ancillary Agreement and (d) any matters governed by the Intellectual Property Matters Agreement, the Intellectual Property Matters Agreement shall prevail over this Agreement or any other Ancillary Agreement.  It is the intention of the Parties that the Transfer Documents shall be consistent with the terms of this Agreement and the other Ancillary Agreements.  The Parties agree that the Transfer Documents are not intended and shall not be considered in any way to enhance, modify or decrease any of the rights or obligations of Trinity, Arcosa or any member of their respective Groups from those contained in this Agreement and the other Ancillary Agreements.
 
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Section 10.2         Ancillary Agreements.  Notwithstanding anything to the contrary contained in this Agreement, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements (excluding the Transfer Documents).
 
Section 10.3         Counterparts.  This Agreement may be executed in more than one counterparts, all of which shall be considered one and the same agreement, and, except as otherwise expressly provided in Section 1.3, shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to the other Parties.  Execution of this Agreement or any other documents pursuant to this Agreement by facsimile or other electronic copy of a signature shall be deemed to be, and shall have the same effect as, executed by an original signature.
 
Section 10.4         Survival of Agreements.  Except as otherwise contemplated by this Agreement or any Ancillary Agreement, all covenants and agreements of the Parties contained in this Agreement and each Ancillary Agreement shall survive the Effective Time and remain in full force and effect in accordance with their applicable terms.
 
Section 10.5         Costs and Expenses; Payment.
 
(a)          Except as expressly provided in this Agreement or any Ancillary Agreement, or as otherwise agreed to in writing by the Parties, Trinity shall bear all direct and indirect costs and expenses of any member of the Arcosa Group or Trinity Group incurred on or prior to the Effective Time, in connection with the preparation, execution, delivery and implementation of this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby; provided, that, except as otherwise expressly provided in this Agreement or any Ancillary Agreement, from and after the Distribution, each Party shall bear its own direct and indirect costs and expenses related to its performance of this Agreement or any Ancillary Agreement.  Except as expressly provided in this Agreement or any Ancillary Agreement, any amount payable pursuant to this Agreement or any Ancillary Agreement by one party (or any member of such party's Group) shall be paid within 30 days after presentation of an invoice or a written demand by the party entitled to receive such payments.  Such demand shall include documentation setting forth the basis for the amount payable.
 
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(b)          With respect to any expenses incurred pursuant to a request for further assurances granted under Section 2.9, the Parties agree that any and all fees and expenses incurred by either Party shall be borne and paid by the requesting Party; it being understood that no Party shall be obliged to incur any Third Party accounting, consulting, advisor, banking or legal fees, costs or expenses, and the requesting Party shall not be obligated to pay such fees, costs or expenses, unless such fee, cost or expense shall have had the prior written approval of the requesting Party; notwithstanding the foregoing, each Party shall be responsible for paying its own internal fees, costs and expenses (e.g., salaries of personnel). With respect to any fees, costs and expenses incurred by either Party in satisfying its obligations under Section 5.2, the requesting Party shall be responsible for the other Party's fees, costs and expenses; notwithstanding the foregoing, each Party shall be responsible for paying its own internal fees, costs and expenses (e.g., salaries and benefits of personnel).
 
Section 10.6         Notices.  All notices, requests, claims, demands and other communications under this Agreement and, to the extent applicable and unless otherwise provided therein, under each of the Ancillary Agreements, as between the Parties, shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt unless the day of receipt is not a Business Day, in which case it shall be deemed to have been duly given or made on the next Business Day) by delivery in person, by overnight courier service, by electronic e-mail with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.6):

 
If to Trinity:
   
   
Trinity Industries, Inc.
   
2525 N. Stemmons Freeway
   
Dallas, Texas 75207-2401
   
Attn: General Counsel
     
 
If to Arcosa:
   
   
Arcosa, Inc.
   
500 North Akard St, Suite 400
   
Dallas TX 75201
   
Attn: General Counsel

Section 10.7         Waiver.
 
(a)          Any provision of this Agreement may be waived if, and only if, such waiver is in writing and signed by the Party against whom the waiver is to be effective.
 
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(b)          No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
 
Section 10.8         Modification or Amendment.  This Agreement may only be amended, modified or supplemented, in whole or in part, in a writing signed on behalf of each of the Parties in the same manner as this Agreement and which makes reference to this Agreement.
 
Section 10.9         No Assignment; Binding Effect.  This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their permitted successors and assigns.  No Party to this Agreement may assign or delegate, by operation of law or otherwise, all or any portion of its rights, obligations or liabilities under this Agreement without the prior written consent of the other Party to this Agreement, which such Party may withhold in its absolute discretion, except that (x) each Party hereto may assign any or all of its rights and interests hereunder to an Affiliate and (y) each Party may assign any of its obligations hereunder to an Affiliate; provided, however, that such assignment shall not relieve such Party of any of its obligations hereunder unless agreed to by the non-assigning Party, and any attempt to do so shall be ineffective and void ab initio.  Subject to the preceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties hereto and their respective successors and permitted assigns.
 
Section 10.10       Termination.  Notwithstanding anything to the contrary herein, this Agreement (including Article VI hereof) may be terminated and the Distribution may be amended, modified or abandoned at any time prior to the Effective Time by and in the sole discretion of Trinity without the approval of Arcosa or the stockholders of Trinity.  In the event of such termination, this Agreement shall become null and void and no Party, nor any of its officers, directors or employees, shall have any Liability to any other Party or any other Person.  After the Effective Time, this Agreement may not be terminated except by an agreement in writing signed by each of the Parties.
 
Section 10.11       Payment Terms.  Except as expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount to be paid or reimbursed by any Party (and/or a member of such Party's Group), on the one hand, to any other Party (and/or a member of such Party's Group), on the other hand, under this Agreement shall be paid or reimbursed hereunder within twenty (20) Business Days after presentation of an undisputed invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.
 
Section 10.12       No Circumvention.  The Parties agree not to directly or indirectly take any actions, act in concert with any Person who takes an action, or cause or allow any member of any such Party's Group to take any actions (including the failure to take a reasonable action) such that the resulting effect is to materially undermine the effectiveness of any of the provisions of this Agreement or any Ancillary Agreement (including adversely affecting the rights or ability of any Party to successfully pursue indemnification, contribution or payment pursuant to Article VI).
 
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Section 10.13       Subsidiaries.  Each of the Parties shall cause (or with respect to an Affiliate that is not a Subsidiary, shall use commercially reasonable efforts to cause) to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary or Affiliate of such Party or by any Business Entity that becomes a Subsidiary or Affiliate of such Party on and after the Effective Time. This Agreement is being entered into by Trinity and Arcosa on behalf of themselves and the members of their respective groups (the Trinity Group and the Arcosa Group).  This Agreement shall constitute a direct obligation of each such entity and shall be deemed to have been readopted and affirmed on behalf of any Business Entity that becomes a Subsidiary or Affiliate of such Party on and after the Effective Time.  Either Party shall have the right, by giving notice to the other Party, to require that any Subsidiary of the other Party execute a counterpart to this Agreement to become bound by the provisions of this Agreement applicable to such Subsidiary.
 
Section 10.14       Third Party Beneficiaries.  Except (a) as provided in Article VI relating to Indemnified Parties and (b) as may specifically be provided in any Ancillary Agreement, this Agreement is solely for the benefit of each Party hereto and its respective Affiliates, successors or permitted assigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person, and should not be deemed to confer upon any third party any remedy, claim, liability, reimbursement, Proceedings or other right in excess of those existing without reference to this Agreement.
 
Section 10.15       Titles and Headings.  Titles and headings to Sections and Articles are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
 
Section 10.16       Exhibits and Schedules.  The exhibits and schedules hereto shall be construed with and be an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.  Nothing in the Exhibits or Schedules constitutes an admission of any liability or obligation of any member of the Trinity Group or the Arcosa Group or any of their respective Affiliates to any third party, nor, with respect to any third party, an admission against the interests of any member of the Trinity Group or the Arcosa Group or any of their respective Affiliates.  The inclusion of any item or liability or category of item or liability on any Exhibit or Schedule is made solely for purposes of allocating potential liabilities among the Parties and shall not be deemed as or construed to be an admission that any such liability exists.
 
Section 10.17       Public Announcements.  From and after the Effective Time, Trinity and Arcosa shall consult with each other before issuing, and give each other the opportunity to review and comment upon, that portion of any press release or other public statements that relates to the transactions contemplated by this Agreement or the Ancillary Agreements, and shall not issue any such press release or make any such public statement prior to such consultation, except (a) as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system; (b) for disclosures made that are substantially consistent with disclosure contained in any Distribution Disclosure Document or Pre-Separation Disclosure, or (c) as otherwise set forth on Schedule 10.17.
 
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Section 10.18       Governing Law.  This Agreement, and all actions, causes of action, or claims of any kind (whether at law, in equity, in contract, in tort, or otherwise) that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution, or performance of this Agreement (including any action, cause of action, or claim of any kind based upon, arising out of, or related to any representation or warranty made in, in connection with, or as an inducement to this Agreement) shall be governed by and construed in accordance with the law of the State of Delaware, irrespective of the choice of Laws principles of the State of Delaware, including without limitation Delaware laws relating to applicable statutes of limitations and burdens of proof and available remedies.
 
Section 10.19       Consent to Jurisdiction.  Subject to the provisions of Article VIII, each of the Parties hereto agrees that the appropriate, exclusive and convenient forum for any disputes between any of the Parties hereto arising out of this Agreement or the transactions contemplated hereby shall be brought and determined in the Court of Chancery of the State of Delaware; provided, that if jurisdiction is not then available in the Court of Chancery of the State of Delaware, then any such legal action or proceeding may be brought in any federal court located in the State of Delaware or any other Delaware state court (the "Delaware Courts").  Each of the Parties further agrees that delivery of notice or document by United States registered mail to such Party's respective address set forth in Section 10.6 shall be effective as to the contents of such notice or document; provided, that service of process or summons for any action, suit or proceeding in the Delaware Courts with respect to any matters to which it has submitted to jurisdiction in this Section 10.19 shall be effective only pursuant to service on a Party's registered agent for service of process.  Each of the Parties irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the Delaware Courts, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
 
Section 10.20       Specific Performance.  The Parties agree that irreparable damage would occur in the event that the provisions of this Agreement were not performed in accordance with their specific terms. Accordingly, it is hereby agreed that the Parties shall be entitled to (i) an injunction or injunctions to enforce specifically the terms and provisions hereof in any arbitration in accordance with Article VIII, (ii) provisional or temporary injunctive relief in accordance therewith in any Delaware Court, and (iii) enforcement of any such award of an arbitral tribunal or a Delaware Court in any court of the United States, or any other any court or tribunal sitting in any state of the United States or in any foreign country that has jurisdiction, this being in addition to any other remedy or relief to which they may be entitled.
 
Section 10.21       Waiver of Jury Trial. SUBJECT TO ARTICLE VIII, EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY JUDICIAL PROCEEDING IN WHICH ANY CLAIM OR COUNTERCLAIM (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT, OR OTHERWISE) ASSERTED BASED UPON, ARISING FROM, OR RELATED TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT, OR THE COURSE OF DEALING OR RELATIONSHIP BETWEEN THE PARTIES TO THIS AGREEMENT, INCLUDING THE NEGOTIATION, EXECUTION, AND PERFORMANCE OF SUCH AGREEMENT.  EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND THAT NO PARTY TO THIS AGREEMENT OR ANY ASSIGNEE, SUCCESSOR, OR REPRESENTATIVE OF ANY PARTY SHALL REQUEST A JURY TRIAL IN ANY SUCH PROCEEDING NOR SEEK TO CONSOLIDATE ANY SUCH PROCEEDING WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.21.
 
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Section 10.22       Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law, the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance here from.
 
Section 10.23       Construction.  The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.
 
Section 10.24       Authorization.  Each of the Parties hereby represents and warrants that it has the power and authority to execute, deliver and perform this Agreement, that this Agreement has been duly authorized by all necessary corporate action on the part of such Party, that this Agreement constitutes a legal, valid and binding obligation of each such Party enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors' rights generally and general equity principles.
 
Section 10.25       No Duplication; No Double Recovery.  Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances (including with respect to the rights, entitlements, obligations and recoveries that may arise out of one or more of the following Sections:  Section 6.1, Section 6.2 and Section 6.3).
 
Section 10.26       Tax Treatment of Payments. Unless otherwise required by a Final Determination, this Agreement or the Tax Matters Agreement or otherwise agreed to among the Parties, for U.S. federal Tax purposes, any payment made pursuant to this Agreement (other than any payment of interest pursuant to Section 10.11) by: (i) Arcosa to Trinity shall be treated for all Tax purposes as a distribution by Arcosa to Trinity with respect to stock of Arcosa occurring immediately before the Distribution; or (ii) Trinity to Arcosa shall be treated for all Tax purposes as a tax-free contribution by Trinity to Arcosa with respect to its stock occurring immediately before the Distribution; and in each case, no Party shall take any position inconsistent with such treatment. In the event that a Tax Authority asserts that a Party's treatment of a payment pursuant to this Agreement should be other than as set forth in the preceding sentence, such Party shall use its commercially reasonable efforts to contest such challenge.
 
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Section 10.27       Cooperation and General Knowledge Transfer.  Except as provided in any Ancillary Agreement, during the 180 days following the Effective Time, each Party shall use commercially reasonable efforts to provide (the "Disclosing Party") the other Party (the "Receiving Party") with reasonable access to its employees in order to assist the Receiving Party with general institutional knowledge transfer and to reasonably respond to questions.  Except as otherwise provided for in any Ancillary Agreement, such access, cooperation, and assistance will be provided as reasonably requested at no cost to the Receiving Party; provided, however, that if a Disclosing Party determines in its sole discretion that the Receiving Party's requests are unreasonable and/or unduly burdensome, to the level of interfering with the Disclosing Party's employees primary work duties, then the Disclosing Party may, by written notice, notify the Receiving Party that it intends to charge the Receiving Party for the Disclosing Party's out-of-pocket expenses related to responding to the unreasonable and overly burdensome request. If the Parties are unable to mutually reach an agreement for the provision of such services to be charged and the amount to be so charged, then the Disclosing Party shall not be required to fulfill or respond to such request. This Section 10.27 is intended to apply to general knowledge regarding the operations and conduct of the Trinity Business and Arcosa Business; provided, however, that notwithstanding anything to the contrary contained in this Section 10.27, this Section 10.27 is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements, and the provision of services to be provided pursuant to such services as covered by such Ancillary Agreement shall be controlled by such Ancillary Agreement.
 
Section 10.28       No Reliance on Other Party. The Parties hereto represent to each other that this Agreement is entered into with full consideration of any and all rights which the Parties hereto may have. The Parties hereto have relied upon their own knowledge and judgment and have conducted such investigations they and their in-house counsel have deemed appropriate regarding this Agreement and the Ancillary Agreements and their rights in connection with this Agreement and the Ancillary Agreements. The Parties hereto are not relying upon any representations or statements made by any other Party, or any such other Party's employees, agents, representatives or attorneys, regarding this Agreement, except to the extent such representations are expressly set forth or incorporated in this Agreement. The Parties hereto are not relying upon a legal duty, if one exists, on the part of any other Party (or any such other Party's employees, agents, representatives or attorneys) to disclose any information in connection with the execution of this Agreement or its preparation, it being expressly understood that no Party hereto shall ever assert any failure to disclose information on the part of any other Party as a ground for challenging this Agreement or any provision hereof.
 
[Signature page follows.  The remainder of this page is intentionally left blank.]

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first above written.
 
 
TRINITY INDUSTRIES, INC.
   
 
By:
/s/ Timothy R. Wallace
 
Name:
Timothy R. Wallace
 
Title:
Chairman, Chief Executive Officer and President
     
 
ARCOSA, INC.
   
 
By:
/s/ Antonio Carrillo
 
Name:
Antonio Carrillo
 
Title:
President and Chief Executive Officer
 
[Signature Page to Separation and Distribution Agreement]



(Back To Top)

Section 3: EX-3.1 (EXHIBIT 3.1)


Exhibit 3.1

Amendment to the Company’s Bylaws Effective November 1, 2018

The first sentence of Article III, Section 1 of the Bylaws of the Company is amended and restated to read as follows:

“The number of directors of the corporation shall be eight (8).”


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Section 4: EX-10.1 (EXHIBIT 10.1)


Exhibit 10.1

TRANSITION SERVICES AGREEMENT

by and between

TRINITY INDUSTRIES, INC.

and

ARCOSA, INC.

Dated as of October 31, 2018


ARTICLE I
 
AGREEMENT TO PROVIDE AND ACCEPT SERVICES
 
Section 1.01
Provision of Services
1
Section 1.02
Migration
2
Section 1.03
Reliance
2
Section 1.04
Cooperation
3
Section 1.05
Disclaimer of Warranty
3
Section 1.06
Governance
3
 
ARTICLE II
 
TERMS AND CONDITIONS; PAYMENT
 
Section 2.01
Terms and Conditions of Services
4
Section 2.02
Payments
5
Section 2.03
Taxes
6
Section 2.04
Use of Services
7
Section 2.05
Network Access
7
Section 2.06
Facilities Access
7
 
ARTICLE III
 
TERM OF SERVICES
 
Section 3.01
Term of Services; Early Termination of Services
9
Section 3.02
Early Termination of Services
9
Section 3.03
Extension of Services
9
 
ARTICLE IV
 

FORCE MAJEURE
9
 
ARTICLE V
 
LIABILITIES
 
Section 5.01
Consequential and Other Damages
10
Section 5.02
Limitation of Liability
10
Section 5.03
Indemnity
10

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ARTICLE VI
 
TERMINATION
 
Section 6.01
Termination
11
Section 6.02
Breach of Transition Services Agreement
11
Section 6.03
Sums Due
11
Section 6.04
Effect of Termination
11
 
ARTICLE VII
 
MISCELLANEOUS
 
Section 7.01
Confidentiality; Intellectual Property
12
Section 7.02
Independent Contractor
12
Section 7.03
Complete Agreement
12
Section 7.04
Counterparts
12
Section 7.05
Notices
12
Section 7.06
Waiver
13
Section 7.07
Modification or Amendment
13
Section 7.08
No Assignment; Binding Effect
13
Section 7.09
No Circumvention
14
Section 7.10
Subsidiaries
14
Section 7.11
Third Party Beneficiaries
14
Section 7.12
Titles and Headings
14
Section 7.13
Exhibits and Schedules
14
Section 7.14
Governing Law
14
Section 7.15
Disputes; Consent to Jurisdiction
15
Section 7.16
Specific Performance
15
Section 7.17
Waiver of Jury Trial
15
Section 7.18
Severability
16
Section 7.19
Construction
16
Section 7.20
Authorization
16
Section 7.21
No Duplication; No Double Recovery
16
Section 7.22
No Reliance on Other Party
16

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TRANSITION SERVICES AGREEMENT
 
This TRANSITION SERVICES AGREEMENT, dated as of October 31, 2018 (this “Agreement”), is by and between Trinity Industries, Inc., a Delaware corporation (“Trinity”), and Arcosa, Inc., a Delaware corporation (“Arcosa”).  Each of Trinity and Arcosa is sometimes referred to as a “Party” and collectively are sometimes referred to as the “Parties.”  All capitalized terms used and not defined in this Agreement shall have the meanings assigned to them in the Separation and Distribution Agreement (defined below).
 
RECITALS
 
WHEREAS, Trinity and Arcosa have entered into that certain Separation and Distribution Agreement, dated as of October 31, 2018 (the “Separation and Distribution Agreement”), pursuant to which, in accordance with the Internal Reorganization, Trinity was separated into two separate, independent, publicly-traded companies; (i) one comprising the Arcosa Business, which is owned and conducted directly or indirectly by Arcosa, all of the common stock of which was distributed to the Trinity stockholders, and (ii) one comprising the Trinity Business, which continues to be owned and conducted, directly or indirectly, by Trinity, all on the terms and conditions set forth in the Separation and Distribution Agreement; and
 
WHEREAS, in connection with the transactions contemplated by the Separation and Distribution Agreement, each of Trinity and Arcosa agreed to provide to the other certain services during a transition period commencing as of the Effective Time, on the terms and conditions set forth in this Agreement.
 
NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth hereafter, and intending to be legally bound hereby, the Parties hereby agree as follows:
 
ARTICLE I

AGREEMENT TO PROVIDE AND ACCEPT SERVICES
 
Section 1.01      Provision of Services.
 
(a)       On the terms and subject to the conditions contained in this Agreement and on the attached schedules (each a “Schedule” and collectively the “Schedules”) Trinity or Arcosa, as applicable, shall provide, or shall cause its Subsidiaries, Affiliates or Third Parties designated by it (such designated Subsidiaries, Affiliates and Third Parties, together with Trinity or Arcosa, as applicable, in its role as a service provider, referred to singly as a “Service Provider” and collectively as the “Service Providers”) to provide to the Arcosa Group or the Trinity Group, as applicable (the members of each such group in their role as a service recipient referred to singly as a “Service Recipient” and collectively as the “Service Recipients”) the services set forth on the Schedules (each a “Service” and collectively the “Services”).
 
(b)       Trinity or Arcosa, as applicable, in its role as Service Provider, shall make, in its sole discretion, any decisions as to which of the Service Providers (including the decisions to use Third Parties as designee Service Providers) shall provide the Services, provided that Trinity or Arcosa, as applicable, shall remain liable for the acts and omissions of Services Providers designated by it.


(c)       Each Service shall be provided in exchange for the consideration set forth with respect to such Service on the applicable Schedule.
 
(d)       If, within ninety (90) days following the Effective Time, a Service Recipient identifies a service that a Service Provider provided to it at any time during the twelve (12) month period prior to the Effective Time, and such service is not reflected on the Schedules or in any other Ancillary Agreements and is reasonably required by the Service Recipient in order to continue to operate the Arcosa Business or the Trinity Business, as applicable, in substantially the same manner in which the Arcosa Business or the Trinity Business, as applicable, was operated prior to the Effective Time, the Service Recipient may request that the Service Provider provide, or cause to be provided, such requested services (such additional service, an “Additional Service”).  The Service Provider shall negotiate with the Service Recipient to provide, or to cause to be provided, such requested Additional Service on commercially reasonable terms consistent with the principles underlying the service terms of the Services. In the event that the Parties reach an agreement with respect to providing such Additional Services, the Parties shall amend the applicable Schedules in writing to include such Additional Services (including the incremental Fees and term with respect to such Additional Services), and such Additional Services shall be deemed Services under this Agreement from the date of such amendment.
 
Section 1.02      Migration.  It is anticipated that the Service Recipients may request additional transition services projects, beyond the Services contemplated herein, relating to the migration of the Services from the Service Provider’s environment or facilities to Service Recipient’s (or its designee’s) environment or facilities, and the Service Provider will use reasonable efforts to cooperate with the Service Recipients with respect to such projects.  All such transition service projects shall be completed, and Service Provider shall have no further obligation to cooperate in connection therewith, as of the expiration of the term of the Service as set forth in the applicable Schedule.  The applicable Service Recipient shall reimburse the Service Providers for all costs and expenses (including the cost of employee time) incurred by such Service Providers in connection with such cooperation.
 
Section 1.03      Reliance.  The Service Providers shall be entitled to rely upon the genuineness, validity or truthfulness of any document, instrument or other writing presented by the Service Recipients in connection with this Agreement.  No Service Provider shall be liable for any impairment of any Service caused by its not receiving information, either timely or at all, or by its receiving inaccurate or incomplete information from the Service Recipients that is required or reasonably requested regarding that Service, provided that the Service Provider has notified the Service Recipient of the inadequacy of the information and used commercially reasonable efforts to provide such Service despite such inadequacy.
 
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Section 1.04      Cooperation.

(a)       The Service Providers and the Service Recipients shall, and shall cause their respective Affiliates and Subsidiaries to, cooperate with each other in all reasonable respects in matters relating to the provision and receipt of the Services.
 
(b)       The applicable Service Recipient shall (i) make available on a timely basis to the Service Providers all information and materials reasonably requested by such Service Providers to enable such Service Providers to provide the applicable Services; and (ii) provide to the Service Providers reasonable access to the premises of the applicable Service Recipient and any of its Affiliates to the extent necessary for such Service Providers to provide the applicable Services to the Service Recipient; provided that such access shall be subject to the Service Recipient’s applicable policies and procedures that have been provided to the Service Providers.
 
Section 1.05      Disclaimer of Warranty.
 
(a)       EACH OF TRINITY (ON BEHALF OF ITSELF AND EACH OTHER MEMBER OF THE TRINITY GROUP), AND ARCOSA (ON BEHALF OF ITSELF AND EACH OTHER MEMBER OF THE ARCOSA GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO PARTY TO THIS AGREEMENT IS REPRESENTING OR WARRANTING IN ANY WAY, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, AS TO THE SERVICES CONTEMPLATED HEREBY, AS TO ANY CONSENTS OR GOVERNMENTAL APPROVALS REQUIRED IN CONNECTION HEREWITH, AS TO NO INFRINGEMENT, VALIDITY OR ENFORCEABILITY OR ANY OTHER MATTER CONCERNING, ANY ASSETS OR BUSINESS OF SUCH PARTY.  ALL WARRANTIES OF HABITABILITY, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARISING UNDER THE UNIFORM COMMERCIAL CODE (OR SIMILAR FOREIGN LAWS), ARE HEREBY DISCLAIMED.
 
(b)       Each of Trinity (on behalf of itself and each member of the Trinity Group) and Arcosa (on behalf of itself and each member of the Arcosa Group) further understands and agrees that if the disclaimer of express or implied representations and warranties contained in Section 1.05(a) is held unenforceable or is unavailable for any reason under the Laws of any jurisdiction outside the United States or if, under the Laws of a jurisdiction outside the United States, both Trinity or any member of the Trinity Group, on the one hand, and Arcosa or any member of the Arcosa Group, on the other hand, are jointly or severally liable for any Trinity Liability or any Arcosa Liability, respectively, then, the Parties intend that, notwithstanding any provision to the contrary under the Laws of such foreign jurisdictions, the provisions of this Agreement (including the disclaimer of all representations and warranties, allocation of Liabilities among the Parties and their respective Subsidiaries, releases, indemnification and contribution of Liabilities) shall prevail for any and all purposes among the Parties and their respective Subsidiaries.
 
Section 1.06      Governance.
 
(a)       Each Party shall designate an individual to serve as an administrative representative for such Party (“Administrative Representative(s)”).  The Administrative Representative shall facilitate day-to-day communications and performance under this Agreement.  Each Party must promptly designate a replacement Administrative Representative in the event that its Administrative Representative is no longer employed by a Party or is unable to continue his or her role as an Administrative Representative.
 
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(b)       For each Schedule of Services, each Party shall designate a contact (each, a “Service Contact”), who shall (i) be responsible for providing direct supervision of the Services set forth on such Schedule and (ii) serve as the initial contact for the Administrative Representative for Trinity or Arcosa, as the case may be, for addressing issues related to the delivery of such Services.  Each party shall cause its Service Contact to reply promptly to inquiries related to the delivery of the applicable Services, but in no event more than five (5) Business Days following receipt of any such inquiry.  The initial Service Contacts for each Schedule shall be identified and named in the applicable Schedule.  Each Party must promptly designate a replacement Service Contact in the event that a Service Contact is no longer employed by a Party or is unable to continue his or her role as a Service Contact.
 
ARTICLE II

TERMS AND CONDITIONS; PAYMENT
 
Section 2.01      Terms and Conditions of Services.
 
(a)       Unless otherwise agreed by the Parties in writing, (i) the Service Providers shall be required to perform the Services using substantially the same quality, efficiency and standard of care as used in performing such Services in the twelve (12) months immediately prior to the Effective Time, and (ii) the Services shall be used by the Service Recipients for substantially the same purposes and in substantially the same time, place and manner as the Services have been used in the twelve (12) months immediately prior to the Effective Time; provided, however, that in no event shall the scope of any of the Services required to be performed hereunder exceed that described on the applicable Schedule.  Each Party shall comply with all Laws applicable to the provision and receipt of Services pursuant to this Agreement.  In no event shall any Service Provider be required to provide any Service that it reasonably believes does not comply with applicable Law.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES AGREE THAT THE SERVICE PROVIDERS SHALL NOT OWE ANY FIDUCIARY OR OTHER DUTIES (INCLUDING ANY DUTY OF LOYALTY OR DUTY OF CARE) TO THE SERVICE RECIPIENTS IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
 
(b)       Notwithstanding anything to the contrary in this Agreement, each Service Recipient acknowledges that the Service Provider may be providing services similar to the Services it provides for itself and its Affiliates, and the Service Provider reserves the right to modify the Services (i) if such modifications are applicable to all other recipients of the Services or services similar to the Services and (ii) to the extent necessary to comply with applicable Law or requirements of Governmental Authorities; provided that the Service Provider provides substantially the same advance notice of such modifications to the Service Recipient as the Service Provider provides to its Affiliates.
 
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(c)       The Service Recipients shall, and shall cause their applicable Affiliates to, eliminate their need for the provision of each Service by the Service Provider on or before the termination date for such Service as set forth on the applicable Schedule.
 
(d)       Under no circumstances shall any Service Provider be obligated to provide  any service requiring an opinion, advice or representation (e.g., legal opinions or advice, or tax opinions or advice).
 
(e)       Any Service Provider shall have the right, consistent with practices immediately prior to the Effective Time, to shut down temporarily for maintenance purposes the operation of the systems or facilities providing any Service whenever, in such Service Provider’s discretion, such action is necessary; provided that such Service Provider shall provide written notice of any such shutdown to the Service Recipient as reasonably in advance of such shutdown as practicable.  Such Service Provider shall be relieved of its obligations to provide the Services affected by such shutdown during the period that its systems or facilities are so shut down but shall use reasonable efforts to minimize each period of shutdown.
 
(f)        Each Service Provider shall use commercially reasonable efforts to obtain any Consents from Third Parties that are necessary in order to provide the Services.  If any such consent is not obtained, such Service Provider shall not be required to provide such Services but shall use commercially reasonable efforts to implement a reasonable alternative arrangement to provide the relevant Services.  All costs associated with obtaining such consents shall be borne one-half each by Trinity and Arcosa.  All costs associated with implementing and providing a reasonable alternative arrangement to provide the relevant Services shall be borne by the Service Recipient.
 
Section 2.02      Payments.
 
(a)       Each month, the Service Provider shall deliver a statement to the Service Recipient for Services provided to the Service Recipients during the preceding month, and each such statement shall set forth a brief description of each such Service and the amounts charged for such Service based on the consideration set forth in the applicable Schedule, the Rental Costs (as defined in Section 2.06(b)) or otherwise agreed by the Parties in writing (the “Fee”), as well as any Taxes, duties, imposts, charges, fees or other levies due and owing in accordance with Section 2.03 hereof, and the aggregate of such amounts shall be due and payable by the Service Recipient within thirty (30) days after the date of receipt of such statement.
 
(b)       At the Service Provider’s option, any or all of its designee Service Providers may individually invoice a Service Recipient for the Services that such designee Service Provider has provided during the preceding month to such Service Recipient.  Any amounts so invoiced by a designee Service Provider shall not be included on any invoice delivered by the Service Provider.
 
(c)       All invoices shall be denominated and paid in U.S. dollars unless (a) the Service Recipient had, in the twelve (12) months prior to the Effective Date, been invoiced or paid for such Services in a different currency or (b) otherwise indicated on the applicable Schedule, in which case such invoices shall be denominated and paid in such different currency.

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(d)      Any amount not paid when due pursuant to this Agreement shall bear interest at a rate per annum equal to the then effective Prime Rate plus 2% (or the maximum legal rate, whichever is lower), calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment. 
 
(e)       At the Service Recipient’s request, the Service Provider will provide reasonably detailed supporting documentation for the Fees invoiced to the Service Recipient hereunder and will respond promptly to any questions that the Service Recipient may have regarding such documentation and the related Fees.  In the event that the Service Recipient disputes any Fees invoiced hereunder, such Disputes shall be handled in accordance with Section 7.15.
 
Section 2.03      Taxes.
 
(a)       Except as expressly noted therein, the amounts set forth on the Schedules as the applicable consideration with respect to each Service do not include any Taxes, duties, imposts, charges, fees or other levies of whatever nature assessed on the provision of the Services.  All Taxes, duties, imposts, charges, fees or other levies imposed by applicable Law assessed on the provision of the Services (other than income taxes payable by a Service Provider on the Fees received hereunder) shall be the responsibility of the Service Recipients in addition to the Fees payable by such Service Recipients in accordance with Section 2.02 hereof.  The Service Recipients shall promptly reimburse the Service Providers for any Taxes, duties, imposts, charges, fees or other levies (other than income taxes payable by a Service Provider on the Fees received hereunder) imposed on the Service Providers or which the Service Providers shall have any obligation to collect with respect to or relating to this Agreement or the performance by a Service Provider of its obligations hereunder, along with interest and penalties related thereto to the extent such interest or penalties are related to the actions or inactions of the Service Recipients. Such reimbursement shall be in addition to the amounts required to be paid as set forth on the applicable Schedule and shall be made in accordance with Section 2.02.  The Service Recipients agree to use reasonable efforts to provide exemption certificates where available and to calculate any applicable sales and use Taxes and to make payment thereof directly to the appropriate taxing authority.
 
(b)       All payments by the Service Recipients under this Agreement shall be made without set-off and without any deduction or withholding for any Taxes, duties, imposts, charges or fees or other levies, unless the obligation to make such deduction or withholding is imposed by Law.  In the event that applicable Law requires that an amount in respect of any Taxes, duties, imposts, charges, fees or other levies be withheld from any payment by the Service Recipients to a Service Provider under this Agreement, the amount payable to the Service Provider shall be increased as necessary so that, after the Service Recipients have withheld amounts required by applicable Law, the Service Provider receives an amount equal to the amount it would have received had no such withholding been required, and the Service Recipients shall withhold such Taxes, duties, imposts, charges, fees or other levies and pay such withheld amounts over to the applicable governmental authority in accordance with the requirements of the applicable Law and provide the Service Provider with a receipt confirming such payment.  The Service Providers shall reasonably cooperate with the Service Recipients to determine whether any such deduction or withholding applies to the payments hereunder, and if so, shall further reasonably cooperate to minimize applicable deduction or withholding.
 
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Section 2.04      Use of Services.  The Service Recipients shall not resell any Services to any Person whatsoever or permit the use of the Services by any Person other than in connection with the conduct of the operations of the Arcosa Business or the Trinity Business, as applicable, as conducted in the twelve (12) months immediately prior to the date hereof.
 
Section 2.05      Network Access.
 
(a)       The Service Provider may provide the Service Recipients with access to the Service Provider’s or its Affiliates’ computer hardware, computer software and information technology systems, including the data they contain (collectively, “Networks”) via a secure method selected by the Service Provider.  The Service Recipients shall only use (and will ensure that their employees, agents and subcontractors only use), and shall only have access to, the Networks for the purpose of receiving, and only to the extent required to receive, the Services.  The Service Recipients shall not permit their employees, agents or subcontractors (collectively, “Personnel”) to use or have access to the Networks except to the extent that (i) such Personnel (or such Personnel’s functional equivalent) had access to the Networks prior to the Effective Time, or (ii) the Service Provider has given prior written approval for such access.
 
(b)       The Service Recipients shall cause all of the Service Recipients’ Personnel having access to the Networks in connection with receipt of a Service to comply with all security guidelines (including physical security, network access, internet security, confidentiality and personal data security guidelines) of the Service Provider which the Service Provider provides to the Service Recipients in writing.

(c)       The Service Recipients shall ensure that they and their Personnel shall not: (i) use the Networks to develop software, process data or perform any work or services other than for the purpose of receiving the Services; (ii) break, interrupt, circumvent, adversely affect or attempt to break, interrupt, circumvent or adversely affect any security system or measure of the Service Provider; (iii) obtain, or attempt to obtain, access to any hardware, software or data stored in the Networks except to the extent necessary to receive the Services; or (iv) use, disclose or give access to any part of the Networks to any Third Party, other than their agents and subcontractors authorized by the Service Provider in accordance with this Section 2.05.  All user identification numbers and passwords for the Networks disclosed to the Service Recipients, and any information obtained from the use of the Networks shall be deemed Confidential Information of the Service Provider for purposes of Section 7.01.
 
(d)       If a Service Recipient or its Personnel breach any provision of this Section 2.05, such Service Recipient shall promptly notify the Service Provider of such breach and cooperate as requested by such Service Provider in any investigation and mitigation of such breach.
 
Section 2.06      Facilities Access.
 
(a)       In connection with, and as a part of, the Services set forth on the Facilities Schedule, the Service Provider hereby grants to the Service Recipient a limited right to use and access portions of each of the premises at certain facilities, in each case as listed in the Facilities Schedule (each, a “Shared Location” and collectively, the “Shared Locations”), for substantially the same purposes as used in the Arcosa Business or the Trinity Business, as applicable, in the twelve (12) months immediately prior to the Effective Time.
 
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(b)       For the period indicated on the Facilities Schedule with respect to each Shared  Location (the “Shared Location Term”) the Service Recipient shall have the right to use and occupy that portion of the Shared Locations, and to use that portion of the common areas related to the Shared Locations, that the Service Recipient uses and occupies as of the date hereof in substantially the same manner and on the same terms and conditions that the Service Recipient currently uses and occupies such space and, in any event, in accordance with the terms and conditions set forth herein.  During the Shared Location Term, with respect to each Shared Location (including all common areas related thereto), all costs relating to such Shared Location, including, rent, maintenance, water, sewer, telephone, electricity and gas service, common area charges, amounts of public liability, damage, fire, any extended coverage insurance as may be required hereunder, and any real estate property taxes owed by the Service Provider (together, the “Rental Costs”) shall be borne pro rata by the Service Provider, on the one hand, and the Service Recipient, on the other hand, based on the number of employees of the Service Provider and the Service Recipient occupying the Shared Locations.
 
(c)       The Service Recipient shall only permit its authorized Personnel and their business invitees to use the Shared Locations.  The Service Provider, or its Affiliates, shall have reasonable access to those portions of the Shared Locations used by the Service Recipient from time to time as the Service Provider deems reasonably necessary or desirable for the security, inspection or maintenance thereof. The Service Recipient agrees to maintain commercially appropriate and customary levels of property and liability insurance in respect of the portions of the Shared Locations it occupies and the activities conducted thereon.  The Service Recipient shall not make, and shall cause its personnel to refrain from making, any alterations or improvements to the Shared Locations without the prior written consent of the Service Provider.  The rights granted pursuant to this Section 2.06 shall be in the nature of a license only and shall not create or be deemed to create any leasehold or other estate or possessory rights in the Service Recipient or its personnel with respect to the Shared Locations and shall not include any right of assignment, sub-license or sub-leasehold to any Third Party.  The Service Recipient will have access to such Shared Location on a 24 hours-per-day, 7-days-per-week basis.
 
(d)       For the avoidance of doubt, Section 7.01 (Confidentiality) shall apply in all respects to Confidential Information disclosed by either Party pursuant to this Section 2.06. In connection with the provision of Services under this Section 2.06, the Parties shall cooperate to establish and implement reasonable and appropriate measures to minimize the disclosure of Confidential Information not required to perform the Services hereunder, including the establishment of electronic firewalls and the use of physical walls and barriers in the Shared Locations.
 
(e)       Upon the expiration or termination of each Shared Location Term, with respect to each Shared Location, the Service Recipient shall vacate its portion of the applicable Shared Location on or prior to the end of the Shared Location Term and will leave its portion of such Shared Location broom clean and in the same condition as such portion was in on the date of this Agreement, ordinary wear and tear excepted. The Service Provider shall use commercially reasonable efforts to coordinate vacating any such Shared Location by the Service Recipient so as to minimize business interruptions for all Parties to the extent reasonably possible.
 
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ARTICLE III

TERM OF SERVICES
 
Section 3.01      Term of Services; Early Termination of Services.  The provision of Services shall commence as of the Effective Time and shall continue until the date indicated for each such Service on the applicable Schedule unless terminated earlier pursuant to Section 3.02 or Article VI.
 
Section 3.02      Early Termination of Services.  Unless otherwise set forth in the applicable Schedule, any Schedule of Services or any individual Service making up a part of a Schedule of Services (including individual Services consisting of the use of each respective Shared Location pursuant to the Facilities Schedule) may be terminated prior to the end of the applicable term by the Service Recipient upon not less than thirty (30) days’ prior written notice (such notice shall specify the date termination is to be effective); provided, that the Service Recipients acknowledge and agree that in the event that any Service on a Schedule is interdependent with a Service on a different Schedule, such Schedules of Services must be terminated simultaneously; provided, further, that the early termination of an individual Service shall not affect the remaining Services on the applicable Schedule.  After any early termination of a Service, the Service Provider shall have no obligation to reinstate such Service at a time subsequent to the effective date of such termination.
 
Section 3.03      Extension of Services.  The term indicated for each Service on the applicable Schedule may not be extended except to the extent expressly set forth in such Schedule, as applicable.  To the extent the applicable Schedule for a Service expressly permits extension of such Service, such Service may be extended by the Service Recipient upon written notice provided to the Service Provider at least thirty (30) days prior to the end of the then-current term.
 
ARTICLE IV

FORCE MAJEURE
 
No Service Provider shall be liable for any Loss whatsoever arising out of any interruption of Service or delay or failure to perform under this Agreement that is due to acts of God, acts of a public enemy, acts of terrorism, acts of a nation or any state, territory, province or other political division thereof, fires, floods or other extreme weather event, epidemics, riots, theft, quarantine restrictions, freight embargoes or other similar causes beyond the reasonable control of such Service Provider.  In any such event, any affected Service Provider obligations under this Agreement shall be postponed for such time as its performance is suspended or delayed on account thereof.  Each Service Provider will promptly notify the Service Recipient, either orally or in writing, upon learning of the occurrence of such event of force majeure.  Upon the cessation of the force majeure event, such Service Provider will use commercially reasonable efforts to resume its performance with the least practicable delay.  In the event that any force majeure event prevents performance of any Services in accordance with this Agreement for more than fifteen (15) consecutive days, the Service Recipient shall be entitled to terminate such Services upon notice to the Service Provider without payment of any additional fees, costs or expenses in connection with such termination except for Fees for Services rendered prior to such force majeure event.
 
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ARTICLE V

LIABILITIES
 
Section 5.01      Consequential and Other Damages.  EXCEPT AS MAY BE AWARDED TO A THIRD PARTY IN CONNECTION WITH ANY THIRD PARTY CLAIM THAT IS SUBJECT TO THE INDEMNIFICATION OBLIGATIONS IN SECTION 5.03, IN NO EVENT SHALL TRINITY, ARCOSA OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR OTHER AGENTS BE LIABLE UNDER THIS AGREEMENT FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, AND IN NO EVENT SHALL TRINITY, ARCOSA OR ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR OTHER AGENTS BE LIABLE UNDER THIS AGREEMENT FOR LOST PROFITS, OPPORTUNITY COSTS, DIMINUTION IN VALUE OR DAMAGES BASED UPON A MULTIPLE OF EARNINGS OR SIMILAR FINANCIAL MEASURE, EVEN IF UNDER APPLICABLE LAW SUCH LOST PROFITS, OPPORTUNITY COSTS, DIMINUTION IN VALUE, OR SUCH DAMAGES WOULD NOT BE CONSIDERED CONSEQUENTIAL OR SPECIAL DAMAGES.
 
Section 5.02      Limitation of Liability.  EXCEPT AS MAY BE AWARDED TO A THIRD PARTY IN CONNECTION WITH ANY THIRD PARTY CLAIM THAT IS SUBJECT TO THE INDEMNIFICATION OBLIGATIONS IN SECTION 5.03, EACH OF TRINITY’S AND ARCOSA’S LIABILITY WITH RESPECT TO ITS ROLE AS A SERVICE PROVIDER UNDER THIS AGREEMENT OR ANY ACT OR FAILURE TO ACT IN CONNECTION WITH ITS ROLE AS A SERVICE PROVIDER UNDER THIS AGREEMENT  (INCLUDING THE PERFORMANCE OR BREACH HEREOF), OR FROM THE SALE, DELIVERY, PROVISION OR USE OF ANY SERVICE PROVIDED UNDER OR COVERED BY THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE FEES ACTUALLY PAID TO SUCH PARTY PURSUANT TO THIS AGREEMENT.
 
Section 5.03      Indemnity.
 
(a)       Each Party (the “Indemnifying Party”) shall indemnify, defend, release, discharge and hold harmless the other Party and its Affiliates and their respective current and former directors, officers, members, managers, employees and agents and each of the heirs, executors, successors and permitted assigns of any of the foregoing (collectively, the “Indemnified Parties”) from and against all Losses actually suffered or incurred by the  Indemnified Parties relating to, arising out of or resulting from (i) such Party’s material breach of this Agreement; (ii) any accident, injury to or death of persons or loss of or damage to property occurring on or about any portion of the Shared Locations then used or occupied by the Indemnifying Party during the Shared Location Term and arising out of the Indemnifying Party’s negligence or willful misconduct; or (iii) performance of any labor or services or the furnishing of any materials or other property by the Indemnifying Party in respect of any portion of the Shared Locations  then used or occupied by the Indemnifying Party.
 
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(b)       In the event that any claim or Proceeding is threatened in writing or commenced by a Third Party involving a claim for which a Party may be required to provide indemnity pursuant to this Agreement, the indemnification procedures set forth in Section 6.4 of the Separation and Distribution Agreement are hereby incorporated mutatis mutandis.
 
ARTICLE VI

TERMINATION
 
Section 6.01      Termination.
 
(a)       Notwithstanding anything in this Agreement to the contrary, the obligation of any Service Provider to provide or cause to be provided any Service shall cease on the earlier to occur of (i) the date on which the provision of such Services has terminated pursuant to Article III, or (ii) the date on which such Service is terminated by any Party in accordance with the terms of Section 6.01(b) or Section 6.02.  This Agreement shall terminate, and all provisions of this Agreement shall become null and void and of no further force and effect, except for the provisions set forth in Section 6.04, on the date on which all Services under this Agreement have expired or been terminated.
 
(b)       Either Party shall have the right to terminate this Agreement at any time upon notice and pursue any remedies available to it at law or in equity if (i) the other Party becomes insolvent or is adjudicated as bankrupt, or (ii) any action is taken by that Party or by others against that Party under any insolvency, bankruptcy or reorganization act, or if a Party makes an assignment for the benefit of creditors, or a receiver is appointed for a Party.
 
Section 6.02      Breach of Transition Services Agreement.   Either Party may terminate this Agreement immediately by providing written notice of such termination in the event of any material breach of this Agreement by the other Party, which breach is not cured within thirty (30) days after written notice of such breach is provided by the non-breaching Party.
 
Section 6.03      Sums Due.  In the event of a termination or expiration of this Agreement, the Service Providers shall be entitled to the payment of, and the Service Recipients shall within thirty (30) days pay to the Service Providers, all accrued amounts for Services, Taxes and other amounts due under this Agreement as of the date of termination or expiration.  Payments not made within thirty (30) days after termination or expiration of this Agreement that are not otherwise already subject to late charges shall be subject to the late charges as provided in Section 2.02.
 
Section 6.04      Effect of TerminationSections 1.05, 2.02, and 6.03 hereof, this Section 6.04 and Article V and Article VII shall survive any termination or expiration of this Agreement.
 
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ARTICLE VII

MISCELLANEOUS
 
Section 7.01      Confidentiality; Intellectual Property.
 
(a)       Section 7.5 (Confidentiality) of the Separation and Distribution Agreement shall govern the treatment of any Confidential Information disclosed under this Agreement.
 
(b)       Each Service Recipient acknowledges that it will not acquire any right, title or interest (including any license rights or rights of use) in any Intellectual Property that is owned by any Service Provider by reason of the provision of the Services provided under this Agreement.
 
Section 7.02      Independent Contractor.  Each of Trinity, Arcosa, the Service Providers and the Service Recipients shall be an independent contractor in the performance of its respective obligations hereunder.  Nothing in this Agreement shall create or be deemed to create a partnership, joint venture or a relationship of principal and agent or of employer and employee between Trinity and Arcosa, or between any Service Provider and a Service Recipient.  Any provision in this Agreement, or any action by a Service Provider, that may appear to give a Service Recipient the right to direct or control the Service Provider in performing under this Agreement means that the Service Provider shall follow the desires of the Service Recipient in results only.
 
Section 7.03      Complete Agreement.  This Agreement, including the exhibits and schedules attached hereto, the Separation and Distribution Agreement and the other Ancillary Agreements (and the exhibits and schedules thereto) shall constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter. In the event of any conflict between the terms and conditions of the body of this Agreement and the terms and conditions of any Schedule, the terms and conditions of such Schedule shall control.  Notwithstanding anything to the contrary in this Agreement, in the case of any conflict between the provisions of this Agreement and the provisions of the Separation and Distribution Agreement, the provisions of the Separation and Distribution Agreement shall control.
 
Section 7.04      Counterparts.  This Agreement may be executed in more than one counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to the other Party. Execution of this Agreement or any other documents pursuant to this Agreement by facsimile or other electronic copy of a signature shall be deemed to be, and shall have the same effect as, executed by an original signature.
 
Section 7.05      Notices.  All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt unless the day of receipt is not a Business Day, in which case it shall be deemed to have been duly given or made on the next Business Day) by delivery in person, by overnight courier service, by electronic e-mail with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 7.05):
 
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If to Trinity:
 
Trinity Industries, Inc.
2525 N. Stemmons Freeway
Dallas, Texas 75207-2401
Attn: General Counsel

If to Arcosa:
 
Arcosa, Inc.
500 North Akard St., Suite 400
Dallas, Texas  75201
Attn: General Counsel

Section 7.06      Waiver.
 
(a)       Any provision of this Agreement may be waived if, and only if, such waiver is in writing and signed by the Party against whom the waiver is to be effective.
 
(b)       No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
 
Section 7.07      Modification or Amendment.  This Agreement may only be amended, modified or supplemented, in whole or in part, in a writing signed on behalf of each of the Parties in the same manner as this Agreement and which makes reference to this Agreement.
 
Section 7.08      No Assignment; Binding Effect.  This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their permitted successors and assigns.  No Party to this Agreement may assign or delegate, by operation of law or otherwise, all or any portion of its rights, obligations or liabilities under this Agreement without the prior written consent of the other party to this Agreement, which such Party may withhold in its absolute discretion, except that (x) each Party hereto may assign any or all of its rights and interests hereunder to an Affiliate and (y) each Party may assign any of its obligations hereunder to an Affiliate; provided, however, that such assignment shall not relieve such Party of any of its obligations hereunder unless agreed to by the non-assigning Party, and any attempt to do so shall be ineffective and void ab initio.  Subject to the preceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties hereto and their respective successors and permitted assigns.
 
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Section 7.09      No Circumvention.  The Parties agree not to directly or indirectly take any actions, act in concert with any Person who takes an action, or cause or allow any member of any such Party’s Group to take any actions (including the failure to take a reasonable action) such that the resulting effect is to materially undermine the effectiveness of any of the provisions of this Agreement.
 
Section 7.10      Subsidiaries.  Each of the Parties shall cause (or with respect to an Affiliate that is not a Subsidiary, shall use commercially reasonable efforts to cause) to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary or Affiliate of such Party or by any Business Entity that becomes a Subsidiary or Affiliate of such Party on and after the Effective Time. This Agreement is being entered into by Trinity and Arcosa on behalf of themselves and the members of their respective groups (the Trinity Group and the Arcosa Group).  This Agreement shall constitute a direct obligation of each such entity and shall be deemed to have been readopted and affirmed on behalf of any Business Entity that becomes a Subsidiary or Affiliate of such Party on and after the Effective Time.  Either Party shall have the right, by giving notice to the other Party, to require that any Subsidiary of the other Party execute a counterpart to this Agreement to become bound by the provisions of this Agreement applicable to such Subsidiary.
 
Section 7.11      Third Party Beneficiaries.  Except (i) as provided in Article VI relating to Indemnified Parties this Agreement is solely for the benefit of each Party hereto and its respective Affiliates, successors or permitted assigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person, and should not be deemed to confer upon any third party any remedy, claim, liability, reimbursement, Proceedings or other right in excess of those existing without reference to this Agreement.
 
Section 7.12      Titles and Headings.  Titles and headings to Sections and Articles are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
 
Section 7.13      Exhibits and Schedules.  The exhibits and schedules hereto shall be construed with and be an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.  Nothing in the Exhibits or Schedules constitutes an admission of any liability or obligation of any member of the Trinity Group or the Arcosa Group or any of their respective Affiliates to any third party, nor, with respect to any third party, an admission against the interests of any member of the Trinity Group or the Arcosa Group or any of their respective Affiliates.
 
Section 7.14      Governing Law.  This Agreement, and all actions, causes of action, or claims of any kind (whether at law, in equity, in contract, in tort or otherwise) that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution, or performance of this Agreement (including any action, cause of action, or claim of any kind based upon, arising out of, or related to any representation or warranty made in, in connection with, or as an inducement to this Agreement) shall be governed by and construed in accordance with the Laws of the State of Delaware, irrespective of the choice of Laws principles of the State of Delaware, including without limitation Delaware laws relating to applicable statutes of limitations and burdens of proof and available remedies.
 
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Section 7.15      Disputes; Consent to Jurisdiction.
 
(a)       All Agreement Disputes will be resolved in accordance with the procedures set forth in Article VIII of the Separation and Distribution Agreement.
 
(b)       Subject to the provisions of Article VIII of the Separation and Distribution Agreement, each of the Parties hereto agrees that the appropriate, exclusive and convenient forum for any disputes between the Parties hereto arising out of this Agreement or the transactions contemplated hereby shall be brought and determined in the Court of Chancery of the State of Delaware, provided, that if jurisdiction is not then available in the Court of Chancery of the State of Delaware, then any such legal action or proceeding may be brought in any federal court located in the State of Delaware or any other Delaware state court (the “Delaware Courts”). Each of the Parties further agrees that delivery of notice or document by United States registered mail to such Party’s respective address set forth in Section 7.6 shall be effective as to the contents of such notice or document, provided that service of process or summons for any action, suit or proceeding in the Delaware Courts with respect to any matters to which it has submitted to jurisdiction in this Section 7.15 shall be effective only pursuant to service on a Party’s registered agent for service of process.  Each of the Parties irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the Delaware Courts, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
 
Section 7.16      Specific Performance.  The Parties agree that irreparable damage would occur in the event that the provisions of this Agreement were not performed in accordance with their specific terms. Accordingly, it is hereby agreed that the Parties shall be entitled to (i) an injunction or injunctions to enforce specifically the terms and provisions hereof in any arbitration in accordance with Article VIII of the Separation and Distribution Agreement, (ii) provisional or temporary injunctive relief in accordance therewith in any Delaware Court, and (iii) enforcement of any such award of an arbitral tribunal or a Delaware Court in any court of the United States, or any other any court or tribunal sitting in any state of the United States or in any foreign country that has jurisdiction, this being in addition to any other remedy or relief to which they may be entitled.
 
Section 7.17      Waiver of Jury Trial.  SUBJECT TO ARTICLE VIII OF THE SEPARATION AND DISTRIBUTION AGREEMENT, EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY JUDICIAL PROCEEDING IN WHICH ANY CLAIM OR COUNTERCLAIM (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT, OR OTHERWISE) ASSERTED BASED UPON, ARISING FROM, OR RELATED TO THIS AGREEMENT OR THE COURSE OF DEALING OR RELATIONSHIP BETWEEN THE PARTIES TO THIS AGREEMENT, INCLUDING THE NEGOTIATION, EXECUTION, AND PERFORMANCE OF THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND THAT NO PARTY TO THIS AGREEMENT OR ANY ASSIGNEE, SUCCESSOR, OR REPRESENTATIVE OF ANY PARTY SHALL REQUEST A JURY TRIAL IN ANY SUCH PROCEEDING NOR SEEK TO CONSOLIDATE ANY SUCH PROCEEDING WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.17.
 
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Section 7.18      Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law, the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom.
 
Section 7.19      Construction.  The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.
 
Section 7.20      Authorization.  Each of the Parties hereby represents and warrants that it has the power and authority to execute, deliver and perform this Agreement, that this Agreement has been duly authorized by all necessary corporate action on the part of such Party, that this Agreement constitutes a legal, valid and binding obligation of each such Party enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and general equity principles.
 
Section 7.21      No Duplication; No Double Recovery.  Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances.
 
Section 7.22      No Reliance on Other Party. The Parties hereto represent to each other that this Agreement is entered into with full consideration of any and all rights which the Parties hereto may have. The Parties hereto have relied upon their own knowledge and judgment and have conducted such investigations they and their in-house counsel have deemed appropriate regarding this Agreement and their rights in connection with this Agreement. The Parties hereto are not relying upon any representations or statements made by any other Party, or any such other Party’s employees, agents, representatives or attorneys, regarding this Agreement, except to the extent such representations are expressly set forth or incorporated in this Agreement. The Parties hereto are not relying upon a legal duty, if one exists, on the part of any other Party (or any such other Party’s employees, agents, representatives or attorneys) to disclose any information in connection with the execution of this Agreement or its preparation, it being expressly understood that no Party hereto shall ever assert any failure to disclose information on the part of any other Party as a ground for challenging this Agreement or any provision hereof.
 
[The remainder of this page has been intentionally left blank.  Signature pages follow.]

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IN WITNESS WHEREOF, the Parties have caused this Transition Services Agreement to be executed the day and year first above written.
 
 
TRINITY INDUSTRIES, INC.
   
 
By: /s/ Timothy R. Wallace
 
Name:  Timothy R. Wallace
 
Title:  Chief Executive Officer and President
   
 
ARCOSA, INC.
   
 
By: /s/ Antonio Carrillo
 
Name:  Antonio Carrillo
 
Title:  Chief Executive Officer and President



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Section 5: EX-10.2 (EXHIBIT 10.2)


Exhibit 10.2

TAX MATTERS AGREEMENT
 
by and between
 
TRINITY INDUSTRIES, INC.
 
and
 
ARCOSA, INC.
 
Dated as of October 31, 2018
 

TABLE OF CONTENTS
 
   Page
   
Section 1.
Definition of Terms
1
    
Section 2.
Allocation of Tax Liabilities
10
 
Section 2.01
General Rule
10
 
Section 2.02
Allocation of Income and Other Taxes
10
 
Section 2.03
Certain Employment Taxes; Equity-Based Awards
11
 
Section 2.04
Determination of Tax Attributable to the Arcosa Group
12
 
Section 2.05
Arcosa Liability
14
 
Section 2.06
Trinity Liability
14
   
Section 3.
Preparation and Filing of Tax Returns
14
 
Section 3.01
Trinity's Responsibility
14
 
Section 3.02
Arcosa's Responsibility
14
 
Section 3.03
Tax Returns for Transfer Taxes
14
 
Section 3.04
Tax Reporting Practices
15
 
Section 3.05
Consolidated or Combined Tax Returns
15
 
Section 3.06
Right to Review Tax Returns
15
 
Section 3.07
Arcosa Carrybacks and Claims for Refund
16
 
Section 3.08
Apportionment of Tax Attributes
16
     
Section 4.
Tax Payments
17
 
Section 4.01
Payment of Taxes With Respect to Certain Joint Returns
17
 
Section 4.02
Payment of Separate Company Taxes
17
 
Section 4.03
Indemnification Payments
18
     
Section 5.
Tax Refunds and Tax Benefits
18
 
Section 5.01
Tax Refunds
18
 
Section 5.02
Tax Benefits
18
     
Section 6.
Tax-Free Status
19
 
Section 6.01
Restrictions on Arcosa
19
 
Section 6.02
Restrictions on Trinity
20
 
Section 6.03
Procedures Regarding Opinions and Rulings
21
 
Section 6.04
Liability for Tax-Related Losses
22
     
Section 7.
Assistance and Cooperation
25
 
Section 7.01
Assistance and Cooperation
25
 
Section 7.02
Income Tax Return Information
26
 
Section 7.03
Reliance by Trinity
26
 
Section 7.04
Reliance by Arcosa
26
     
Section 8.
Tax Records
26
 
Section 8.01
Retention of Tax Records
26
 
Section 8.02
Access to Tax Records
27
 
Section 8.03
Preservation of Privilege
27

i

Section 9.
Tax Contests
27
 
Section 9.01
Notice
27
 
Section 9.02
Control of Tax Contests
28
     
Section 10.
Effective Date
29
     
Section 11.
Survival of Obligations
29
     
Section 12.
Treatment of Payments
29

Section 12.01
Treatment of Tax Indemnity Payments
29
 
Section 12.02
Interest Under This Agreement
29
     
Section 13.
Disagreements
30
 
Section 13.01
Discussion
30
 
Section 13.02
Escalation
30
 
Section 13.03
Referral to Tax Advisor
30
 
Section 13.04
Injunctive Relief
31
     
Section 14.
Late Payments
31
     
Section 15.
Expenses
31
     
Section 16.
General Provisions
31
 
Section 16.01
Addresses and Notices
31
 
Section 16.02
Binding Effect
32
 
Section 16.03
Waiver
32
 
Section 16.04
Severability
32
 
Section 16.05
Authority
32
 
Section 16.06
Further Action
32
 
Section 16.07
Integration
33
 
Section 16.08
Construction
33
 
Section 16.09
No Double Recovery
33
 
Section 16.10
Counterparts
33
 
Section 16.11
Governing Law
33
 
Section 16.12
Jurisdiction
34
 
Section 16.13
Waiver of Jury Trial
34
 
Section 16.14
Amendment
35
 
Section 16.15
Subsidiaries
35
 
Section 16.16
Successors
35
 
Section 16.17
Injunctions
35
 
Section 16.18
No Reliance on Other Company
35
 
Section 16.19
Consequential Damages
36

ii

TAX MATTERS AGREEMENT
 
This TAX MATTERS AGREEMENT (this "Agreement") is entered into as of October 31, 2018, by and among Trinity Industries, Inc. ("Trinity"), a Delaware corporation, and Arcosa, Inc. ("Arcosa"), a Delaware corporation and a wholly owned subsidiary of Trinity.  (Trinity and Arcosa are sometimes collectively referred to herein as the "Companies" and, as the context requires, individually referred to herein as the "Company").
 
RECITALS
 
WHEREAS, the board of directors of Trinity has determined that it is appropriate, desirable and in the best interests of Trinity and its stockholders to separate Trinity into two separate, independent, publicly-traded companies: (i) one comprising the Arcosa Business (as defined below), which shall be owned and conducted directly or indirectly by Arcosa, all of the common stock of which is intended to be distributed to Trinity stockholders, and (ii) one comprising the Trinity Business (as defined below), which shall continue to be owned and conducted, directly or indirectly, by Trinity;
 
WHEREAS, as of the date hereof, Trinity is the common parent of an affiliated group of corporations, including Arcosa, which has elected to file consolidated Federal Income Tax Returns;
 
WHEREAS, the Companies have undertaken the Contribution (as defined below);
 
WHEREAS, Trinity intends to undertake the Distribution (as defined below);
 
WHEREAS, the Companies intend for the Contribution and the Distribution to qualify for Tax-Free Status; and
 
WHEREAS, the Companies desire to provide for and agree upon the allocation between the Companies of liabilities, and entitlements to refunds thereof, for certain Taxes arising prior to, at the time of, and subsequent to the Distribution, to provide for and agree upon other matters relating to Taxes and to set forth certain covenants and indemnities relating to the Tax-Free Status of the Contribution and the Distribution.
 
NOW THEREFORE, in consideration of the mutual agreements contained herein, the Companies hereby agree as follows:
 
Section 1.         Definition of Terms.  For purposes of this Agreement (including the recitals hereof), the following terms have the following meanings:
 
"Active Trade or Business" means the active conduct (as defined in Section 355(b)(2) of the Code and the Treasury Regulations thereunder) of the Energy Equipment Business (as defined in the Ruling Request filed with the IRS on February 12, 2018, as supplemented through the Distribution Date, as conducted immediately prior to the Distribution.
 

"Adjustment Request" means any formal or informal claim or request filed with any Tax Authority, or with any administrative agency or court, for the adjustment, refund, or credit of Taxes, including (i) any amended Tax Return claiming adjustment to the Taxes as reported on the Tax Return or, if applicable, as previously adjusted, (ii) any claim for equitable recoupment or other offset, and (iii) any claim for refund or credit of Taxes previously paid.
  
"Affiliate" has the meaning set forth in the Separation and Distribution Agreement.
 
"Agreement" means this Tax Matters Agreement.
 
"Ancillary Agreement" has the meaning set forth in the Separation and Distribution Agreement.
 
"Arcosa" has the meaning provided in the first sentence of this Agreement.
 
"Arcosa Assets" has the meaning set forth in the Separation and Distribution Agreement.
 
"Arcosa Business" has the meaning set forth in the Separation and Distribution Agreement.
 
"Arcosa Capital Stock" means all classes or series of capital stock of Arcosa, including (i) the Arcosa Common Stock, (ii) all options, warrants and other rights to acquire such capital stock and (iii) all instruments properly treated as stock in Arcosa for U.S. federal income tax purposes.
 
"Arcosa Carryback" means any net operating loss, net capital loss, excess tax credit, or other similar Tax item of any member of the Arcosa Group which may or must be carried from one Tax Period to another prior Tax Period under the Code or other applicable Tax Law.
 
"Arcosa Common Stock" has the meaning set forth in the Separation and Distribution Agreement.
 
"Arcosa Entity" means an entity which will be a member of the Arcosa Group immediately after the Distribution.
 
"Arcosa Group" means (i) Arcosa and its Affiliates, as determined immediately after the Distribution, as well as (ii) any entity which (A) was an Affiliate of Trinity or an Affiliate of a member of the Arcosa Group described in clause (i), (B) conducted solely or predominantly the Arcosa Business, and (C) is no longer an Affiliate of Trinity as of the Distribution.
 
"Arcosa Liabilities" has the meaning set forth in the Separation and Distribution Agreement.
 
"Arcosa Separate Return" means any Tax Return of or including any member of the Arcosa Group (including any consolidated, combined or unitary return) that does not include any member of the Trinity Group.
 
"Board Certificate" has the meaning set forth in Section 6.01(d) of this Agreement.
 
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"Business Day" has the meaning set forth in the Separation and Distribution Agreement.
  
"Code" means the U.S. Internal Revenue Code of 1986, as amended.
 
"Companies" and "Company" have the meaning provided in the second sentence of this Agreement.
 
"Contribution" means the transfer of Arcosa Assets from Trinity to Arcosa and the assumption of Arcosa Liabilities by Arcosa, pursuant to the Separation.
 
"Controlling Party" has the meaning set forth in Section 9.02(c) of this Agreement.
 
"DGCL" means the Delaware General Corporation Law.
 
"Dispute" has the meaning set forth in Section 13 of this Agreement.
 
"Dispute Notice" has the meaning set forth in Section 13 of this Agreement.
 
"Distribution" has the meaning set forth in the Separation and Distribution Agreement.
 
"Distribution Date" means the date on which the Distribution occurs.
 
"Employee Matters Agreement" means the Employee Matters Agreement, dated as of October 31, 2018, by and among Trinity and Arcosa.
 
"Employment Tax" means any Tax the liability or responsibility for which is allocated pursuant to the Employee Matters Agreement.
 
"Equity-Based Award" means an equity-based award originally issued pursuant to the Fourth Amended and Restated Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Third Amended and Restated Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Second Amended and Restated Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Amended and Restated Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Trinity Industries, Inc. 1998 Stock Option and Incentive Plan or the Trinity Industries, Inc. 1993 Stock Option and Incentive Plan, whether in the form of restricted stock awards ("RSAs"), restricted stock units ("RSUs"), or performance based restricted stock units ("PBRSUs"), in respect of Trinity Common Stock, including for the purpose of Section 2.03 hereof, RSAs, RSUs or PBRSUs in respect of Arcosa Common Stock issued in connection with the Distribution.
 
"Federal Income Tax" means any Tax imposed by Subtitle A of the Code other than an Employment Tax, and any interest, penalties, additions to tax, or additional amounts in respect of the foregoing.
 
"Federal Other Tax" means any Tax imposed by the Code other than any Federal Income Taxes or Employment Taxes, and any interest, penalties, additions to tax, or additional amounts in respect of the foregoing.
 
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"Fifty-Percent or Greater Interest" has the meaning ascribed to such term for purposes of Sections 355(d) and (e) of the Code.
 
"Filing Date" has the meaning set forth in Section 6.04(d) of this Agreement.
 
"Final Determination" means the final resolution of liability for any Tax, which resolution may be for a specific issue or adjustment or for a taxable period, (i) by IRS Form 870 or 870-AD (or any successor forms thereto), on the date of acceptance by or on behalf of the taxpayer, or by a comparable form under the laws of a state, local, or foreign taxing jurisdiction, except that a Form 870 or 870-AD or comparable form shall not constitute a Final Determination to the extent that it reserves (whether by its terms or by operation of law) the right of the taxpayer to file a claim for refund or the right of the Tax Authority to assert a further deficiency in respect of such issue or adjustment or for such taxable period (as the case may be); (ii) by a decision, judgment, decree, or other order by a court of competent jurisdiction, which has become final and unappealable; (iii) by a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the laws of a state, local, or foreign taxing jurisdiction; (iv) by any allowance of a refund or credit in respect of an overpayment of a Tax, but only after the expiration of all periods during which such refund may be recovered (including by way of offset) by the jurisdiction imposing such Tax; (v) by a final settlement resulting from a treaty-based competent authority determination; or (vi) by any other final disposition, including by reason of the expiration of the applicable statute of limitations, the execution of a pre-filing agreement with the IRS or other Tax Authority, or by mutual agreement of the Companies.
 
"Foreign Income Tax" means any Tax imposed by any foreign country or any possession of the United States, or by any political subdivision of any foreign country or United States possession, which is an income tax as defined in Treasury Regulations Section 1.901-2, and any interest, penalties, additions to tax, or additional amounts in respect of the foregoing.
 
"Foreign Other Tax" means any Tax imposed by any foreign country or any possession of the United States, or by any political subdivision of any foreign country or United States possession other than any Foreign Income Taxes or Employment Taxes, and any interest, penalties, additions to tax, or additional amounts in respect of the foregoing.
 
"Gain Recognition Agreement" means a gain recognition agreement as described in Treasury Regulations Section 1.367(a)-8 or any successor provision thereto.
 
"Group" means the Trinity Group or the Arcosa Group, or both, as the context requires.
 
"Income Tax" means any Federal Income Tax, State Income Tax or Foreign Income Tax.
 
"Indemnitee" has the meaning set forth in Section 12.02 of this Agreement.
 
"Indemnitor" has the meaning set forth in Section 12.02 of this Agreement.
 
"IRS" means the United States Internal Revenue Service.
 
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"Joint Return" means any Tax Return that actually includes, by election or otherwise, one or more members of the Trinity Group together with one or more members of the Arcosa Group.
 
"Non-Controlling Party" has the meaning set forth in Section 9.02(c) of this Agreement.
 
"Notified Action" has the meaning set forth in Section 6.03(a) of this Agreement.
 
"Past Practices" has the meaning set forth in Section 3.04(b) of this Agreement.
 
"Payment Date" means (i) with respect to any Trinity Federal Consolidated Income Tax Return, (A) the due date for any required installment of estimated taxes determined under Section 6655 of the Code, (B) the due date (determined without regard to extensions) for filing the return determined under Section 6072 of the Code, or (C) the date the return is filed, as the case may be, and (ii) with respect to any other Tax Return, the corresponding dates determined under the applicable Tax Law.
 
"Payor" has the meaning set forth in Section 4.03 of this Agreement.
 
"Person" means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof, without regard to whether any entity is treated as disregarded for U.S. federal income tax purposes.
 
"Post-Distribution Period" means any Tax Period beginning after the Distribution Date and, in the case of any Straddle Period, the portion of such Tax Period beginning on the day after the Distribution Date.
 
"Pre-Distribution Period" means any Tax Period ending on or before the Distribution Date and, in the case of any Straddle Period, the portion of such Straddle Period ending on the Distribution Date.
 
"Preliminary Tax Advisor" has the meaning set forth in Section 13.03 of this Agreement.
 
"Prime Rate" means the base rate on corporate loans charged by JP Morgan Chase Bank from time to time, compounded daily on the basis of a year of 365 or 366 (as applicable) days and actual days elapsed.
 
"Privilege" means any privilege that may be asserted under applicable law, including, any privilege arising under or relating to the attorney-client relationship (including the attorney-client and work product privileges), the accountant-client privilege and any privilege relating to internal evaluation processes.
 
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"Proposed Acquisition Transaction" means a transaction or series of transactions (or any agreement, understanding or arrangement, within the meaning of Section 355(e) of the Code and Treasury Regulations Section 1.355-7, or any other regulations promulgated thereunder, to enter into a transaction or series of transactions), whether such transaction is supported by Arcosa management or shareholders, is a hostile acquisition, or otherwise, as a result of which Arcosa would merge or consolidate with any other Person or as a result of which any Person or any group of related Persons would (directly or indirectly) acquire, or have the right to acquire, from Arcosa and/or one or more holders of outstanding shares of Arcosa Capital Stock, a number of shares of Arcosa Capital Stock that would, when combined with any other changes in ownership of Arcosa Capital Stock pertinent for purposes of Section 355(e) of the Code, comprise 40% or more of (i) the value of all outstanding shares of stock of Arcosa as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series, or (ii) the total combined voting power of all outstanding shares of voting stock of Arcosa as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series.  Notwithstanding the foregoing, a Proposed Acquisition Transaction shall not include (i) the adoption by Arcosa of a shareholder rights plan or (ii) issuances by Arcosa that satisfy Safe Harbor VIII (relating to acquisitions in connection with a person's performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulations Section 1.355-7(d).  For purposes of determining whether a transaction constitutes an indirect acquisition, any recapitalization resulting in a shift of voting power or any redemption of shares of stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging shareholders.  This definition and the application thereof is intended to monitor compliance with Section 355(e) of the Code and shall be interpreted accordingly.  Any clarification of, or change in, Section 355(e) of the Code or regulations promulgated thereunder shall be incorporated in this definition and its interpretation.
 
"Representation Letters" means the statements of facts and representations, officer's certificates, representation letters and any other materials (including, without limitation, a Ruling Request and any related supplemental submissions to the IRS or other Tax Authority) delivered or deliverable by Trinity, its Affiliates or representatives thereof in connection with the rendering by Tax Advisors of the Tax Opinions and/or the issuance by the IRS or other Tax Authority of the Rulings.
 
"Required Party" has the meaning set forth in Section 4.03 of this Agreement.
 
"Responsible Company" means, with respect to any Tax Return, the Company having responsibility for preparing and filing such Tax Return under this Agreement.
 
"Retention Date" has the meaning set forth in Section 8.01 of this Agreement.
 
"Rulings" means the rulings by the IRS or other Tax Authorities deliverable to Trinity in connection with the Contribution and the Distribution or otherwise with respect to the Separation Transactions.
 
"Ruling Request" means any letter filed by Trinity with the IRS or other Tax Authority requesting a ruling regarding certain tax consequences of the Separation Transactions (including all attachments, exhibits, and other materials submitted with such ruling request letter) and any amendment or supplement to such ruling request letter.
 
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"Section 6.01(d) Acquisition Transaction" means any transaction or series of transactions that is not a Proposed Acquisition Transaction but would be a Proposed Acquisition Transaction if the percentage reflected in the definition of Proposed Acquisition Transaction were 25% instead of 40%.
 
"Separate Return" means a Trinity Separate Return or an Arcosa Separate Return, as the case may be.
 
"Separation" has the meaning set forth in the Separation and Distribution Agreement.
 
"Separation and Distribution Agreement" means the Separation and Distribution Agreement, as amended from time to time, by and among Trinity and Arcosa dated October 31, 2018.
 
"Separation Plan" means the diagram depicting the transactions undertaken in connection with the separation of the Arcosa Business from the Trinity Business, as provided to Arcosa by Trinity prior to the date hereof, as updated from time to time by Trinity at its sole discretion prior to the Distribution.
 
"Separation Transactions" means those transactions undertaken by the Companies and their Affiliates pursuant to the Separation Plan to separate ownership of the Arcosa Business from ownership of the Trinity Business.
 
"State Income Tax" means any Tax imposed by any state of the United States, by any political subdivision of any such state, or by the District of Columbia, which is imposed on or measured by net income, including state or local franchise or similar Taxes measured by net income, as well as any state or local franchise, capital or similar Taxes imposed in lieu of a tax imposed on or measured by net income, and any interest, penalties, additions to tax, or additional amounts in respect of the foregoing.
 
"State Other Tax" means any Tax imposed by any state of the United States, by any political subdivision of any such state, or by the District of Columbia, other than any State Income Taxes or Employment Taxes, and any interest, penalties, additions to tax, or additional amounts in respect of the foregoing.
 
"Straddle Period" means any Tax Period that begins before and ends after the Distribution Date.
 
"Tax" or "Taxes" means any income, gross income, gross receipts, profits, capital stock, franchise, withholding, payroll, social security, workers compensation, unemployment, disability, property, ad valorem, value added, stamp, excise, severance, occupation, service, sales, use, license, lease, transfer, import, export, alternative minimum, estimated or other tax (including any fee, assessment, or other charge in the nature of or in lieu of any tax), imposed by any governmental entity or political subdivision thereof, and any interest, penalty, additions to tax, or additional amounts in respect of the foregoing.
 
"Tax Advisor" means a tax counsel or accountant, in each case of recognized national standing.
 
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"Tax Attribute" means a net operating loss, net capital loss, unused investment credit, unused foreign tax credit, excess charitable contribution, general business credit, research and development credit, earnings and profits, basis, or any other Tax Item that could reduce a Tax or create a Tax Benefit.
 
"Tax Authority" means, with respect to any Tax, the governmental entity or political subdivision thereof that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such entity or subdivision.
 
"Tax Benefit" means any refund, credit, or other reduction in otherwise required liability for Taxes.
 
"Tax Contest" means an audit, review, examination, or any other administrative or judicial proceeding with the purpose or effect of redetermining Taxes (including any administrative or judicial review of any claim for refund).
 
"Tax-Free Status" means the qualification of the Contribution and the Distribution, taken together, (i) as a reorganization described in Sections 355(a) and 368(a)(1)(D) of the Code, (ii) as a transaction in which the stock distributed thereby is "qualified property" for purposes of Sections 355(d), 355(e) and 361(c) of the Code, and (iii) as a transaction in which Trinity, Arcosa and the shareholders of Trinity recognize no income or gain for U.S. federal income tax purposes pursuant to Sections 355, 361 and 1032 of the Code, other than, in the case of Trinity and Arcosa, intercompany items or excess loss accounts taken into account pursuant to the Treasury Regulations promulgated pursuant to Section 1502 of the Code.
 
"Tax Item" means, with respect to any Income Tax, any item of income, gain, loss, deduction, or credit.
 
"Tax Law" means the law of any governmental entity or political subdivision thereof relating to any Tax.
 
"Tax Opinions" means the opinions of Tax Advisors deliverable to Trinity in connection with the Contribution and the Distribution or otherwise with respect to the Separation Transactions.
 
"Tax Period" means, with respect to any Tax, the period for which the Tax is reported as provided under the Code or other applicable Tax Law.
 
"Tax Records" means any (i) Tax Returns, (ii) Tax Return workpapers, (iii) documentation relating to any Tax Contests, and (iv) any other books of account or records (whether or not in written, electronic or other tangible or intangible forms and whether or not stored on electronic or any other medium) required to be maintained under the Code or other applicable Tax Laws or under any record retention agreement with any Tax Authority, in each case filed with respect to or otherwise relating to Taxes.
 
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"Tax-Related Losses" means (i) all Taxes (including interest and penalties thereon) imposed pursuant to any settlement, Final Determination, judgment or otherwise; (ii) all accounting, legal and other professional fees, and court costs incurred in connection with such Taxes, as well as any other out-of-pocket costs incurred in connection with such Taxes; and (iii) all costs, expenses and damages associated with stockholder litigation or controversies and any amount paid by Trinity (or any Trinity Affiliate) or Arcosa (or any Arcosa Affiliate) in respect of the liability of shareholders, whether paid to shareholders or to the IRS or any other Tax Authority, in each case, resulting from the failure of the Contribution and the Distribution to have Tax-Free Status or from the failure of a Separation Transaction to have the tax treatment described in the Tax Opinions or the Rulings.
 
"Tax Return" or "Return" means any report of Taxes due, any claim for refund of Taxes paid, any information return with respect to Taxes, or any other similar report, statement, declaration, or document filed or required to be filed under the Code or other Tax Law with respect to Taxes, including any attachments, exhibits, or other materials submitted with any of the foregoing, and including any amendments or supplements to any of the foregoing.
 
"Transfer Pricing Adjustment" means (i) any proposed or actual allocation by a Tax Authority of any Tax Item between or among any member of the Trinity Group and any member of the Arcosa Group with respect to any Tax Period ending prior to or including the Distribution Date or (ii) any adjustments to allocations between or among any member of the Trinity Group and any member of the Arcosa Group pursuant to Treasury Regulations Section 1.482-1(a)(3) to reflect any transfer pricing study performed by an independent third party at Trinity's request with respect to the 2017 or 2018 taxable years.
 
"Transfer Taxes" means all sales, use, transfer, real property transfer, intangible, recordation, registration, documentary, stamp or similar Taxes imposed on the Separation Transactions (excluding, for the avoidance of doubt, any Income Taxes).
 
"Treasury Regulations" means the regulations promulgated from time to time under the Code as in effect for the relevant Tax Period.
 
"Trinity" has the meaning provided in the first sentence of this Agreement.
 
"Trinity Affiliated Group" means the affiliated group (as that term is defined in Section 1504 of the Code and the regulations thereunder) of which Trinity is the common parent.
 
"Trinity Business" has the meaning provided in the Separation and Distribution Agreement.
 
"Trinity Common Stock" has the meaning provided in the Separation and Distribution Agreement.
 
"Trinity Federal Consolidated Income Tax Return" means any United States federal Income Tax Return for the Trinity Affiliated Group.
 
"Trinity Group" means Trinity and its Affiliates, excluding any entity that is a member of the Arcosa Group, as determined immediately after the Distribution.
 
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"Trinity Separate Return" means any Tax Return of or including any member of the Trinity Group (including any consolidated, combined or unitary return) that does not include any member of the Arcosa Group.
 
"Unqualified Tax Opinion" means an unqualified "will" opinion of a Tax Advisor, which Tax Advisor is acceptable to Trinity, on which Trinity may rely to the effect that a transaction will not affect the Tax-Free Status.  Any such opinion must assume that the Contribution and the Distribution would have qualified for Tax-Free Status if the transaction in question did not occur.
 
Section 2.         Allocation of Tax Liabilities.
 
Section 2.01     General Rule.
 
(a)      Trinity Liability.  Trinity shall be liable for, and shall indemnify and hold harmless the Arcosa Group from and against any liability for, Taxes which are allocated to Trinity under this Section 2.
 
(b)      Arcosa Liability.  Arcosa shall be liable for, and shall indemnify and hold harmless the Trinity Group from and against any liability for, Taxes which are allocated to Arcosa under this Section 2.
 
Section 2.02     Allocation of Income and Other Taxes. Except as provided in Section 2.03, Section 2.05, or Section 2.06, Federal Income Tax, Federal Other Tax, State Income Tax, State Other Tax, Foreign Income Tax, and Foreign Other Tax shall be allocated as follows:
 
(a)      Allocation of Income Tax and Other Tax Relating to Joint Returns.

(i)          Allocation to Arcosa for Pre-Distribution Periods.  Arcosa shall be responsible for any and all Federal Income Taxes, Federal Other Taxes, State Income Taxes, State Other Taxes, Foreign Income Taxes, and Foreign Other Taxes due with respect to or required to be reported on any Joint Return (including any increase in such Tax as a result of a Final Determination), for which a payment to the relevant Tax Authority has not been made, or reflected as a separate accrual or within intercompany liability or asset accounts, prior to the date hereof, which Taxes are attributable to the Arcosa Group for all Pre-Distribution Periods, as determined pursuant to Section 2.04.

(ii)         Allocation to Trinity for Pre-Distribution Periods.  Trinity shall be responsible for any and all Federal Income Taxes, Federal Other Taxes, State Income Taxes, State Other Taxes, Foreign Income Taxes, and Foreign Other Taxes due with respect to or required to be reported on any Joint Return (including any increase in such Tax as a result of a Final Determination) other than those Taxes described in Section 2.02(a)(i) for all Pre-Distribution Periods.
 
(iii)        Post-Distribution Intercompany Adjustments.  The amount of Taxes allocable to Arcosa and Trinity, respectively, pursuant to Section 2.02(a) for the 2017 taxable year and the portion of the 2018 taxable year ending on the Distribution Date shall be increased or decreased, as applicable, to reflect any Transfer Pricing Adjustments performed by Trinity under Treasury Regulations Section 1.482-1(a)(3) following the Distribution Date.
 
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(b)      Allocation of Income Tax and Other Tax Relating to Separate Returns.
 
(i)          Trinity shall be responsible for any and all Federal Income Taxes, Federal Other Taxes, State Income Taxes, State Other Taxes, Foreign Income Taxes, and Foreign Other Taxes due with respect to or required to be reported on any Trinity Separate Return (including any increase in such Tax as a result of a Final Determination) for all Tax Periods.
 
(ii)         Arcosa shall be responsible for any and all Federal Income Taxes, Federal Other Taxes, State Income Taxes, State Other Taxes, Foreign Income Taxes, and Foreign Other Taxes due with respect to or required to be reported on any Arcosa Separate Return (including any increase in such Tax as a result of a Final Determination) for all Tax Periods.

Section 2.03     Certain Employment Taxes; Equity-Based Awards.
 
(a)      Allocation of Employment Taxes.  Unless otherwise expressly provided for herein, this Agreement, including Section 2 hereof, shall not apply with respect to Employment Taxes, and Employment Taxes shall be allocated as provided in the Employee Matters Agreement.
 
(b)      Allocation of Tax Deductions in Respect of Equity-Based Awards.
 
(i)            With respect to any Equity-Based Award that (x) is held by an employee of the Arcosa Group, and (y) vests (with respect to an RSA) or is settled (with respect to an RSU or PBRSU) within three (3) years after the Distribution Date:

(A)          Trinity (or the relevant member of the Trinity Group) shall be entitled to claim on its Tax Returns the amount of any Income Tax deductions associated with such vesting or settlement multiplied by a percentage calculated by dividing (x) the number of days in the applicable vesting period during which such employee was employed by the Trinity Group by (y) the total number of days in the applicable vesting period during which such employee was employed by the Trinity Group and Arcosa Group; provided, however, that any period of employment with a subsidiary of Trinity prior to the Distribution Date that becomes a subsidiary of Arcosa as of the Distribution Date shall be treated as employment with the Arcosa Group for purposes of this Section 2.03(b)(i); and
 
(B)          Arcosa (or the relevant member of the Arcosa Group) shall be entitled to claim on its Tax Returns the remainder of the applicable Income Tax deduction associated with such vesting or settlement as the case may be.
 
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(ii)           With respect to any Equity-Based Award that (x) is held by an employee of the Arcosa Group, and (y) vests (with respect to an RSA) or is settled (with respect to an RSU or PBRSU) more than three (3) years after the Distribution Date, Arcosa (or the relevant member of the Arcosa Group) shall be entitled to claim on its Tax Returns the amount of any Income Tax deductions associated with such vesting or settlement as the case may be.
 
(iii)          With respect to any Equity-Based Award that (x) is held by an employee of the Trinity Group, and (y) vests (with respect to an RSA) or is settled (with respect to an RSU or PBRSU) at any time following the Distribution Date (i.e., whether or not such vesting or settlement occurs within three (3) years, or more than three (3) years, after the Distribution Date), Trinity (or the relevant member of the Trinity Group) shall be entitled to claim on its Tax Returns the amount of any Income Tax deductions associated with such vesting or settlement as the case may be.
 
(c)      Treatment of Withholding Taxes and Employment Taxes in Respect of Equity-Based Awards in the Employee Matters Agreement; Reimbursement of Allocable Amount of Employer Portion of Employment Taxes for Certain Equity-Based Awards.  Section 4.02(h) of the Employee Matters Agreement shall govern withholding and reporting obligations in respect of Equity-Based Awards originally issued pursuant to the Fourth Amended and Restated Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Third Amended and Restated Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Second Amended and Restated Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Amended and Restated Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Trinity Industries, Inc. 2004 Stock Option and Incentive Plan, the Trinity Industries, Inc. 1998 Stock Option and Incentive Plan or the Trinity Industries, Inc. 1993 Stock Option and Incentive Plan; provided, however, that in the case of any Equity-Based Award governed by Section 2.03(b)(i), Trinity shall promptly remit to Arcosa an amount of cash equal to the employer's portion of any employment Taxes due as a result of the vesting (with respect to an RSA) or settlement (with respect to an RSU or PBRSU) of such Equity-Based Award multiplied by the percentage determined under Section 2.03(b)(i)(A).
 
(d)      Information Sharing.  Trinity shall promptly notify Arcosa, and Arcosa shall promptly notify Trinity, regarding the vesting (with respect to an RSA) or settlement (with respect to an RSU or PBRSU) of any Equity-Based Award to the extent that, as a result of such vesting or settlement, a member of the other Group may be entitled to a deduction or required to pay any Tax, or such information otherwise may be relevant to the preparation of any Tax Return or payment of any Tax by such other Group member.
 
Section 2.04     Determination of Tax Attributable to the Arcosa Group.
 
(a)      Federal Income Tax, State Income Tax, and Foreign Income Tax.  For purposes of Section 2.02(a)(i), the amount of Federal Income Taxes, State Income Taxes, and Foreign Income Taxes attributable to the Arcosa Group shall be as determined by Trinity on a pro forma Arcosa Group return prepared:
 
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