gatxfirstamendmenttosupp






                                                        EXECUTION VERSION                   FIRST AMENDMENT TO SUPPLY AGREEMENT                                                  THIS FIRST AMENDMENT TO SUPPLY AGREEMENT (this “Amendment”) is made  and entered into as of the 24th day of May, 2018 (the “Effective Date”), by and between GATX  Corporation, a corporation organized under the laws of the State of New York (“Buyer”), and  Trinity Rail Group, LLC, a limited liability company organized under the laws of the State of  Delaware (“Seller”) (collectively, the “Parties”, and each individually, a “Party”).                                  W I T N E S S E T H:         WHEREAS, Buyer and Seller are parties to that certain Supply Agreement, dated as of  November 3, 2014 (the “Agreement”); and         WHEREAS, Buyer and Seller wish to amend the Agreement as more specifically  provided herein.         NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable  consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as  follows:   1.    Capitalized Terms.  Capitalized terms used but not defined herein shall have the  meanings ascribed to such terms in the Agreement.    2.    Section 1 of the Agreement is hereby amended by deleting the reference to “March 13,  2020” and replacing it with “December 31, 2023”.   3.    Section 2 of the Agreement is hereby amended by deleting the references to “eight  thousand nine hundred fifty” and “8,950” and replacing them with “thirteen thousand seven  hundred fifty” and “13,750”, respectively.   4.    Subsections 5.1.3.1(a)(ii) and 5.2.4.1(a)(ii) of the Agreement are each deleted in their  entirety and replaced with the following:  [*****]1.    5.    Section 5.1.3.2 of the Agreement is hereby amended by inserting the words [*****].   6.    Section 9.1.1 of the Agreement is hereby amended by inserting at the end of such Section  the following: “The final Order Year during the Term of this Agreement shall be from March 14,  2019 through March 13, 2020.  “Extension Year” means March 14, 2020 through March 13,  2021 for the first Extension Year, and thereafter each following period of twelve (12)  consecutive months. The final Extension Year, while less than twelve (12) consecutive months,  shall be from March 14, 2023 through December 31, 2023.                                                      1 [*****] Certain information on this page has been omitted and filed separately with the Commission.   Confidential treatment has been requested with respect to the omitted portions.     US-DOCS\101676921.2  





 






   7.    Section 9.1.2 of the Agreement is hereby deleted in its entirety and replaced with the  following:             9.1.2. Buyer shall place orders for tank cars from Exhibit A that will be scheduled to                 Deliver at the rate of (i) [*****]2 tank cars per month between the months of                 August 2016 through December 2019, inclusive, and (ii) [*****] tank cars per                 month between the months of January 2020 through December 2023, inclusive                 (as applicable for any particular month, the “Monthly Order Quantity”) for a                 total of 10,950 tank cars (“Scheduled Cars”).                8.    Section 9.1.3 of the Agreement is hereby amended by inserting the sentence “For clarity,  Buyer shall have no obligation to order any Unscheduled Cars during the Term after the  conclusion of the final Order Year, which shall conclude on March 13, 2020.” at end of such  Section.   9.    Section 9.2 of the Agreement is hereby deleted in its entirety and replaced with the  following:          9.2.  Production Slot Allocation for Scheduled Cars.  Seller shall schedule (i) [*****]        production slots in each month for the months of August 2016 through December 2019,        inclusive, and (ii) [*****] production slots in each month for the months of January 2020        through December 2023, inclusive, for Scheduled Cars (“Allocated Production Slots”).         Notwithstanding the foregoing or anything to the contrary contained in this Agreement,        Seller will have no obligation to schedule more than (x) [*****] Allocated Production Slots        in any one month for the months of August 2016 through December 2019, inclusive, or (y)        [*****] Allocated  Production  Slots  in  any  one  month  for  the  months  of January 2020        through December 2023, inclusive, during the Term.  For the avoidance of doubt, accepted        Orders for Unscheduled Cars are not eligible for Allocated Production Slots and shall not        impact the scheduling or Delivery of Scheduled Cars in accordance with Section 9.6.1.    10.   Section 9.4 of the Agreement is hereby amended by (i) inserting the sentence “At the  beginning of each Extension Year, Seller and Buyer shall mutually agree to a list totaling  [*****] Railcars from Exhibit A for which Seller shall provide Buyer with monthly updates to  Buyer’s Estimated Base Sales Price(s) during such Extension Year (the “Extension Monthly  Price List”).” between the first and last sentences of such Section, and (ii) inserting the words “or  the Extension Monthly Price List (as applicable)” after the reference to “Monthly Price List” in  the last sentence of such Section.     11.   The fourth sentence of Section 9.6.1 of the Agreement is hereby deleted in its entirety  and replaced with the following:                                                      2 [*****] Certain information on this page has been omitted and filed separately with the Commission.   Confidential treatment has been requested with respect to the omitted portions.                                         2  US-DOCS\101676921.2  





 






                  Seller shall Deliver at least [*****]3.     12.   The reference “AND LAST LOOK” is hereby deleted from the heading to Section 15.   13.   Section 15.3 of the Agreement is hereby deleted in its entirety.   14.   The following is hereby added as a new Section 21.2.2 of the Agreement:            21.2.2 Notwithstanding anything to the contrary set forth in this Agreement, (i) Buyer                 may use Records in order to safely use, operate, repair, maintain, or modify                 any  Railcar,  to  fabricate  replacement  parts  and  to  perform  engineering                 modelling  for  repair,  maintenance  or  modification  to  any  Railcar,  and (ii)                 Buyer may disclose Records for any Railcar to (x) any subsidiary or affiliate                 of Buyer, (y) any prospective or actual Third Party purchaser of the Railcar                 from Buyer, or (z) any Third Party for the purpose of permitting such Third                 Party  to  safely  use,  operate,  repair,  maintain,  or  modify  any  Railcar,  to                 fabricate replacement parts or to  perform  engineering modelling for  repair,                 maintenance or modification to any Railcar.                15.   Section 21.4 of the Agreement is hereby deleted in its entirety and replaced with the  following:         21.4  Confidentiality.                           21.4.1 For purposes of this Section 21.4, (x) “Seller’s Confidential Information” shall                 mean information regarding the Seller’s [*****] regards as proprietary and                 confidential, including, without limitation, [*****] and (4) Specification; (y)                 “Buyer’s Confidential Information” shall mean [*****]; and (z) “Confidential                 Information”  shall  mean  (1)  Seller’s  Confidential  Information  when  the                 Disclosing  Party  (as  defined  below)  is  Seller,  (2)  Buyer’s  Confidential                 Information  when  the  Disclosing  Party  is  Buyer,  and  (3)  terms  of  this                 Agreement redacted in the publicly available copy of this Agreement filed with                 the SEC.                        21.4.2 In the course of performance hereunder, each of Buyer and Seller (with respect                 to Confidential Information disclosed by such Party, the “Disclosing Party”)                 will disclose to the other Party (the “Receiving Party”), whether in written,                 electronic,  or  oral  form,  Confidential  Information  that  the  Disclosing  Party                 regards as proprietary and confidential.  The Receiving Party agrees to hold                 the Confidential Information disclosed to it by or on behalf of the Disclosing                 Party in confidence, to take commercially reasonable precautions to protect                 such  Confidential  Information  from  disclosure  and  to  use  the  Confidential                                                    3 [*****] Certain information on this page has been omitted and filed separately with the Commission.         Confidential treatment has been requested with respect to the omitted portions.                                         3  US-DOCS\101676921.2  





 






                  Information only in connection with the performance of its obligations under                 this Agreement, in each case for a period of [*****]4 years from the date of                 disclosure.  Subject  to  Section 21.4.6 hereof, the Receiving Party shall not                 disclose  any  Confidential  Information  to  any  of  its  employees  unless  such                 employees  need  to  know  such  Confidential  Information  in  order  for  the                 Receiving  Party  to  perform  its  obligations  or  exercise  its  rights  hereunder;                 provided, however, that the Receiving Party takes commercially reasonable                 precautions  to  prevent  such  employee  from  (i)  disclosing  Confidential                 Information to other employees who do not need to know such Confidential                 Information  in  order  for  the  Receiving  Party  to  perform  its  obligations  or                 exercise its rights hereunder, and (ii) using Confidential Information in such                 employee’s  business  decisions  that  are  unrelated  to  the  Receiving  Party’s                 performance of its obligations or exercise of its rights under this Agreement.                  Notwithstanding the foregoing, Buyer shall be permitted to disclose the prices                 paid by Buyer for Railcars under this Agreement to its employees, Affiliates,                 Representatives or Third Parties (excluding customers, other than pursuant to                 Rule 107) where Buyer reasonably believes it is necessary in connection with                 the operation of its business, e.g., Rule 107 calculations, request of Buyer’s                  lender, etc.; provided, that Buyer shall only disclose such pricing information                 to the extent necessary to satisfy such business requirements.                      21.4.3 Notwithstanding the foregoing, the Receiving Party may disclose Confidential                 Information  to  any  of  its  legal,  financial  or  tax  planning  representatives                 (“Representatives”) who need to know such Confidential Information in order                 for  the  Receiving  Party  to  carry out  its  obligations  or  enforce  its  rights                 hereunder and who have been informed of such obligations, and the Receiving                 Party shall advise such Representatives to abide by this Section 21.4.  Each                 Party shall be responsible for any action or failure to act that would constitute                 a breach or other violation of this Section 21.4 by its Representatives.                           21.4.4 From and after the Effective Date, the Margin Schedule may not be disclosed                 to any of Buyer’s directors, officers, employees or Representatives who are                 not  members  of  Buyer’s  Clean  Team.   For  purposes  of  this  Agreement,                 “Buyer’s Clean Team” shall mean those officers, directors or employees of                 Buyer identified by title or Buyer’s Representatives, in each case as reasonably                 agreed to by the Parties prior to the Effective Date, but at a minimum, Buyer’s                 Clean  Team  shall  always  consist  of  at  least  Buyer’s  highest  ranking  legal,                 finance  and  compliance  officers; provided,  that  (a)  Buyer may  remove                 individuals  from  Buyer’s  Clean  Team  at  any  time  and  from  time  to  time                 without advance notice to Seller, and (b) in the event Buyer desires to add any                 individuals to Buyer’s Clean Team subsequent to the date hereof, Buyer shall                 provide Seller with the name and title of such individuals, and such individuals                 will  only  be  added  to  Buyer’s  Clean  Team  with  Seller’s  written  approval.                                                     4 [*****] Certain information on this page has been omitted and filed separately with the Commission.         Confidential treatment has been requested with respect to the omitted portions.                                        4  US-DOCS\101676921.2  





 






                  Upon the request of one Party to the other Party, the Parties shall enter into a                 Confidentiality  Agreement  substantially  in  the  form  of  the Parties’                 Confidentiality  Agreement,  dated  as  of  September  12,  2014 (the  “Margin                 Schedule  Review  Confidentiality  Agreement”)  in  order  to  facilitate  the                 consideration, evaluation and negotiation of any  adjustments  to  the Margin                 Schedule as contemplated in Section 5.4 of this Agreement (“Margin Schedule                 Review”).  Notwithstanding the foregoing, provided that the Parties have first                 entered  into  the  Margin  Schedule Review Confidentiality  Agreement,  the                 provisions of this Section 21.4.1 related to the Buyer’s Clean Team shall not                 apply  with  respect  to,  and  during  the  pendency  of,  the  Margin  Schedule                 Review.                         21.4.5 Seller’s Standard Manufacturing Cost and Seller’s actual cost for Railcars, or                 any component thereof,  shall  only  be  disclosed to  Buyer’s  Third  Party                 Reviewer as set forth in Exhibit G.                        21.4.6 Confidential Information does not include information that: (i) the Receiving                 Party can demonstrate was in its possession prior to being disclosed by the                 Disclosing Party hereunder and the source of the information was not under an                 obligation of confidentiality to the Disclosing Party; (ii) is now, or hereafter                 becomes, through no act or failure to act on the part of the Receiving Party,                 generally known to the public; (iii) is rightfully obtained from a Third Party                 not bound under an obligation of confidentiality to the Disclosing Party; or (iv)                 is independently developed by the Receiving Party without reference to or use                 of any Confidential Information.  The foregoing restrictions on disclosure of                 Confidential  Information  do  not  apply  to  any  disclosure  of  Confidential                 Information  with  respect  to  which  the  Receiving  Party  is  advised  by  legal                 counsel that such disclosure is necessary or compelled (a) under the federal                 securities laws or other applicable law, or by the rules and regulations of the                 Securities and Exchange Commission (the “SEC”) or of any stock exchange                 on which the Receiving Party’s stock is listed, or (b) pursuant to the terms of                 any deposition, interrogatory, formal litigation discovery request, subpoena,                 civil  investigative  demand,  court  order  or  similar  process  to  which  the                 Receiving  Party  is  subject; provided, that  the  Receiving  Party  notifies  the                 Disclosing  Party  (x)  as  promptly  as  reasonably  possible  following  its                 determination that such disclosure is necessary or compelled under sub-clause                 (a) above, and (y) as promptly as reasonably possible after service of such legal                 process and to the extent legally permissible so that the Disclosing Party may                 seek an appropriate protective order, confidential treatment, or other remedy.                  In  the  event  the  Receiving  Party  is  required  or  compelled  to  disclose                 Confidential Information pursuant to the immediately preceding sentence, the                 Receiving  Party  may  disclose  only  that  portion  of  such  Confidential                 Information with respect to which the Receiving Party has been advised by its                 counsel is required or compelled to be disclosed.                                                    5  US-DOCS\101676921.2  





 






            21.4.7 Upon  the  request  of  the  Disclosing  Party  following  the  expiration  or                 termination of this Agreement, the Receiving Party will return or destroy all                 of the Disclosing Party’s Confidential Information, except that the Receiving                 Party may retain Confidential Information of the Disclosing Party that is (i)                 necessary in connection with the enforcement of the Receiving Party’s rights                 under this Agreement, (ii) required to be maintained by the Receiving Party’s                 internal document retention policies or (iii) contained in an archived computer                 system backup in accordance with the Receiving Party’s security or disaster                 recovery procedures; provided, that any such retained or archived Confidential                 Information shall remain subject to the provisions of this Section 21.4 for so                 long as  it is  maintained  or archived; provided, further, a Receiving Party’s                 legal  or  IT  employees  may  access  such  retained  or  archived  Confidential                 Information solely to the extent necessary to perform their respective functions                 described under this Section 21.4.7.                      21.4.8 Except as may be required by the federal securities laws or other applicable                 law, or by the rules and regulations of the SEC or of any stock exchange on                 which  a  Party’s  stock  is  listed,  no  Party  will  make  public  the  existence  or                 content of this Agreement or the negotiations leading to or pursuant to this                 Agreement without the prior written consent of the other Party; provided, that                 no Party will be prohibited from disclosing the general nature of the business                 relationship established hereby at any time; provided, further, that the Parties                 agree that Buyer shall be permitted to file a copy of this Agreement with the                 SEC  and  in  connection  therewith  shall  request  confidential  treatment  for                 certain portions of this Agreement and certain of the Exhibits attached hereto                 as agreed by the Parties.          16.   The addresses for notices under Section 21.10 of the Agreement are hereby updated as  follows:                           If to Seller:     Trinity Rail Group, LLC                                            2525 N. Stemmons Freeway                                            Dallas, TX  75207                                            Attn:  Steven Barnett                                            Fax:  214.589.8819                                            Email:   Steve.Barnett@trin.net                                                                      If to Buyer:      [from the Effective Date to October 7, 2018]                                                                      GATX Corporation                                            222 West Adams Street                                            Chicago, IL  60606                                            Attn:  VP Fleet Management                                            Fax:  (312) 499-7536                                            Email:  vp-fpm@gatx.com                                         6  US-DOCS\101676921.2  





 






                                             [from and after October 8, 2018]                                                                                        GATX Corporation                                            233 S. Wacker Drive                                            Chicago, IL  60606                                            Attn:  VP Fleet Management                                            Fax:  (312) 499-7536                                            Email:  vp-fpm@gatx.com                           [For notices to the Parties’ respective legal counsel:]                                                    If to Seller:     Trinity Industries, Inc.                                            2525 N. Stemmons Freeway                                            Dallas, TX  75207                                            Attn: Chief Legal Officer                                                    If to Buyer:      [from the Effective Date to October 7, 2018]                                                                      GATX Corporation                                            222 West Adams Street                                            Chicago, IL  60606                                            Attn:  Associate General Counsel, Rail                                            Fax:  (312) 621-6648                                            Email:  Brian.Glassberg@gatx.com                                                                                        [from and after October 8, 2018]                                                                                        GATX Corporation                                            233 S. Wacker Drive                                            Chicago, IL  60606                                            Attn:  Associate General Counsel, Rail                                            Fax:  (312) 621-6648                                            Email:  Brian.Glassberg@gatx.com                                              17.   Effective as of January 1, 2020, with respect to Scheduled Cars with Allocated  Production Slots for the months of January 2020 through December 2023, inclusive, Exhibit A of  the Agreement will be deleted in its entirety and replaced with the version of Exhibit A attached  hereto as Attachment 1; provided, however, Exhibit A of the Agreement shall not be deleted for  purposes of any remaining Unscheduled Cars that must be ordered by Buyer between the  Effective Date of this Amendment and the expiration of the final Order Year.   18.   Exhibits E, F, G, H, J and L of the Agreement are hereby amended by inserting the words  “, as amended” following each reference to “November 3, 2014”.   19.   Exhibit G of the Agreement is hereby amended by deleting Section 1(b) of such Exhibit  and replacing it with the following:                                        7  US-DOCS\101676921.2  





 






         (b)   Buyer  may  initiate  a  Third  Party  Review  after  the  first  Order  Year  of  this        Agreement.  Thereafter, Buyer may request [*****]5.            20.   The Parties hereby agree to amend that certain Amended and Restated Margin Schedule,  dated as of January 30, 2017 (the “Second Amended Margin Schedule”), which shall be  contemporaneously executed and delivered by the Parties together with this Amendment.  This  Amendment shall not become effective until the Second Amended Margin Schedule has been  executed and delivered by the Parties.    21.  Miscellaneous.         (a)   Except as expressly amended and supplemented by this Amendment, the  provisions of the Agreement (including all Schedules and Exhibits thereto) are made effective or  are ratified and confirmed and remain in full force and effect, whichever the case may be.                (b)   This Amendment may be executed in several counterparts and via facsimile (or  other form of electronic transmission, including email), all of which taken together shall  constitute one single agreement between the Parties hereto.                                      [Signature Page Follows]                                                      5 [*****] Certain information on this page has been omitted and filed separately with the Commission.   Confidential treatment has been requested with respect to the omitted portions.                                        8  US-DOCS\101676921.2  





 






                                                                                       IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be  executed by their respective duly authorized officers as of the Effective Date.                                       GATX CORPORATION                                                                                                                                                        By:                                                                       Name:  Thomas Ellman                                      Title:  Executive Vice President &                                       President, Rail North America                                                                                                                  TRINITY RAIL GROUP, LLC                                                                                                                                                        By:                                                                       Name:  Paul Mauer                                      Title:  Senior Vice President and Chief Operations                                           Officer                       [Signature Page to First Amendment to Supply Agreement]    US-DOCS\101676921.2  





 






                                           Attachment 1                                                                                               Exhibit A                                                                                                [*****]6                                                      6 [*****] Certain information on this page has been omitted and filed separately with the Commission.   Confidential treatment has been requested with respect to the omitted portions.    US-DOCS\101676921.2