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Item 9A. Controls and Procedures

2022-02-17 compared with 2021-02-24 · 57 added, 53 removed, 227 unchanged (33% of the section changed)

3 unchanged sentences

Our Chief Executive and Chief Financial Officers are responsible for establishing and maintaining these procedures and, as required by the rules of the SEC, evaluating their effectiveness.

Based on their evaluation of our disclosure controls and procedures that took place as of the end of the period covered by this report, the Chief Executive and Chief Financial Officers believe that these procedures were effective to 1) ensure that we are able to collect, process, and disclose the information we are required to disclose in the reports we file with the SEC within the required time periods and 2) accumulate and communicate this information to our management, including our Chief Executive and Chief Financial Officers, to allow timely decisions regarding this disclosure.

Based on their evaluation of our disclosure controls and procedures that took place as of the end of the period covered by this report, the Chief Executive and Chief Financial Officers concluded that these procedures were effective to 1) ensure that we are able to collect, process, and disclose the information we are required to disclose in the reports we file with the SEC within the required time periods and 2) accumulate and communicate this information to our management, including our Chief Executive and Chief Financial Officers, to allow timely decisions regarding this disclosure.

Management's Annual Report on Internal Control over Financial Reporting.

17 unchanged sentences

and Subsidiaries (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2021, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December 31, 2020 and 2019, the related consolidated statements of operations, comprehensive income, cash flows, and stockholders' equity for each of the three years in the period ended December 31, 2020, and the related notes and our report dated February 24, 2021 expressed an unqualified opinion thereon.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December 31, 2021 and 2020, the related consolidated statements of operations, comprehensive income (loss), cash flows, and stockholders' equity for each of the three years in the period ended December 31, 2021, and the related notes and our report dated February 17, 2022 expressed an unqualified opinion thereon.

Basis for Opinion

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Other Information.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.

Not applicable.

Directors, Executive Officers, and Corporate Governance.

17 unchanged sentences

Stock options 300,000 $ 21.61

Restricted stock units 2,578,286 (1) $ —

Restricted stock awards 2,689,565 (1) $ —

Performance units 1,155,281 (1) $ —

9 unchanged sentences

At December 31, 2021, there were 117,626 stock units credited to the accounts of participants.

Also excludes information regarding the Trinity Industries Supplemental Profit Sharing Plan (“Supplemental Plan”, effective as of January 1, 2021, the Trinity Industries Inc.

Deferred Compensation Plan) for certain of its highly compensated employees.

Information about the Supplemental Plan is incorporated herein by reference from the Company's 2021 Proxy Statement, under the caption “Executive Compensation — Compensation Discussion and Analysis — Components of Compensation — Post-employment Benefits.” At December 31, 2020, there were 58,499 stock units credited to the accounts of participants under the Supplemental Plan.

Also excludes information regarding the Trinity Industries Inc.

Deferred Compensation Plan (the “Deferred Compensation Plan”) for certain of its highly compensated employees.

Information about the Deferred Compensation Plan is incorporated herein by reference from the Company's 2022 Proxy Statement, under the caption “Executive Compensation – Compensation Discussion and Analysis – Components of Compensation – Post-employment Benefits.” At December 31, 2021, there were 41,753 stock units credited to the accounts of participants under the Deferred Compensation Plan.

Certain Relationships and Related Transactions, and Director Independence.

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Index to Exhibits

(2.1) Separation and Distribution Agreement, dated as of October 31, 2018, by and between Trinity Industries, Inc.

and Arcosa, Inc.

(incorporated by reference to Exhibit 2.1 to our Form 8-K filed November 1, 2018).

(2.1) Purchase and Sale Agreement, dated November 3, 2021, by and between Trinity Industries, Inc.

and Rush Hour Intermediate II, LLC (incorporated by reference to Exhibit 2.1 to our Form 8-K filed November 4, 2021).

(3.1) Amended and Restated Certificate of Incorporation of Trinity Industries, Inc., effective May 11, 2015 (incorporated by reference to Exhibit 3.2 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2015).

(3.2) Amended and Restated By-Laws of Trinity Industries, Inc., effective December 9, 2020 (filed herewith).

(3.2) Amended and Restated By-Laws of Trinity Industries, Inc., effective May 3, 2021 (filed herewith).

(4.1) Specimen Common Stock Certificate of Trinity Industries, Inc.

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(4.2.3) Third Supplemental Indenture dated April 20, 2017, by and among Trinity Industries, Inc., certain of its subsidiaries, as guarantors, and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2017).

(4.2.4) 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 (incorporated by reference to Exhibit 10.6 to our Form 8-K filed November 1, 2018).

(4.2.4) Fifth Supplemental Indenture dated April 22, 2019, by and among Trinity Industries, Inc., TrinityRail Maintenance Services, Inc., and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2019).

(4.2.5) Form of 4.550% Senior Note due 2024 (included in Exhibit 4.2.1 and incorporated by reference to Exhibit 4.2 to our Form 8-K filed September 25, 2014).

(4.3) Description of the Registrant’s Securities Registered Under Section 12 of the Securities Exchange Act of 1934 (filed herewith).

(4.3) Description of the Registrant’s Securities Registered Under Section 12 of the Securities Exchange Act of 1934 ( incorporated by reference to Exhibit 4.3 to our Annual Report on Form 10-K for the annual period ended December 31, 2020 ).

(10.1) Form of Change in Control Agreement entered into between Trinity Industries, Inc.

and the Chief Executive Officer, and other senior executives (incorporated by reference to Exhibit 10.1 to our Form 8-K filed January 25, 2019).*

(10.2) 1993 Stock Option and Incentive Plan (incorporated by reference to Exhibit 4.1 of Registration Statement No.

33-73026 filed December 15, 1993).*

(10.2.1) Amendment No.

1 to the 1993 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.3.1 to our Annual Report on Form 10-K for the annual period ended December 31, 2016).*

(10.2.2) Amendment No.

2 to the 1993 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.3.2 to our Annual Report on Form 10-K for the annual period ended December 31, 2016).*

(10.2.3) Amendment No.

3 to the 1993 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.3.3 to our Annual Report on Form 10-K for the annual period ended December 31, 2016).*

(10.2.4) Amendment No.

4 to the 1993 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.3.4 to our Annual Report on Form 10-K for the annual period ended December 31, 2016).*

(10.2.5) Amendment No.

5 to the 1993 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.3.5 to our Annual Report on Form 10-K for the annual period ended December 31, 2016).*

(10.3) Deferred Compensation Plan (filed herewith).

(10.4) Supplemental Retirement Plan as Amended and Restated effective January 1, 2009 (incorporated by reference to Exhibit 10.4 to our Annual Report on Form 10-K for the annual period ended December 31, 2018).*

(10.4.1) Amendment No.

1 to the Supplemental Retirement Plan as Amended and Restated effective January 1, 2009 (incorporated by reference to Exhibit 10.4.1 to our Annual Report on Form 10-K for the annual period ended December 31, 2018).*

(10.2) Deferred Compensation Plan (incorporated by reference to Exhibit 10.3 to our Annual Report on Form 10-K for the annual period ended December 31, 2020).

(10.3) Trinity Industries, Inc.

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(10.5.5) Form of Restricted Stock Unit Agreement for Non-Employee Directors for grants issued commencing 2008 (incorporated by reference to Exhibit 10.7.2.1 to our Annual Report on Form 10-K for the annual period ended December 31, 2018).*

(10.7.6) Form of Restricted Stock Unit Agreement for grants issued commencing 2017-2018 (incorporated by reference to Exhibit 10.2 to our Form 8-K filed on May 3, 2017).*

(10.5.6) Form of Performance-Based Restricted Stock Unit Grant Agreement for grants issued commencing 2017-2018 (incorporated by reference to Exhibit 10.3 to our Form 8-K filed on May 3, 2017).*

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(10.5.10) Form of Non-Employee Director Restricted Stock Unit Agreement for grants issued commencing 2017 (incorporated by reference to Exhibit 10.6 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2017).*

(10.7.12) F orm of Notice of Grant of Stock Options (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020).*

(10.5.11) Form of Notice of Grant of Stock Options (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020).*

(10.6) Form of 2008 Deferred Compensation Plan and Agreement as amended and restated entered into between Trinity Industries, Inc.

6 unchanged sentences

Annual Incentive Plan (incorporated by reference to Exhibit 10.1 to our Form 8-K filed March 9, 2018).*

(10.8) Board Compensation Summary Sheet (filed herewith).

(10.9) 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 (incorporated by reference to Exhibit 10.5 to our Form 8-K filed on November 1, 2018).

1 unchanged sentence

1 to Amended and Restated Credit Agreement, dated as of July 17, 2020, by and among Trinity Industries, Inc., the lenders party thereto, and JPMorgan Chase Bank, as Administrative Agent (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2020).

(10.9.2) Amendment No.

2 to Amended and Restated Credit Agreement, dated as of March 16, 2021, by and among Trinity Industries, Inc., the lenders party thereto, and JPMorgan Chase Bank, as Administrative Agent (incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2021).

(10.9.3) Amendment No.

3 to Amended and Restated Credit Agreement, dated as of December 9, 2021, by and among Trinity Industries, Inc., the lenders party thereto, and JPMorgan Chase Bank, as Administrative Agent (filed herewith).

(10.9.4) Supplement to Subsidiary Guaranty, dated April 22, 2019, in favor of JPMorgan Chase Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2019).

(10.11) Fourth Amended and Restated Warehouse Loan Agreement dated as of March 15, 2018, among Trinity Industries Leasing Company, Trinity Rail Leasing Warehouse Trust, the banks and other lending institutions from time to time party thereto, Credit Suisse AG, New York Branch, as Agent, and Wilmington Trust Company, as Collateral Agent and Depositary (incorporated by reference to Exhibit 10.1 to our Form 8-K filed on March 19, 2018).

(10.10) Fifth Amended and Restated Warehouse Loan Agreement dated as of March 15, 2021, among Trinity Industries Leasing Company, Trinity Rail Leasing Warehouse Trust, the banks and other lending institutions from time to time party thereto, Credit Suisse AG, New York Branch, as Agent, and Wilmington Trust Company, as Collateral Agent and Depositary (incorporated by reference to Exhibit 10.1 to our Form 8-K filed on March 17, 2021).

(10.11) Master Indenture dated November 5, 2009, between Trinity Rail Leasing VII LLC and Wilmington Trust Company, as indenture trustee (incorporated by reference to Exhibit 10.20 to our Annual Report on Form 10-K for the annual period ended December 31, 2014).

(10.13) Master Indenture dated May 24, 2006, between Trinity Rail Leasing V L.P.

and Wilmington Trust Company, as indenture trustee (incorporated by reference to Exhibit 10.18.1 to our Annual Report on Form 10-K for the annual period ended December 31, 2016).

(10.14) Board Compensation Summary Sheet (filed herewith).*

(10.12) Indenture dated as of October 25, 2010, between Trinity Rail Leasing 2010 LLC and Wilmington Trust Company, as indenture trustee (incorporated by reference to Exhibit 10.20 to our Annual Report on Form 10-K for the annual period ended December 31, 2015).

(10.16) Master Indenture dated July 6, 2011, among TRIP Rail Master Funding LLC and Wilmington Trust Company, as indenture trustee (incorporated by reference to Exhibit 10.21.1 to our Annual Report on Form 10-K for the annual period ended December 31, 2016).

(10.13) Form of Indemnification Agreement between Trinity Industries, Inc.

and certain directors and executive officers (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2019).*

(10.18) Master Indenture dated December 19, 2012, between Trinity Rail Leasing 2012 LLC and Wilmington Trust Company, as Indenture Trustee (incorporated by reference to Exhibit 10.18 to our Annual Report on Form 10-K for the annual period ended December 31, 2018).

(10.14) Amended and Restated Term Loan Agreement dated as of November 8, 2018, among Trinity Rail Leasing 2017 LLC;

1 unchanged sentence

Bank National Association, as Collateral Agent, Custodian and Depositary (incorporated by reference to Exhibit 10.1 to our Form 8-K filed November 15, 2018).

(10.20) Executive Transition Agreement between Trinity Industries, Inc.

Perry effective January 1, 2019 (incorporated by reference to Exhibit 10.1 to our Form 8-K filed January 9, 2019).*

(10.21) Executive Transition Agreement between Trinity Industries, Inc.

and Timothy R.

Wallace effective December 17, 2019 (incorporated by reference to Exhibit 10.1 to our Form 8-K filed December 18, 2019).*

(10.15) Master Indenture dated June 20, 2018, between Trinity Rail Leasing 2018 LLC and Wilmington Trust Company, as indenture trustee (incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2018).

(10.22.1) Series 2020-1 Supplement dated October 19, 2020, between Trinity Rail Leasing 2018 LLC and Wilmington Trust Company, as indenture trustee (filed herewith).

(10.15.1) Series 2020-1 Supplement dated October 19, 2020, between Trinity Rail Leasing 2018 LLC and Wilmington Trust Company, as indenture trustee (incorporated by reference to Exhibit 10.22.1 to our Annual Report on Form 10-K for the annual period ended December 31, 2020).

(10.16) Tax Matters Agreement, dated as of October 31, 2018, by and between Trinity Industries, Inc.

6 unchanged sentences

(10.18) Master Indenture dated November 19, 2020, between Trinity Rail Leasing 2020 LLC and U.S.

Bank National Association, as indenture trustee (filed herewith).

Bank National Association, as indenture trustee (incorporated by reference to Exhibit 10.29 to our Annual Report on Form 10-K for the annual period ended December 31, 2020).

[Portions omitted]

(10.18.1) Series 2020-2 Supplement dated November 19, 2020, between Trinity Rail Leasing 2020 LLC and U.S.

Bank National Association, as indenture trustee (filed herewith).

(10.29.2) Equipment Note Purchase Agreement dated October 23, 2020, by and among Trinity Rail Leasing 2020 LLC, Credit Suisse Securities (USA) LLC, Credit Agricole Securities (USA) Inc., BofA Securities, Inc.

and Wells Fargo Securities LLC (filed herewith).

(10.29.3) Purchase and Contribution Agreement dated November 19, 2020, by and among Trinity Rail Leasing Warehouse Trust, Trinity Industries Leasing Company, TRIHC 2018 LLC, and Trinity Rail Leasing 2020 LLC (filed herewith).

Bank National Association, as indenture trustee (incorporated by reference to Exhibit 10.29.1 to our Annual Report on Form 10-K for the annual period ended December 31, 2020).

(10.19) Note Purchase Agreement dated May 4, 2021, by and among Trinity Rail Leasing 2012 LLC, Trinity Industries Leasing Company, RIV 2013 Rail Holdings LLC, TRP 2021 Railcar Holdings LLC, Credit Suisse Securities (USA) LLC, Wells Fargo Securities LLC, Credit Agricole Securities (USA) Inc., Deutsche Bank Securities Inc., BofA Securities, Inc., and Fifth Third Securities, Inc.

(incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.19.1) Master Indenture dated June 15, 2021, by and between TRP 2021 LLC and U.S.

Bank National Association, as Indenture Trustee (incorporated by reference to Exhibit 10.2.1 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.19.2) Series 2020-1 Supplement dated June 15, 2021, between TRP 2021 LLC and U.S.

Bank National Association, as Indenture Trustee (incorporated by reference to Exhibit 10.2.2 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.20) Note Purchase Agreement dated May 25, 2021, by and among TRIP Rail Master Funding LLC, Trinity Industries Leasing Company, TRIP Rail Holdings LLC, Triumph Rail Holdings LLC, Credit Suisse Securities (USA) LLC, Wells Fargo Securities LLC, Credit Agricole Securities (USA) Inc., Deutsche Bank Securities Inc., Morgan Stanley & Co.

LLC, BofA Securities, Inc., and Fifth Third Securities, Inc.

(incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.20.1) Master Indenture dated June 15, 2021, by and between Triumph Rail LLC and U.S.

Bank National Association, as Indenture Trustee (incorporated by reference to Exhibit 10.3.1 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.20.2) Series 2021-2 Supplement dated June 15, 2021, by and between Triumph Rail LLC and U.S.

Bank National Association, as Indenture Trustee (incorporated by reference to Exhibit 10.3.2 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.21) Term Loan Agreement dated May 18, 2021, among TRIP Railcar Co., LLC, Trinity Industries Leasing Company, TRIP Rail Holdings LLC, the Lenders, Credit Suisse AG, New York Branch, as agent for the Lenders, and U.S.

Bank National Association, as Collateral Agent and Depositary (incorporated by reference to Exhibit 10.4 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.21.1) Notice of Optional Reduction of Commitment, dated May 25, 2021 (incorporated by reference to Exhibit 10.4.1 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.21.2) Asset Contribution and Purchase Agreement dated May 18, 2021 between TRIP Railcar Co., LLC and TRIP Rail Holdings LLC (incorporated by reference to Exhibit 10.4.2 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.22) Note Purchase Agreement dated June 22, 2021, by and among Trinity Industries Leasing Company, Trinity Rail Leasing 2021 LLC, Wells Fargo Securities LLC, Credit Agricole Securities (USA) Inc., BofA Securities, Inc., Citizens Capital Markets, Inc., Credit Suisse Securities (USA) LLC, PNC Capital Markets LLC, and Regions Securities LLC (incorporated by reference to Exhibit 10.5 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.22.1) Master Indenture dated June 30, 2021, by and between Trinity Rail Leasing 2021 LLC and U.S.

Bank National Association, as Indenture Trustee (incorporated by reference to Exhibit 10.5.1 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.22.2) Series 2021-1 Supplement dated June 30, 2021, by and between Trinity Rail Leasing 2021 LLC and U.S.

Bank National Association, as Indenture Trustee (incorporated by reference to Exhibit 10.5.2 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.22.3) Purchase and Contribution Agreement dated June 30, 2021, by and among Trinity Rail Leasing Warehouse Trust, Trinity Industries Leasing Company, and Trinity Rail Leasing 2021 LLC (incorporated by reference to Exhibit 10.5.3 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.23) Stock Purchase Agreement dated April 29, 2021, by and among Trinity Industries, Inc.

and ValueAct Capital Master Fund, L.P.

(incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021).

(10.24) Stock Purchase Agreement dated December 31, 2021, by and among Trinity Industries, Inc.

and ValueAct Capital Master Fund, L.P.

(incorporated by reference to Exhibit 10.1 to our Form 8-K filed January 5, 2022).

(21) Listing of subsidiaries of Trinity Industries, Inc.

41 unchanged sentences

and Subsidiaries included in this Annual Report (Form 10-K) of Trinity Industries, Inc.

and Subsidiaries for the year ended December 31, 2020.

for the year ended December 31, 2021.

/s/ ERNST & YOUNG LLP

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February 17, 2022

Adams Principal Financial Officer:

/s/ William P.

Ainsworth Principal Financial Officer:

February 17, 2022

/s/ Brandon B.

Boze Executive Vice President and Chief Financial Officer

Anderson Executive Vice President and Chief Financial Officer

Anderson Dated:

February 17, 2022

9 unchanged sentences

February 17, 2022

/s/ Charles W.

February 17, 2022

February 24, 2021

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures