EXHIBIT 10.1
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JPMORGAN
CREDIT AGREEMENT
dated as of
June 4, 2002
among
TRINITY INDUSTRIES, INC.,
as Borrower,
The FINANCIAL INSTITUTIONS NOW OR HEREAFTER PARTIES HERETO,
as Lenders,
JPMORGAN CHASE BANK,
Individually and as Issuing Bank and as Administrative Agent,
and
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
and
THE ROYAL BANK OF SCOTLAND plc,
Individually and as Syndication Agents
Revolving Credit Facility
Term Loan Facility
X.X. XXXXXX SECURITIES INC.,
as Sole Lead Arranger and Bookrunner
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TABLE OF CONTENTS
Page No.
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.................................................................1
SECTION 1.02 Classification of Loans and Borrowings.......................................23
SECTION 1.03 Terms Generally..............................................................23
SECTION 1.04 Accounting Terms; GAAP.......................................................24
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments..................................................................24
SECTION 2.02 Loans and Borrowings.........................................................24
SECTION 2.03 Requests for Borrowings......................................................25
SECTION 2.04 Competitive Bid Procedure....................................................26
SECTION 2.05 Letters of Credit............................................................28
SECTION 2.06 Funding of Borrowings........................................................32
SECTION 2.07 Interest Elections...........................................................33
SECTION 2.08 Notes and Amortization.......................................................34
SECTION 2.09 Termination and Reduction of Commitments; Certain Prepayments................35
SECTION 2.10 Repayment of Loans; Evidence of Debt.........................................36
SECTION 2.11 Prepayment of Loans; Application of Prepayments..............................37
SECTION 2.12 Fees.........................................................................38
SECTION 2.13 Interest.....................................................................39
SECTION 2.14 Alternate Rate of Interest...................................................40
SECTION 2.15 Increased Costs..............................................................40
SECTION 2.16 Break Funding Payments.......................................................42
SECTION 2.17 Taxes........................................................................42
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs..................43
SECTION 2.19 Illegality...................................................................45
SECTION 2.20 Mitigation Obligations; Replacement of Lenders...............................46
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Organization; Powers.........................................................47
SECTION 3.02 Authorization; Enforceability................................................47
SECTION 3.03 Governmental Approvals; No Conflicts.........................................47
SECTION 3.04 Financial Condition; No Material Adverse Change..............................47
SECTION 3.05 Properties...................................................................48
SECTION 3.06 Litigation...................................................................48
SECTION 3.07 Compliance with Laws and Agreements..........................................48
SECTION 3.08 Investment and Holding Company Status........................................49
SECTION 3.09 Taxes........................................................................49
SECTION 3.10 ERISA........................................................................49
SECTION 3.11 Subsidiaries.................................................................49
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SECTION 3.12 Burdensome Obligations.......................................................49
SECTION 3.13 Employee Matters.............................................................49
SECTION 3.14 Disclosure...................................................................50
SECTION 3.15 Margin Stock.................................................................50
SECTION 3.16 Primary Business.............................................................50
SECTION 3.17 Environmental Matters........................................................50
SECTION 3.18 Perfection Certificate; Real Property........................................51
SECTION 3.19 Schedules to other Loan Documents............................................51
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date...............................................................51
SECTION 4.02 Each Credit Event............................................................54
SECTION 4.03 Post-Closing Conditions......................................................54
ARTICLE V
SECURITY
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01 Financial Statements and Other Information...................................57
SECTION 6.02 Notices of Material Events...................................................58
SECTION 6.03 Existence; Conduct of Business...............................................59
SECTION 6.04 Payment of Obligations.......................................................59
SECTION 6.05 Maintenance of Properties; Insurance.........................................59
SECTION 6.06 Books and Records; Inspection Rights.........................................60
SECTION 6.07 Compliance with Laws.........................................................60
SECTION 6.08 Use of Proceeds..............................................................60
SECTION 6.09 Maintenance of Debt Ratings..................................................60
SECTION 6.10 Compliance with Security Instruments.........................................60
SECTION 6.11 Further Assurances...........................................................60
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.01 Indebtedness.................................................................61
SECTION 7.02 Liens........................................................................62
SECTION 7.03 Fundamental Changes..........................................................63
SECTION 7.04 Investments, Loans, Advances, Guarantees and Acquisitions....................64
SECTION 7.05 Hedging Agreements...........................................................64
SECTION 7.06 Restricted Payments..........................................................64
SECTION 7.07 Transactions with Affiliates.................................................65
SECTION 7.08 Restrictive Agreements.......................................................65
SECTION 7.09 Financial Covenants..........................................................65
SECTION 7.10 Fiscal Year..................................................................67
SECTION 7.11 Capital Expenditures.........................................................67
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ARTICLE VIII
EVENTS OF DEFAULT
ARTICLE IX
AGENTS
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Notices......................................................................72
SECTION 10.02 Waivers; Amendments..........................................................72
SECTION 10.03 Expenses; Indemnity; Damage Waiver...........................................73
SECTION 10.04 Successors and Assigns.......................................................75
SECTION 10.05 Survival.....................................................................77
SECTION 10.06 Counterparts; Integration; Effectiveness.....................................78
SECTION 10.07 Severability.................................................................78
SECTION 10.08 Right of Setoff..............................................................78
SECTION 10.09 Governing Law; Jurisdiction; Consent to Service of Process...................78
SECTION 10.10 WAIVER OF JURY TRIAL.........................................................79
SECTION 10.11 Headings.....................................................................79
SECTION 10.12 Confidentiality..............................................................79
SECTION 10.13 Interest Rate Limitation.....................................................80
SECTION 10.14 Arranger; Syndication Agents.................................................81
SECTION 10.15 NO ORAL AGREEMENTS...........................................................82
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SCHEDULES:
Schedule 1.01 - Existing Letters of Credit
Schedule 2.01 - Commitments
Schedule 3.06 - Disclosed Matters
Schedule 3.11 - Subsidiaries
Schedule 3.13 - Employee Matters
Schedule 5 - Collateral
Schedule 7.01 - Existing Indebtedness
Schedule 7.02 - Existing Liens
Schedule 7.03 - Permitted Asset Sales
Schedule 7.04 - Existing Investments
Schedule 7.08 - Existing Restrictions
EXHIBITS:
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Subsidiary Guaranty
Exhibit C - Form of Borrowing Request
Exhibit D - Form of Interest Election Request
Exhibit E - Form of Compliance Certificate
Exhibit F - Form of Revolving Credit Note
Exhibit G - Form of Term Note
Exhibit H - Form of Security Agreement
Exhibit I - Form of Pledge Agreement
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LIST OF DEFINED TERMS
Page No.
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$.........................................................................7
ABR.......................................................................1
Adjusted LIBO Rate........................................................1
Administrative Agent......................................................1
Administrative Questionnaire..............................................1
Affiliate.................................................................1
Agents....................................................................1
Aggregate Commitments.....................................................1
Aggregate Credit Exposure.................................................1
Aggregate Revolving Commitment............................................2
Aggregate Revolving Credit Exposure.......................................2
Agreement.................................................................2
Alternate Base Rate.......................................................2
Applicable Percentage.....................................................2
Applicable Rate...........................................................2
Arranger..................................................................3
Assessment Rate...........................................................3
Asset Disposition.........................................................3
Assignment and Acceptance.................................................4
Authorized Officer........................................................4
Availability Period.......................................................4
Bailee's Letter...........................................................4
Base CD Rate..............................................................4
Board.....................................................................4
Borrower..................................................................1
Borrowing.................................................................4
Borrowing Request.........................................................4
Business Day..............................................................4
Capital Expenditures......................................................4
Capital Expenditures (Leasing Company)....................................5
Capital Expenditures (Non-Leasing Company)................................5
Capital Lease Obligations.................................................5
Change in Control.........................................................5
Change in Law.............................................................5
Class.....................................................................5
Code......................................................................5
Collateral................................................................5
Collateral Agent..........................................................6
Commitment................................................................6
Competitive Bid...........................................................6
Competitive Bid Rate......................................................6
Competitive Bid Request...................................................6
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Page No.
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Competitive Loan..........................................................6
Consolidated Net Worth....................................................6
Consolidated Subsidiaries.................................................6
Control...................................................................6
Credit Percentage.........................................................6
Debt Offering.............................................................6
Default...................................................................7
Disclosed Matters.........................................................7
dollars...................................................................7
EBITDA....................................................................7
Effective Date............................................................7
Environmental Laws........................................................7
Environmental Liability...................................................7
Equity....................................................................7
ERISA.....................................................................7
ERISA Affiliate...........................................................8
ERISA Event...............................................................8
Eurodollar................................................................8
Events of Default........................................................67
Excluded Taxes............................................................8
Existing Indebtedness.....................................................8
Existing LC Exposure......................................................9
Existing Letters of Credit................................................9
Federal Funds Effective Rate..............................................9
Fee Letter................................................................9
Financial Officer.........................................................9
Fiscal Quarter............................................................9
Fiscal Year...............................................................9
Fixed Rate................................................................9
Fixed Rate Loan...........................................................9
Foreign Lender............................................................9
GAAP.....................................................................10
Governmental Authority...................................................10
Governmental Rule........................................................10
Guarantee................................................................10
guarantor................................................................10
Hazardous Materials......................................................10
Hedging Agreement........................................................10
Highest Lawful Rate......................................................80
Indebtedness.............................................................10
Indemnified Taxes........................................................11
Indemnitee...............................................................74
Index Debt...............................................................11
Information..............................................................80
Information Memorandum...................................................11
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Page No.
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Intercreditor Agreement..................................................11
Interest Coverage Ratio..................................................11
Interest Election Request................................................12
Interest Expense.........................................................12
Interest Payment Date....................................................12
Interest Period..........................................................12
Issuing Bank.............................................................12
JPMorgan.................................................................13
Landlord Consent and Subordination Agreement.............................13
Landlord Waiver Agreement................................................13
LC Disbursement..........................................................13
LC Exposure..............................................................13
Lender Affiliate.........................................................13
Lender Indebtedness......................................................13
Lenders..................................................................13
Letter of Credit.........................................................13
Leverage Ratio...........................................................14
LIBO Rate................................................................14
Lien.....................................................................14
Loan.....................................................................14
Loan Documents...........................................................14
Loans....................................................................14
Margin...................................................................15
Material Adverse Effect..................................................15
Material Indebtedness....................................................15
Material Subsidiaries....................................................15
Material Subsidiary......................................................15
Xxxxx'x..................................................................16
Mortgage.................................................................15
Mortgaged Real Property..................................................15
Multiemployer Plan.......................................................16
Net Cash Proceeds........................................................16
New York City............................................................16
Notes....................................................................16
Other Taxes..............................................................16
Participant..............................................................77
PBGC.....................................................................16
Perfection Certificate...................................................16
Permitted Acquisition....................................................16
Permitted Encumbrances...................................................16
Permitted Investments....................................................17
Person...................................................................18
Plan.....................................................................18
Pledge Agreement.........................................................18
Post-Closing Date........................................................18
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Page No.
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Prime Rate...............................................................18
Property.................................................................18
Quarterly Date...........................................................18
Real Property............................................................18
Register.................................................................76
Related Parties..........................................................18
Required Lenders.........................................................19
Required Revolving Lenders...............................................19
Required Term Lenders....................................................19
Restricted Payment.......................................................19
Revolving Commitment.....................................................19
Revolving Commitment Termination Date....................................19
Revolving Credit Exposure................................................20
Revolving Credit Note....................................................20
Revolving Credit Percentage..............................................20
Revolving Lender.........................................................20
Revolving Loans..........................................................20
Rolling Period...........................................................20
S&P......................................................................20
Security Agreement.......................................................20
Security Instruments.....................................................20
Statutory Reserve Rate...................................................20
subsidiary...............................................................21
Subsidiary...............................................................21
Subsidiary Guaranties....................................................21
Syndication Agents.......................................................21
Taxes....................................................................21
Term Commitment..........................................................21
Term Lender..............................................................21
Term Loan Percentage.....................................................21
Term Loans...............................................................22
Term Maturity Date.......................................................22
Term Note................................................................22
Term Percentage..........................................................22
Three-Month Secondary CD Rate............................................22
TILC.....................................................................22
TILC Conduit Indebtedness................................................22
Total Debt...............................................................22
Transactions.............................................................22
Type.....................................................................23
UCC......................................................................23
Utilization Fee..........................................................39
Utilization Percentage...................................................23
Withdrawal Liability.....................................................23
viii
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") is made and entered into as of
June 4, 2002, among TRINITY INDUSTRIES, INC., a Delaware corporation
("Borrower"), JPMORGAN CHASE BANK, individually as a Lender and Issuing Bank and
as Administrative Agent, DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
and THE ROYAL BANK OF SCOTLAND plc, each individually as a Lender and
collectively as Syndication Agents, and each of the lenders that is a signatory
hereto or which hereafter becomes a party hereto as provided in Section 10.04
(individually, a "Lender" and collectively, "Lenders").
In consideration of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/32 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means each of the Administrative Agent, each Syndication Agent
and the Collateral Agent.
"Aggregate Commitments" means the sum of all of the Lenders'
Commitments.
"Aggregate Credit Exposure" means the sum of all of the Lenders' Credit
Exposures.
1
"Aggregate Revolving Commitment" means the sum of all Revolving
Lenders' Revolving Commitments.
"Aggregate Revolving Credit Exposure" means the sum of all of the
Revolving Lenders' Revolving Credit Exposures.
"Agreement" means this Credit Agreement, as it may be amended,
modified, restated or supplemented and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means (a) with respect to any Revolving Lender,
such Revolving Lender's Revolving Credit Percentage, and (b) with respect to any
Term Lender, such Term Lender's Term Loan Percentage, as applicable.
"Applicable Rate" means, for any day, with respect to any Eurodollar
Loan, or with respect to the facility fees payable hereunder, the applicable
rate per annum set forth below under the caption "Eurodollar Revolving Spread,"
"Facility Fee Rate (Revolver)" or "Eurodollar Term Spread," as the case may be,
based upon the ratings by S&P and Xxxxx'x, respectively, applicable on such date
to the Index Debt:
Eurodollar Facility Fee
Revolving Rate Eurodollar
Index Debt Ratings Spread (Revolver) Term Spread
------------------ ---------- ------------ -----------
Category 1
BBB+/Baa1 or higher 1.350% 0.150% 2.750%
Category 2
BBB/Baa2 1.425% 0.200% 2.750%
Category 3
BBB-/Baa3 1.500% 0.250% 3.000%
Category 4
BB+/Ba1 1.625% 0.375% 3.250%
Category 5
BB/Ba2 or lower 1.750% 0.500% 3.250%
For purposes of the foregoing, (i) if either S&P or Xxxxx'x shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 5; (ii)
if the ratings established or deemed to have been established by S&P and Xxxxx'x
for the Index Debt shall fall within different Categories, the Applicable Rate
shall be
2
based on the higher of the two ratings unless one of the two ratings is two or
more Categories lower than the other, in which case the Applicable Rate shall be
determined by reference to the Category next below that of the higher of the two
ratings; and (iii) if the ratings established or deemed to have been established
by S&P and Moody's for the Index Debt shall be changed (other than as a result
of a change in the rating system of S&P or Moody's), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of S&P or Moody's shall change, or if either such rating agency shall
cease to be in the business of rating corporate or subordinated debt obligations
(as applicable), the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Rate shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
"Arranger" means X.X. Xxxxxx Securities Inc., in its capacity as Sole
Lead Arranger and Bookrunner.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Asset Coverage Ratio" means, on any day, the ratio of (a) Asset Value
to (b) the sum of (i) Aggregate Credit Exposure plus (ii) Existing LC Exposure
as of the date of determination.
"Asset Disposition" means any sale, securitization, assignment, lease,
license, exchange, conversion or other disposition by the Borrower of any of its
assets, including pursuant to any casualty or condemnation proceeding affecting
such assets, but excluding (i) any of the foregoing expressly permitted by
Section 7.03 hereof, and (ii) the sale of inventory in the ordinary course of
business.
"Asset Value" means, as of the date of determination, the sum of the
book values of the following for the Borrower and its Subsidiaries calculated on
a consolidated basis and only with respect to that Property which either (i) has
been pledged as Collateral hereunder to secure the Lender Indebtedness, or (ii)
is otherwise unencumbered and free of all Liens (other than Permitted
Encumbrances described in clauses (a) through (f) and in clause (h) of the
definition thereof): (a) accounts receivable (net of applicable reserves), (b)
inventory (net of applicable reserves), and (c) property, plant and equipment
(net of accumulated depreciation and amortization).
3
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in
substantially the form of Exhibit A or any other form approved by the
Administrative Agent.
"Authorized Officer" means the Chairman, the President, the Chief
Financial Officer, any Senior Vice President, any Vice President or the
Treasurer of the Borrower or any Material Subsidiary, as applicable, or any
other officer of the Borrower or any Material Subsidiary specified to the
Administrative Agent in writing by any of the aforementioned officers of the
Borrower or any Material Subsidiary.
"Availability Period" means the period from and including the Effective
Date to but excluding the Revolving Commitment Termination Date.
"Bailee's Letter" means a letter in form and substance acceptable to
the Administrative Agent executed by any Person who is in possession of
inventory on behalf of the Borrower pursuant to which such Person acknowledges
the Administrative Agent's and/or Collateral Agent's Lien with respect thereto.
"Base CD Rate" means the sum of (a) the Three Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" shall have the meaning set forth in the initial paragraph
hereof.
"Borrowing" means (a) Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (b) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03, in substantially the form of Exhibit C or any
other form approved by the Administrative Agent.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City or Dallas, Texas are authorized
or required by law to remain closed; provided that, when used in connection with
a Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" means, as to any Person for any period, all
expenditures (whether paid in cash or accrued as a liability, including the
portion of Capital Lease Obligations originally incurred during such period that
are capitalized on the consolidated balance sheet of the Borrower) by such
Person and its Subsidiaries during such period that, in conformity with GAAP,
are included in "capital expenditures," "additions to property, plant or
equipment" or
4
comparable items on the consolidated financial statements of such Person, but
excluding expenditures for the restoration, repair or replacement of any fixed
or capital asset that was destroyed or damaged, in whole or in part, in an
amount equal to any insurance proceeds received in connection with such
destruction or damage.
"Capital Expenditures (Leasing Company)" means, for any period, Capital
Expenditures transferred, assigned or otherwise conveyed to TILC, but excluding
Capital Expenditures funded with proceeds of the TILC Conduit Indebtedness.
"Capital Expenditures (Non-Leasing Company)" means, for any period, all
Capital Expenditures other than Capital Expenditures (Leasing Company).
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) of shares
representing more than thirty percent (30)% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Borrower;
(b) the occupation of a majority of the seats (other than vacant seats) on the
board of directors of the Borrower by Persons who were neither (i) nominated by
the board of directors of the Borrower nor (ii) appointed by directors so
nominated; or (c) the acquisition of direct or indirect Control of the Borrower
by any Person or group.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive Loans or Term Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means the Properties of the Borrower and its Subsidiaries
described in and subject to the Liens, privileges, priorities and security
interests created and granted (or purported to have been created and granted) by
any Security Instrument.
5
"Collateral Agent" means JPMorgan Chase Bank, as collateral agent under
the terms of the Intercreditor Agreement, and its successors and assigns.
"Commitment" means, as to any Lender, such Lender's Revolving
Commitment or Term Commitment then in effect, as the case may be.
"Competitive Bid" means an offer by a Revolving Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Revolving Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Consolidated Net Worth" means, at any time and from time to time, the
consolidated shareholder's equity of the Borrower and its Subsidiaries,
determined in accordance with GAAP.
"Consolidated Subsidiaries" means, for any Person, any subsidiary or
other entity the accounts of which would be consolidated with those of such
Person in its consolidated financial statements.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Loans (other than any
Competitive Loans) and its LC Exposure at such time.
"Credit Percentage" means, for each Lender, the percentage obtained by
dividing (a) the sum of the Revolving Credit Exposure of such Lender plus the
outstanding principal balance of any Term Loans held by such Lender, by (b) the
sum of the Aggregate Revolving Credit Exposure plus the aggregate outstanding
principal balance of all Term Loans.
"Debt Offering" means the incurrence by the Borrower of Indebtedness
whether or not occurring in connection with the issuance or sale of notes,
bonds, debentures or other debt securities; provided that the incurrence of any
Indebtedness borrowed under this Agreement or expressly permitted by Section
7.01 hereof (other than Indebtedness described in Section 7.01(i), which
Indebtedness will constitute a Debt Offering hereunder) will not constitute a
Debt Offering for purposes of this Agreement.
6
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
America.
"EBITDA" means, as to any Person for any period, without duplication,
the amount equal to the following calculated for such Person and its
consolidated subsidiaries on a consolidated basis: net income determined in
accordance with GAAP, plus to the extent deducted from net income, the sum of
(a) Interest Expense, depreciation, amortization, income and franchise tax
expenses, plus (b) with respect to the Rolling Period ended December 31, 2001,
non-cash and cash charges in an aggregate amount not to exceed $123,000,000;
provided that non-recurring, non-cash gains or losses and/or extraordinary gains
or losses for any such period, including, but not limited to, gains or losses on
the disposition of assets (other than in connection with the sale of rail cars
from the lease fleet in the ordinary course of business) shall not be included
in EBITDA.
"Effective Date" means June 5, 2002, provided that the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
10.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity" means shares of capital stock or a partnership, profits,
capital or member interest, or options, warrants or any other right to
substitute for or otherwise acquire the capital stock or a partnership, profits,
capital or member interest, of the Borrower or any of its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
7
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event," as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar," when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
VIII.
"Excluded Taxes" means, with respect to any Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account
of any obligation of the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.20(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.17(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.17(a).
"Existing Indebtedness" means all Indebtedness of the Borrower and its
Subsidiaries on the Effective Date under and in connection with that certain
Credit Agreement
8
dated as of June 8, 2001, by and among the Borrower, JPMorgan Chase Bank, as
administrative agent and the lenders and other agents a party thereto, as
amended prior to the date hereof.
"Existing LC Exposure" means, at any time, without duplication, the sum
of (a) the aggregate undrawn amount of all outstanding Existing Letters of
Credit at such time plus (b) the aggregate amount of all payments made by any
issuer of an Existing Letter of Credit pursuant to such Existing Letter of
Credit that have not yet been reimbursed by or on behalf of the Borrower or its
Subsidiaries at such time.
"Existing Letters of Credit" means the letters of credit issued for the
account of Borrower or its Subsidiaries outstanding on the date hereof and
described on Schedule 1.01, including any extensions, renewals or replacements
of such letters of credit that do not increase the amount of credit or exposure
related thereto.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter, dated as of April 9, 2002,
by and among the Borrower, JPMorgan and the Arranger, as such letter may be
amended, supplemented, restated or otherwise modified from time to time.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fiscal Quarter" means the fiscal quarter of the Borrower, ending on
the last day of each March, June, September and December of each year.
"Fiscal Year" means the fiscal year of the Borrower, ending on December
31 of each year.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Revolving Lender making such Competitive Loan in its related Competitive
Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
9
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Governmental Rule" means any statute, law, regulation, ordinance,
rule, judgment, order, decree, permit, concession, grant, franchise, license,
agreement, directive, requirement of, or other governmental restriction or any
similar binding form of decision of or determination by, or any binding
interpretation or administration of any of the foregoing by, any Governmental
Authority, whether now or hereafter in effect.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Highest Lawful Rate" has the meaning set forth in Section 10.13.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations
10
of such Person under conditional sale or other title retention agreements
relating to property acquired by such Person, (e) all obligations of such Person
in respect of the deferred purchase price of property or services (excluding
current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances and
(k) liabilities of such Person in respect of any Hedging Agreement, provided
that, for purposes of this definition, such liabilities of such Person in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that such Person would be
required to pay if such Hedging Agreement were terminated at such time. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means, for any day, (a) with respect to S&P, the corporate
debt rating of the Borrower established by S&P and in effect for such day, and
(b) with respect to Moody's, either (i) the corporate debt rating of the
Borrower established by Moody's and in effect for such day, or (ii) if no
corporate debt rating of the Borrower has been established by Moody's and in
effect for any such day, the senior implied corporate debt rating of the
Borrower based upon the subordinated debt rating of the Borrower established by
Moody's and in effect for such day (i.e., a rating one level higher than the
subordinated debt rating of the Borrower established by Moody's and in effect
for such day).
"Information Memorandum" means the Confidential Information Memorandum
dated May 2002 relating to the Borrower and the Transactions.
"Intercreditor Agreement" means that certain Intercreditor Agreement to
be executed in accordance with Section 4.01(f) by the Borrower, certain of its
Subsidiaries a party thereto, the Collateral Agent, the Administrative Agent and
the Letter of Credit Banks (as defined therein), in the form approved by the
Required Lenders and as the same may be amended or otherwise modified from time
to time.
"Interest Coverage Ratio" means, on any day, the ratio of (a) EBITDA
(excluding any EBITDA for such Rolling Period derived from the assets pledged to
the TILC Conduit Indebtedness after the closing and funding thereof) for the
Rolling Period ending on the then most recent Quarterly Date less Capital
Expenditures (Non-Leasing Company) for such Rolling Period to (b) cash interest
payments made by the Borrower and its Subsidiaries on a consolidated basis
during such Rolling Period, excluding any such interest payments (as applicable)
made with respect to the TILC Conduit Indebtedness during such Rolling Period.
11
"Interest Election Request" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.07, in substantially the
form of Exhibit D or any other form approved by the Administrative Agent.
"Interest Expense" means, as to any Person for any period, without
duplication, total interest expenses, whether paid or accrued as liabilities
(including the interest component of Capital Lease Obligations), with respect to
all outstanding Indebtedness, including, without limitation, all commissions,
discounts, and other fees and charges owed with respect to any financing or
letters of credit and net costs under any Hedging Agreement to the extent that
such costs are included within interest expense under GAAP.
"Interest Payment Date" means (a) with respect to any ABR Loan, each
Quarterly Date, (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period, and (c) with respect to any Fixed Rate Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Fixed Rate Borrowing with an Interest Period of more than
90 days' duration (unless otherwise specified in the applicable Competitive Bid
Request), each day prior to the last day of such Interest Period that occurs at
intervals of 90 days' duration after the first day of such Interest Period, and
any other dates that are specified in the applicable Competitive Bid Request as
Interest Payment Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect, and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than seven days or
more than 180 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; provided, that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means JPMorgan, in its capacity as the issuer of Letters
of Credit hereunder, and its successors in such capacity as provided in Section
2.05(i). The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case
the term "Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
12
"JPMorgan" means JPMorgan Chase Bank, in its individual capacity or as
an Issuing Bank, as the case may be, and not as Administrative Agent or
Collateral Agent.
"Landlord Consent and Subordination Agreement" means an agreement
executed and delivered by each landlord of Real Property leased by the Borrower
or any Subsidiary and subject to a Mortgage pursuant to which such landlord (a)
consents to the execution and delivery of a Mortgage by the Borrower or such
Subsidiary in favor of the Administrative Agent and/or Collateral Agent with
respect to the leased Real Property, and (b) subordinates all of its Liens to
the Liens of the Administrative Agent and/or the Collateral Agent in the
Property of the Borrower or such Subsidiary located on the leased Real Property.
"Landlord Waiver Agreement" means an agreement executed and delivered
by each landlord of Real Property leased by the Borrower or any Subsidiary
pursuant to which such landlord subordinates or waives all of its Liens to the
Liens of the Administrative Agent in the Property of the Borrower or such
Subsidiary located on the leased Real Property.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, without duplication, the sum of (a)
the aggregate undrawn amount of all outstanding Letters of Credit at such time
plus (b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Revolving Lender at any time shall be its Revolving Credit Percentage of the
total LC Exposure at such time.
"Lender Affiliate" means (a) with respect to any Lender (i) an
Affiliate of such Lender, or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or an
Affiliate of such Lender and (b) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Lender Indebtedness" means any and all amounts owing or to be owing by
the Borrower or any Subsidiary to the Administrative Agent, the Issuing Bank or
the Lenders with respect to or in connection with the Loans, any Letter of
Credit, the Notes, any Hedging Agreement, this Agreement, or any other Loan
Document and, as to Hedging Agreements, any and all amounts owing or to be owing
by the Borrower or any Subsidiary thereunder to any Lender or any of its
Affiliates.
"Lenders" has the meaning set forth in the opening paragraph hereof,
but shall not include any Person that ceases to be a Lender hereto pursuant to
an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
13
"Leverage Ratio" means, on any day, the ratio of (a) Total Debt of the
Borrower and its Subsidiaries on a consolidated basis as of the date of
determination to (b) EBITDA for the Rolling Period ending on the most recent
Quarterly Date as of the date of determination, excluding EBITDA derived from
the assets pledged to the TILC Conduit Indebtedness calculated on a pro forma
basis.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate (rounded
upwards, if necessary, to the next 1/32 of 1%) at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" means any interest in Property securing an obligation owed to,
or claim by, a Person other than the owner of the Property, whether such
interest is based on contract, constitutional, common or statutory law, and
including, but not limited to, the lien or security interest arising from a
mortgage, encumbrance, pledge, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes. The term
"Lien" shall include reservations, exceptions, encroachments, easements, rights
of way, covenants, conditions, restrictions, liens and other statutory,
constitutional or common law rights of landlords, leases and other title
exceptions and encumbrances affecting Property. For purposes of this Agreement,
the Borrower and any Subsidiary shall be deemed to be the owner of any Property
which it has acquired or holds subject to a conditional sale agreement,
financing lease or other arrangement pursuant to which title to the Property has
been retained by or vested in some other Person for security purposes.
"Loan" means, a Revolving Loan, a Term Loan or a Competitive Loan, and
"Loans" means the Revolving Loans, Term Loans and Competitive Loans or one or
more of them as provided herein.
"Loan Documents" means this Agreement, the Notes, the Subsidiary
Guaranties, the Security Instruments, the Intercreditor Agreement, the Letters
of Credit, any Borrowing Request, any Interest Election Request, any Assignment
and Acceptance, the Fee Letter, and all other agreements (including Hedging
Agreements) relating to this Agreement, the Loans, the Lender Indebtedness or
the Collateral entered into from time to time between or among the Borrower (or
any or all of its Subsidiaries) and the Administrative Agent or any Lender (or,
with respect to the Hedging Agreements, any Affiliates of any Lender), and any
document delivered
14
by the Borrower or any of its Subsidiaries in connection with the foregoing, as
such documents, instruments or agreements may be amended, modified or
supplemented from time to time.
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Competitive Loan, as specified by the Revolving Lender making
such Competitive Loan in its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Borrower and its Material Subsidiaries taken as a whole, (b) the ability of the
Borrower or any Material Subsidiary to perform any of its obligations under this
Agreement or any of the other Loan Documents, (c) the validity or enforceability
of this Agreement or any of the other Loan Documents, (d) the rights of or
benefits available to the Lenders under this Agreement or any of the other Loan
Documents, or (e) the perfection or priority of any Liens securing the Lender
Indebtedness.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and its Subsidiaries in an aggregate
principal amount exceeding $10,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"Material Subsidiary" means any Subsidiary of the Borrower which is
organized under the laws of the United States of America, any State thereof, or
the District of Columbia (a) with assets (including, without limitation, assets
of any subsidiary of such Subsidiary) having a book value equal to or greater
than ten percent (10%) of the consolidated assets of the Borrower and its
Subsidiaries, (b) which accounts (together with any subsidiary of such
Subsidiary) for more than ten percent (10%) of the consolidated revenues of the
Borrower and its Subsidiaries, or (c) which accounts (together with any
subsidiary of such Subsidiary) for more than ten percent (10%) of EBITDA of the
Borrower and its Subsidiaries. As of March 31, 2002, "Material Subsidiaries"
means the Subsidiaries set forth (and designated as such) on Schedule 3.11.
"Mortgage" means any mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document (and any and all
amendments, supplements or modifications thereto) granting a Lien to the
Administrative Agent and/or the Collateral Agent on any Mortgaged Real Property
to secure the Lender Indebtedness and the other obligations described in the
Intercreditor Agreement. Each Mortgage shall be satisfactory in form and
substance to the Administrative Agent and the Collateral Agent.
"Mortgaged Real Property" means the Real Property of the Borrower and
its Subsidiaries listed on Schedule 5 hereto and all other Real Property which
may hereafter (and after the Post-Closing Date) be mortgaged to the
Administrative Agent and/or the Collateral Agent pursuant to a Mortgage.
15
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" means the remainder of (a) the gross proceeds
received by the Borrower from any Asset Disposition or Debt Offering, less (b)
underwriter discounts and commissions, investment banking fees, legal,
accounting and other professional fees and expenses, and other usual customary
transaction costs, in each case only to the extent paid or payable by the
Borrower in cash and related to such Asset Disposition or Debt Offering.
"New York City" means New York, New York.
"Notes" means the Revolving Credit Notes, the Term Notes and any other
promissory note of the Borrower payable to the order of a Revolving Lender and
issued hereunder pursuant to Section 2.04(g).
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means the Perfection Certificate to be
executed by an Authorized Officer of the Borrower in form and substance
satisfactory to the Administrative Agent and the Collateral Agent and to be
delivered to the Administrative Agent and/or the Collateral Agent pursuant to
Section 4.03(a).
"Permitted Acquisition" means any acquisition by the Borrower or its
Material Subsidiaries of the voting securities or other equity interests, or all
or substantially all of the assets, of any Person (or any division or product
line of such Person), but only so long as (a) no Default shall have occurred and
be continuing at the time of (or would result from) such acquisition, and (b)
the cash amount for such acquisitions does not exceed in the aggregate, during
any Fiscal Year of the Borrower, $50,000,000.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 6.04;
16
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) pledges and deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in
the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VIII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) Liens, if any, securing the Indebtedness described in Sections
7.01(a), (h) and (j); and
(h) matters specified in the Mortgagee's Policies of Title Insurance
issued in connection with Section 4.03(b)(xv);
provided that the term "Permitted Encumbrances" shall not (except as otherwise
permitted by clause (g) of this definition) include any Lien securing
Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
17
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above; and
(e) investments (in addition to those contemplated by clauses (a), (b),
(c), and (d) of this definition, but expressly excluding any repurchase of
the stock or other securities of the Borrower) measured at cost on a
cumulative basis from and after the date of this Agreement not exceeding,
at any time, $5,000,000.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means one or more pledge agreements to be executed
and delivered pursuant to Section 4.01(e), Article V, Section 6.01(f) and/or the
Intercreditor Agreement by the Borrower and certain of its Subsidiaries,
substantially in the form of Exhibit I (with applicable conforming changes), as
amended, supplemented, restated or otherwise modified from time to time.
"Post-Closing Date" means September 30, 2002.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed.
"Quarterly Date" means the last day of each March, June, September and
December in each year.
"Real Property" means any right, title or interest in and to real
property, including any fee interest, leasehold interest, easement or license,
and any other right to use or occupy real property, including any right arising
by contract.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
18
"Required Lenders" means, (a) at any time that no Term Loans are
outstanding, Required Revolving Lenders; (b) at any time that Term Loans are
outstanding but no Revolving Commitments are in effect and no Revolving Credit
Exposure is outstanding, Required Term Lenders; and (c) at all other times (i)
that the Revolving Commitments remain in effect, Revolving Lenders with
Revolving Commitments and Term Lenders holding Term Loans in an aggregate amount
equal to or in excess of fifty-one percent (51%) of the sum of the Aggregate
Revolving Commitment plus the aggregate principal amount of Term Loans then
outstanding, and (ii) after the Revolving Commitments have terminated, Lenders
having Credit Exposure in an aggregate amount equal to or in excess of fifty-one
percent (51%) of the sum of the Aggregate Credit Exposure.
"Required Revolving Lenders" means Lenders having fifty-one percent
(51%) or more of the Aggregate Revolving Commitment at such time, until
terminated, and thereafter Revolving Lenders having fifty-one percent (51%) or
more of the Aggregate Revolving Credit Exposure; provided that, for purposes of
declaring the Revolving Loans to be due and payable pursuant to Article VIII,
and for all purposes after the Revolving Loans become due and payable pursuant
to Article VIII or the Revolving Commitments expire or terminate, the
outstanding Competitive Loans of the Revolving Lenders shall be added to their
respective Revolving Credit Exposures and to the Aggregate Revolving Credit
Exposure in determining the Required Revolving Lenders.
"Required Term Lenders" means Term Lenders holding fifty-one percent
(51%) or more of the aggregate principal balance of the Term Loans then
outstanding.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower.
"Revolving Commitment" means, with respect to each Revolving Lender,
the commitment of such Revolving Lender to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Revolving Lender's Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.09, (b) reduced or increased from time to time
pursuant to assignments by or to such Revolving Lender pursuant to Section
10.04, and (c) terminated pursuant to Article VIII. The initial amount of each
Revolving Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Revolving Lender shall have
assumed its Revolving Commitment. The initial Aggregate Revolving Commitment is
$275,000,000.
"Revolving Commitment Termination Date" means the earliest of: (a) June
4, 2005; (b) the date on which all of the Revolving Commitments are terminated
in full or reduced to zero pursuant to Section 2.09; and (c) the date on which
the Revolving Commitments
19
otherwise are terminated in full and reduced to zero pursuant to the terms of
Article VIII. Upon the occurrence of any event described in clause (b) or (c),
the Revolving Commitments shall terminate automatically and without any further
action.
"Revolving Credit Exposure" means, at any time and as to each Revolving
Lender, the sum of (a) the aggregate principal amount of Revolving Loans (other
than any Competitive Loans) made by such Revolving Lender outstanding at such
time plus (b) such Revolving Lender's Revolving Credit Percentage of the
aggregate amount of all LC Exposure at such time.
"Revolving Credit Note" means a promissory note of the Borrower
described in Section 2.08(a) payable to the order of any Revolving Lender and
being substantially in the form of Exhibit F, evidencing the aggregate
Indebtedness of the Borrower to such Revolving Lender resulting from Revolving
Loans made by such Revolving Lender, as any such promissory note may be amended,
endorsed, or otherwise modified from time to time, and also means all other
promissory notes accepted from time to time in substitution thereof or renewal
thereof.
"Revolving Credit Percentage" means, as to any Revolving Lender, the
percentage of the Aggregate Revolving Commitment constituted by its Revolving
Commitment (or, if the Revolving Commitments have terminated or expired, the
percentage which such Revolving Lender's Revolving Credit Exposure at such time
constitutes of the Aggregate Revolving Credit Exposure at such time).
"Revolving Lender" means a Lender with a Revolving Commitment.
"Revolving Loans" means the loans provided for in Section 2.01(a).
"Rolling Period" means any period of four consecutive Fiscal Quarters.
"S&P" means Standard & Poor's.
"Security Agreement" means one or more security agreements to be
executed and delivered pursuant to Section 4.01(d), Section 4.03(b), Article V
and/or the Intercreditor Agreement by the Borrower and certain of its
Subsidiaries, substantially in the form of Exhibit H (with modifications to
reflect the proper Collateral), as amended, supplemented, restated or otherwise
modified from time to time.
"Security Instruments" means all Security Agreements, Pledge
Agreements, Mortgages, financing statements and other agreements, documents or
instruments now or hereafter executed and delivered by the Borrower, any of its
Subsidiaries or any other Person as security for the payment and performance of
the Lender Indebtedness, as any of the foregoing may be amended, modified,
restated or supplemented from time to time.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the
20
Administrative Agent is subject (a) with respect to the Base CD Rate,
for new negotiable nonpersonal time deposits in dollars of over $100,000 with
maturities approximately equal to three months, and (b) with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to Regulation D of the Board.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under Regulation D of the Board or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guaranties" means the guaranties of the Lender
Indebtedness, executed and delivered pursuant to Section 4.01(c) and/or Section
6.01(f), substantially in the form of Exhibit B, given by each of the Material
Subsidiaries, as amended, supplemented, restated or otherwise modified from time
to time.
"Syndication Agents" means Dresdner Bank AG, New York and Grand Cayman
Branches and The Royal Bank of Scotland plc, in their capacities as syndication
agents for the Lenders hereunder.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Commitment" means, as to any Term Lender, such Term Lender's
obligation to make Term Loans pursuant to Section 2.01(b) of this Agreement. The
amount of each Term Lender's Term Commitment is set forth on Schedule 2.01. The
aggregate amount of the Term Lenders' Term Commitments is $150,000,000.
"Term Lender" means a Lender which holds Term Loans in its capacity as
such.
"Term Loan Percentage" means, as to any Term Lender, the percentage
which the outstanding principal balance of the Term Loans held by such Term
Lender at such time constitutes of the outstanding principal balance of Term
Loans at such time.
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"Term Loans" means the loans provided for in Section 2.01(b).
"Term Maturity Date" means the earlier of (a) June 4, 2007, and (b) the
date on which the Term Loans otherwise become due and payable pursuant to the
terms of Article VIII.
"Term Note" means a promissory note of the Borrower described in
Section 2.08(b) payable to the order of any Term Lender and being substantially
in the form of Exhibit G, evidencing the Term Loans held by such Term Lender, as
any such promissory note may be amended, endorsed, or otherwise modified from
time to time, and also means all other promissory notes accepted from time to
time in substitution thereof or renewal thereof.
"Term Percentage" means, as to any Term Lender, the percentage which
the outstanding principal balance of the Term Loans held by such Term Lender at
such time constitutes of the aggregate outstanding principal balance of all Term
Loans at such time.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"TILC" means Trinity Industries Leasing Company, a Delaware
corporation, and a wholly-owned Subsidiary of the Borrower.
"TILC Conduit Indebtedness" means the Indebtedness created or incurred
after the date hereof (including Indebtedness pursuant to the warehouse facility
established by Credit Suisse First Boston, New York Branch and Wachovia Bank,
N.A. and any term out of such facility) in favor of a wholly-owned special
purpose subsidiary of TILC in an aggregate amount not to exceed $500,000,000,
such Indebtedness to be (i) used to finance a portion of the lease fleet owned
(or to be owned) by such subsidiary, (ii) secured by such applicable railcars
and associated underlying third party leases, and (iii) non-recourse to the
Borrower.
"Total Debt" means, for any period, all Indebtedness (other than the
TILC Conduit Indebtedness) of the Borrower and its Subsidiaries on a
consolidated basis, excluding, without duplication, the sum of (a) LC Exposure
for such period, plus (b) Existing LC Exposure for such period.
"Transactions" means the execution, delivery and performance by the
Borrower and its Material Subsidiaries of this Agreement and the other Loan
Documents, the borrowing of the Loans, the use of the proceeds thereof and the
issuance of Letters of Credit hereunder.
22
"Type," when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of Texas or, where specifically applicable to the Borrower, any
Subsidiary or Collateral, any other relevant state.
"Utilization Fee" has the meaning set forth in Section 2.12(c).
"Utilization Percentage" means (i) for any day during the period from
the date hereof until the Revolving Commitment Termination Date, a percentage
equal to the Aggregate Revolving Credit Exposure on such day divided by the
Aggregate Revolving Commitment on such day, and (ii) for any day thereafter,
100%.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein," "hereof" and "hereunder," and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
23
SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments.
(a) Revolving Commitment. Subject to the terms and conditions set
forth herein, each Revolving Lender agrees to make Revolving Loans to the
Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such Revolving Lender's Revolving
Credit Exposure exceeding such Revolving Lender's Revolving Commitment or (ii)
the sum of the Aggregate Revolving Credit Exposure plus the aggregate principal
amount of outstanding Competitive Loans exceeding the Aggregate Revolving
Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
(b) Term Commitment. Subject to the terms and conditions set forth
herein, on the Effective Date, each Term Lender agrees to make one Term Loan to
the Borrower equal to such Term Lender's Term Commitment. No amounts paid or
prepaid with respect to the Term Loans may be reborrowed. Upon a Term Lender
making such Term Loan, its Term Commitment shall terminate and it shall have no
further Commitment to make Term Loans.
SECTION 2.02 Loans and Borrowings.
(a) Each Loan shall be made as part of a Borrowing consisting of
Loans made by the Lenders ratably in accordance with their respective
Commitments. Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.04. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments and Competitive Bids of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, (i) each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make
24
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $2,000,000 and not less than $10,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $2,000,000 and not less than $10,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Aggregate Revolving Commitment or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Subject
to Section 2.04(d), each Competitive Borrowing shall be in an aggregate amount
that is an integral multiple of $2,000,000 and not less than $10,000,000.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of five
Eurodollar Borrowings outstanding.
(d) The Borrower shall not be entitled to request any Borrowing after
the Revolving Commitment Termination Date, or to elect to convert or continue
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Commitment Termination Date or Term Maturity Date (as
applicable).
SECTION 2.03 Requests for Borrowings. To request a Borrowing, the Borrower
shall notify the Administrative Agent of such request by telephone (a) in the
case of a Eurodollar Borrowing, not later than 11:00 a.m., Dallas, Texas time,
three Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 10:00 a.m., Dallas, Texas time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request executed by an Authorized
Officer of the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar
25
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section 2.03, the Administrative Agent shall advise each
Revolving Lender of the details thereof and of the amount of such Revolving
Lender's Revolving Loan to be made as part of the requested Borrowing.
SECTION 2.04 Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein, from time
to time during the Availability Period the Borrower may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans; provided that (1) the aggregate principal amount of
outstanding Competitive Loans at any time shall not exceed $50,000,000, and (2)
the sum of the Aggregate Revolving Credit Exposures plus the aggregate principal
amount of outstanding Competitive Loans at any time shall not exceed the
Aggregate Revolving Commitment. To request Competitive Bids, the Borrower shall
notify the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., Dallas, Texas time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., Dallas, Texas time, one
Business Day before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) two (2) Competitive Bid Requests
on the same day, but a Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and executed by an Authorized Officer of
the Borrower. Each such telephonic and written Competitive Bid Request shall
specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section 2.04, the Administrative Agent shall notify the Revolving Lenders of the
details thereof by telecopy, inviting the Revolving Lenders to submit
Competitive Bids.
26
(b) Each Revolving Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Revolving Lender must be in a form
approved by the Administrative Agent and must be received by the Administrative
Agent by telecopy, in the case of a Eurodollar Competitive Borrowing, not later
than 9:30 a.m., Dallas, Texas time, three Business Days before the proposed date
of such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not
later than 9:30 a.m., Dallas, Texas time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform substantially to the
form approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Revolving Lender
as promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $10,000,000 and an integral multiple of
$2,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Competitive
Loans that the Revolving Lender is willing to make, (ii) the Competitive Bid
Rate or Competitive Bid Rates at which the Revolving Lender is prepared to make
such Competitive Loan or Competitive Loans (expressed as a percentage rate per
annum in the form of a decimal to no more than four decimal places) and (iii)
the Interest Period applicable to each such Competitive Loan and the last day
thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Revolving Lender that shall have made
such Competitive Bid.
(d) Subject only to the provisions of this Section 2.04(d), the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., Dallas, Texas time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., Dallas, Texas time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $10,000,000 and an integral multiple of $2,000,000; provided further that if
a Competitive Loan must be in an amount less than $10,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$2,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv), the amounts shall
27
be rounded to integral multiples of $2,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this Section 2.04(d) shall
be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Revolving Lender by telecopy whether or not its Competitive Bid has been
accepted (and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Revolving Lender, it shall submit such Competitive Bid
directly to the Borrower at least one quarter of an hour earlier than the time
by which the other Revolving Lenders are required to submit their Competitive
Bids to the Administrative Agent pursuant to paragraph (b) of this Section 2.04.
(g) Any Revolving Lender which makes a Competitive Loan hereunder may
request that such Competitive Loan be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Revolving Lender
a promissory note payable to the order of such Revolving Lender and in a form
approved by the Administrative Agent.
SECTION 2.05 Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein,
the Borrower may request the issuance of Letters of Credit for its own account,
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time during the Availability Period. In the
event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or
other agreement submitted by the Borrower to, or entered into by the Borrower
with, the Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section
2.05), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank,
the Borrower also shall submit a letter of credit application on the Issuing
Bank's standard form in connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be
28
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed
$100,000,000, (ii) the sum of the Aggregate Revolving Credit Exposure plus the
aggregate principal amount of outstanding Competitive Loans shall not exceed the
Aggregate Revolving Commitment and (iii) no Default shall have occurred and be
continuing.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Commitment Termination Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Revolving Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Revolving Lender's Revolving Credit Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and
in furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Revolving Lender's Revolving Credit Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section 2.05, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this Section 2.05(d) in respect of Letters of Credit
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, Dallas, Texas time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., Dallas, Texas time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, Dallas, Texas time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., Dallas, Texas time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
the Borrower may, subject to the conditions to Borrowing set forth herein,
request in accordance with Section 2.03 that such payment be financed with an
ABR Borrowing in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Borrowing. If the Borrower fails to make such payment when
due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and
29
such Revolving Lender's Revolving Credit Percentage thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Revolving Credit Percentage of the unreimbursed LC Disbursement, in
the same manner as provided in Section 2.06 with respect to Revolving Loans made
by such Revolving Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Issuing Bank the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this Section 2.05(e), the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this Section 2.05(e) to
reimburse the Issuing Bank, then to such Revolving Lenders and the Issuing Bank
as their interests may appear. Any payment made by a Revolving Lender pursuant
to this Section 2.05(e) to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Loans as contemplated above) shall not constitute
a Revolving Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section 2.05 shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section 2.05(f), constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's obligations
hereunder. Neither the Agents, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole
30
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section 2.05, then Section 2.13(d) shall apply. Interest
accrued pursuant to this Section 2.05(h) shall be for the account of the Issuing
Bank, except that interest accrued on and after the date of payment by any
Revolving Lender pursuant to paragraph (e) of this Section 2.05 to reimburse the
Issuing Bank shall be for the account of such Revolving Lender to the extent of
such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Revolving Lenders of any such replacement of the Issuing
Bank. At the time any such replacement shall become effective, the Borrower
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.12(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If (i) any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Revolving Lenders (or, if the maturity
of the Revolving Loans has been accelerated, Revolving Lenders with LC Exposure
representing not less than fifty-one percent (51%) of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this Section 2.05(j),
and/or otherwise (ii) on the Revolving Commitment Termination Date, the
31
Borrower shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Revolving Lenders, an
amount in cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in
clause (h) or (i) of Article VIII. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement, and the Borrower will, in
connection therewith, execute and deliver such security and pledge agreements in
form and substance satisfactory to the Administrative Agent which the
Administrative Agent may, in its discretion, require. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the
Revolving Loans has been accelerated (but subject to the consent of Revolving
Lenders with LC Exposure representing not less than fifty-one percent (51%) of
the total LC Exposure), be applied to satisfy other obligations of the Borrower
under this Agreement, and the Borrower will, in connection therewith, execute
and deliver such security and pledge agreements in form and substance
satisfactory to the Administrative Agent which the Administrative Agent may, in
its discretion, require. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
SECTION 2.06 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, Dallas, Texas time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in Dallas, Texas and designated by the
Borrower; provided that ABR Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Revolving Lender prior to the proposed date of any Borrowing that such Revolving
Lender will not make available to the Administrative Agent such Revolving
Lender's share of such Borrowing, the Administrative Agent may assume that such
Revolving Lender has made such share available on such date in accordance with
paragraph (a) of this Section 2.06 and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such
32
event, if a Revolving Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Revolving
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Revolving Lender, the greater of (A) the Federal Funds Effective
Rate and (B) a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Revolving Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Revolving Lender's Revolving Loan included in such Borrowing.
SECTION 2.07 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request (or an ABR Borrowing if no Type is specified) and,
in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section 2.07. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section 2.07 shall not apply to
Competitive Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section 2.07, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request
executed by an Authorized Officer of the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
33
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each applicable Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.08 Notes and Amortization.
(a) Revolving Credit Notes. The Borrower's obligation to pay the
principal of, and interest on, the Revolving Loans made by each Revolving Lender
shall be further evidenced by the Borrower's issuance, execution and delivery of
a Revolving Credit Note payable to the order of each such Revolving Lender in
the amount of such Revolving Lender's Revolving Credit Commitment, and shall be
dated as of the date of issuance of such Revolving Credit Note. The principal
amount of each Revolving Credit Note shall be payable on or before the Revolving
Commitment Termination Date.
(b) Term Notes and Amortization. The Borrower's obligation to pay the
principal of, and interest on, the Term Loans maintained outstanding by each
Term Lender shall be further evidenced by the Borrower's issuance, execution and
delivery of a Term Note payable to the order of each such Term Lender in the
principal amount of such Term Lender's Term Commitment, and shall be dated as of
the date of issuance of such Term Note. The aggregate principal amount of the
Term Notes applicable to the aggregate Term Loans of all the Term Lenders shall
be payable in quarterly installments of the amounts set forth below:
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Quarterly Date Amount
-------------- --------------------------
September 30, 2002 $ 375,000
December 31, 2002 $ 375,000
March 31, 2003 $ 375,000
June 30, 2003 $ 375,000
September 30, 2003 $ 375,000
December 31, 2003 $ 375,000
March 31, 2004 $ 375,000
June 30, 2004 $ 375,000
September 30, 2004 $ 375,000
December 31, 2004 $ 375,000
March 31, 2005 $ 375,000
June 30, 2005 $ 375,000
September 30, 2005 $ 375,000
December 31, 2005 $ 375,000
March 31, 2006 $ 375,000
June 30, 2006 $ 375,000
September 30, 2006 $36,000,000
December 31, 2006 $36,000,000
March 31, 2007 $36,000,000
Term Maturity Date Aggregate Unpaid Principal
Balance
The first such quarterly installment shall be payable on September 30, 2002, and
the remaining quarterly installments shall be payable on each Quarterly Date
thereafter, with the final installment in the amount of the aggregate unpaid
principal balance then owing being payable on or before the Term Maturity Date.
SECTION 2.09 Termination and Reduction of Commitments; Certain Prepayments.
(a) Unless previously terminated, the Revolving Commitment of each
Revolving Lender shall terminate on the Revolving Commitment Termination Date
applicable to such Revolving Lender's Revolving Commitment.
(b) The Term Commitment of each Term Lender shall terminate on the
Effective Date upon such Term Lender making its Term Loan.
(c) In the event the Borrower shall, prior to the Revolving
Commitment Termination Date, receive Net Cash Proceeds from any Asset
Disposition or any Debt Offering, an amount equal to seventy-five percent (75%)
of such Net Cash Proceeds shall be applied on such date to the prepayment of the
Term Loans and the reduction of the Revolving Commitments as set forth in
Section 2.11(e).
35
(d) The Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$2,000,000 and not less than $10,000,000, and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11(c),
the sum of the Aggregate Revolving Credit Exposure plus the aggregate principal
amount of outstanding Competitive Loans would exceed the Aggregate Revolving
Commitment.
(e) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under paragraph (d) of
this Section 2.09 at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Revolving Lenders of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section 2.09(e) shall be irrevocable;
provided that a notice of termination of the Revolving Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of the Revolving Commitments shall be permanent. Each reduction of the Revolving
Commitments shall be made ratably among the Revolving Lenders in accordance with
their respective Revolving Commitments.
SECTION 2.10 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Revolving Lender the then unpaid
principal amount of each Revolving Loan and Borrowing of such Revolving Lender
on the Revolving Commitment Termination Date, (ii) to the Administrative Agent
for the account of each Revolving Lender thereof, the then unpaid principal
amount of each Competitive Loan on the last day of the Interest Period
applicable to such Competitive Loan, (iii) to the Administrative Agent for the
account of each Term Lender, the then unpaid principal amount of each Term Loan
on the Term Maturity Date, and (iv) the amounts specified in Sections 2.08 and
2.11 on the dates specified in each such Section. The Borrower hereby further
agrees to pay interest on the unpaid principal amount of the Loans made to the
Borrower, from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates set forth in Section 2.13.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum
36
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section 2.10 shall be prima facie evidence of the existence
and amounts of the obligations recorded therein; provided that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
SECTION 2.11 Prepayment of Loans; Application of Prepayments.
(a) In the event the Borrower shall, after the Revolving Commitment
Termination Date, receive Net Cash Proceeds from any Asset Disposition or Debt
Offering, such Net Cash Proceeds shall be applied on such date toward the
prepayment of the Loans as set forth in Section 2.11(e).
(b) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part; provided that (i) each
prepayment pursuant to this Section 2.11(b) shall be in an amount that is an
integral multiple of $2,000,000 and not less than $10,000,000, (ii) each
prepayment pursuant to this Section 2.11(b) shall be subject to prior notice in
accordance with paragraph (d) of this Section 2.11, (iii) the Borrower shall pay
any and all costs and expenses due to the Lenders pursuant to Section 2.16 at
the time of such prepayment, and (iv) the Borrower shall not have the right to
prepay any Competitive Loan without the prior consent of the Revolving Lender
thereof.
(c) The Borrower shall, from time to time, upon demand of the
Administrative Agent, prepay the Revolving Loans in such amounts as shall be
necessary so that at all times the sum of the Aggregate Revolving Credit
Exposure plus the aggregate principal amount of outstanding Competitive Loans is
equal to or less than the Aggregate Revolving Commitment.
(d) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., Dallas, Texas
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., Dallas, Texas time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid (which amount shall be in a
minimum principal amount of $10,000,000 and in $2,000,000 increments in excess
thereof); provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.09(e), then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with Section 2.09(e). Promptly following
receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the Lenders of the contents thereof. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13.
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(e) Amounts to be applied in connection with prepayments and
Revolving Commitment reductions made pursuant to Section 2.09(c) and Section
2.11(a) shall be applied, first, to the prepayment of the Term Loans (applied
ratably to each of the scheduled principal installments due and owing pursuant
to Section 2.08(b) at the time of such prepayment), and second, to reduce
permanently the Revolving Commitments (as applicable), any such reduction to be
applied proportionately to the Revolving Commitment of each Revolving Lender.
Any such reduction of the Revolving Commitment shall be accompanied by a
prepayment of the Revolving Loans to the extent required by Section 2.11(c).
Subject to the terms hereof, each prepayment of Loans and reduction of the
Revolving Commitment shall be made ratably among the Lenders in accordance with
their Commitments. The application of any prepayment of the Loans shall be
applied first to ABR Loans and then to Eurodollar Loans next maturing.
SECTION 2.12 Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Revolving Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Revolving Commitment of such
Revolving Lender (whether used or unused) during the period from and including
the Effective Date to but excluding the Revolving Commitment Termination Date
applicable to such Revolving Lender's Revolving Commitment. Accrued facility
fees shall be payable in arrears on each Quarterly Date of each year and on the
Revolving Commitment Termination Date, commencing on the first such date to
occur after the Effective Date. All facility fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the average daily amount of
such Revolving Lender's LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Revolving
Lender's Revolving Commitment terminates and the date on which such Revolving
Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank upon
issuance of any Letter of Credit by such Issuing Bank a fronting fee equal to an
amount calculated at the rate of 0.125% per annum based on the stated amount and
term of such Letter of Credit, as well as the Issuing Bank's standard fees with
respect to the administration, issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder. Participation fees shall
be payable in arrears on the third Business Day following each Quarterly Date,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this Section 2.12(b) shall be payable
within 10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
38
(c) If the Utilization Percentage for any day is greater than 33%,
the Borrower shall pay to the Administrative Agent for the account of the
Revolving Lenders a utilization fee (the "Utilization Fee"), calculated at a
rate per annum equal to 0.125% (if the Utilization Percentage is greater than
33%, but less than or equal to 50%) or 0.250% (if the Utilization Percentage is
greater than 50%), multiplied by the daily Aggregate Revolving Credit Exposure
under this Agreement. If the Utilization Fee is owing, such fee shall be payable
by the Borrower in arrears on each Quarterly Date of each year and on the
Revolving Commitment Termination Date.
(d) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
in writing between the Borrower and the Administrative Agent (including, without
limitation, all fees due and payable pursuant to the terms of the Fee Letter).
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees, participation fees and Utilization Fees, to the Revolving
Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.13 Interest.
(a) Subject to Section 10.13, the Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate.
(b) Subject to Section 10.13, the Loans comprising each Eurodollar
Borrowing shall bear interest (i) in the case of a Eurodollar Loan, at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate, or (ii) in the case of a Eurodollar Competitive Loan, at the
LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus,
as applicable) the Margin applicable to such Loan.
(c) Subject to Section 10.13, each Fixed Rate Loan shall bear
interest at the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, but subject to Section 10.13, if
any principal of or interest on any Loan or any fee or other amount payable by
the Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section 2.13 or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section 2.13.
(e) Subject to Section 10.13, accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan; provided that
(i) interest accrued pursuant to paragraph (d) of this Section 2.13 shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Loan prior to the end
39
of the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion.
(f) Subject to Section 10.13, all interest hereunder shall be
computed on the basis of a year of 360 days, except that interest computed by
reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14 Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period;
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, the Lender that is required to
make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period; or
(c) the Administrative Agent determines that by reason of
circumstances affecting the interbank dollar market generally, deposits in U.S.
Dollars in the relevant interbank dollar market are not being offered for the
applicable Interest Period and in an amount equal to the amount of the
Eurodollar Loan requested by the Borrower;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
(ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing
shall be made as an ABR Borrowing and (iii) any request by the Borrower for a
Eurodollar Competitive Borrowing shall be ineffective; provided that (A) if the
circumstances giving rise to such notice do not affect all the Lenders, then
requests by the Borrower for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby and (B) if the circumstances giving rise
to such notice affect only one Type of Borrowings, then the other Type of
Borrowings shall be permitted.
SECTION 2.15 Increased Costs.
(a) If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans or Fixed Rate Loans made by such Lender or any Letter
of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Bank's policies and the
policies of such Lender's or the Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section 2.15 shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing Bank,
as the case may be, the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section 2.15 shall not constitute a waiver
of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section 2.15 for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased
41
costs or reductions is retroactive, then the 270-day period referred to above
shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section 2.15, a
Lender shall not be entitled to compensation pursuant to this Section 2.15 in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16 Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan or Fixed Rate Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.11(d) and is revoked in accordance therewith), (d) the failure to borrow any
Competitive Loan after accepting the Competitive Bid to make such Loan, or (e)
the assignment of any Eurodollar Loan or Fixed Rate Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.20, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17 Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.17) the Administrative Agent, each Lender or the Issuing
Bank (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
42
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.17) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf
of a Lender or the Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon, Dallas, Texas time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 1 Chase Xxxxxxxxx
Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, except payments to be made directly
to the Issuing Bank as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
43
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in dollars.
(b) Each Borrowing of Revolving Loans shall be made, each payment on
account of any facility fee, participation fee or Utilization Fee in respect of
the Revolving Commitments hereunder shall be allocated by the Administrative
Agent, and any reduction of the Revolving Commitments of the Revolving Lenders
shall be allocated by the Administrative Agent, pro rata according to the
relevant Revolving Credit Percentages of the Revolving Lenders. Each payment
(including each prepayment) on account of principal of and interest on any
Revolving Loans shall be allocated by the Administrative Agent pro rata
according to the respective outstanding principal amounts of such Revolving
Loans then held by the Revolving Lenders. Each payment (including each
prepayment) on account of principal of and interest on any Term Loans shall be
allocated by the Administrative Agent pro rata according to the respective
outstanding principal amounts of such Term Loans then held by the Term Lenders.
Further, if at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties. All proceeds (including proceeds from
the realization upon the Collateral) received after acceleration of the maturity
of the Loans, shall be applied first, to reimbursement of expenses and
indemnities provided for in this Agreement and the other Loan Documents, second,
to the other Lender Indebtedness until repaid in full pro rata to each Lender,
and third, to any other Person entitled to receive such proceeds in accordance
with applicable law.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of
its Loans and participations in LC Disbursements and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and participations in LC
Disbursements; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, unless the Lender from which such payment is
recovered is required to pay interest thereon, in which case each Lender
returning funds to such Lender shall pay its pro rata share of such interest,
and (ii) the provisions of this Section 2.18(c) shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this
44
Section 2.18(c) shall apply). The Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(d) or (e), 2.06(b), 2.18(d) or 10.03(e), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19 Illegality.
(a) Notwithstanding any other provision of this Agreement to the
contrary, if (i) by reason of the adoption of any applicable Governmental Rule
or any change (after the Effective Date) in any applicable Governmental Rule or
in the interpretation or administration thereof by any Governmental Authority or
compliance by any Lender with any request or directive (whether or not having
the force of law) of any central bank or other Governmental Authority or (ii)
circumstances affecting the London interbank dollar market or the position of a
Lender therein shall at any time make it unlawful or impracticable in the sole
discretion of a Lender exercised in good faith for such lender or its applicable
lending office to (A) honor its obligation to make Eurodollar Loans either
generally or for a particular Interest Period provided for hereunder, or (B)
maintain Eurodollar Loans either generally or for a particular Interest Period
provided for hereunder, then such Lender shall promptly notify the Borrower
thereof through the Administrative Agent and such Lender's obligation to make or
maintain Eurodollar Loans having an affected Interest Period hereunder shall be
suspended until such time as such Lender may again make and maintain Eurodollar
Loans having an affected Interest Period (in which case the provisions of
Section 2.19(b) hereof shall be applicable). Before giving such notice pursuant
to this Section 2.19(a), such Lender will designate a different available
lending office for the affected Eurodollar Loans of such Lender or take such
other action as the Borrower may request if such designation or action will
avoid the need to suspend such Lender's obligation to make Eurodollar Loans
hereunder and will not, in the sole opinion of such Lender exercised in good
45
faith, be disadvantageous to such Lender (provided, that such Lender shall have
no obligation to so designate a lending office for Eurodollar Loans located in
the United States of America).
(b) If the obligation of any Lender to make or maintain any
Eurodollar Loans shall be suspended pursuant to Section 2.19(a) hereof, all
Loans having an affected Interest Period which would otherwise be made by such
Lender as Eurodollar Loans shall be made instead as ABR Loans (and, if such
Lender so requests by notice to the Borrower with a copy to the Administrative
Agent, each Eurodollar Loan having an affected Interest Period of such Lender
then outstanding shall be automatically converted into an ABR Loan on the last
day of the Interest Period for such Eurodollar Loans unless earlier conversion
is required by applicable law) and, to the extent that Eurodollar Loans are so
made as (or converted into) ABR Loans, all payments of principal which would
otherwise be applied to such Eurodollar Loans shall be applied instead to such
ABR Loans.
SECTION 2.20 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.15, (ii)
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
(iii) any Lender defaults in its obligation to fund Loans hereunder, or (iv) any
Lender suspends its obligation to maintain or fund Eurodollar Loans under
Section 2.19, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all its interests, rights and obligations under
this Agreement (other than any outstanding Competitive Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans) and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.15 or payments required to be made pursuant to Section 2.17, such assignment
will result in a reduction in such compensation or payments. A
46
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Syndication Agents,
the Issuing Bank and the Lenders to enter into this Agreement and to make Loans
and issue Letters of Credit hereunder, the Borrower represents and warrants to
the Agents, the Issuing Bank and the Lenders that:
SECTION 3.01 Organization; Powers. Each of the Borrower and its
Consolidated Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02 Authorization; Enforceability. The Transactions are within the
Borrower's and each Material Subsidiary's corporate, partnership or limited
liability company powers (as applicable) and have been duly authorized by all
necessary corporate, partnership or limited liability company powers (as
applicable) and, if required, stockholder action. This Agreement and the other
Loan Documents have been duly executed and delivered by the Borrower and each
Material Subsidiary (to the extent a party thereto) and constitute the legal,
valid and binding obligations of the Borrower and each Material Subsidiary (as
applicable), enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Borrower or any of its Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries.
SECTION 3.04 Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders equity and
cash flows (i) as of and for the
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calendar year ended December 31, 2001, audited by Ernst & Young, LLP,
independent public accountants, and (ii) as of and for the Fiscal Quarter and
the portion of the calendar year ended March 31, 2002, certified by one of its
Financial Officers. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Borrower and its Consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii) above.
(b) Since December 31, 2001, and except for the Disclosed Matters,
there has been no Material Adverse Effect on the Borrower and its Subsidiaries,
taken as a whole.
SECTION 3.05 Properties.
(a) Each of the Borrower and its Consolidated Subsidiaries has good
title to, or valid leasehold interests in, all its Property material to its
business (including its Collateral), except for (i) Permitted Encumbrances and
(ii) minor defects in title that do not interfere with its ability to conduct
its business as currently conducted or to utilize such properties for their
intended purposes.
(b) Each of the Borrower and its Consolidated Subsidiaries owns, or
is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business (including its Collateral), and
the use thereof by the Borrower and its Consolidated Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.06 Litigation.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve this Agreement or the
Transactions.
(b) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07 Compliance with Laws and Agreements. Each of the Borrower and
its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. Neither (a) a Default nor (b)
any other default by the Borrower or any of its Subsidiaries under any agreement
that could result in a Material Adverse Effect, has occurred and is continuing.
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SECTION 3.08 Investment and Holding Company Status. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09 Taxes. Each of the Borrower and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books adequate reserves or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.10 ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (in each case determined based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) as of the date of the most recent financial statements reflecting such
amounts, does not exceed the fair market value of the assets of such Plan (as of
the date of determination of such benefit obligation amount) by an amount which,
if it constituted a direct liability of the Borrower, could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.11 Subsidiaries. Schedule 3.11 hereto accurately (a) reflects
(i) the jurisdiction of incorporation or organization of the Borrower and each
of its Subsidiaries, and (ii) each jurisdiction in which the Borrower and each
of its Subsidiaries is qualified to transact business as a foreign corporation,
foreign partnership or foreign limited liability company, and (b) specifies
those Subsidiaries that are Material Subsidiaries. The Borrower has no
Subsidiaries other than those listed on Schedule 3.11.
SECTION 3.12 Burdensome Obligations. Neither the Borrower nor any of its
Subsidiaries, nor any of their respective properties, is subject to any law or
any pending or threatened Change in Law or subject to any restriction under its
articles or certificate of incorporation, bylaws, regulations, partnership
agreement or comparable charter or other organizational documents or under any
agreement or instrument to which the Borrower or any of its Subsidiaries, or any
of their respective properties, may be subject or bound, which is so unusual or
burdensome as to be likely in the foreseeable future to result in a Material
Adverse Effect.
SECTION 3.13 Employee Matters. Except as set forth on Schedule 3.13,
neither the Borrower nor any of its Subsidiaries, nor any of their respective
employees, is subject to any collective bargaining agreement. There are no
strikes, slowdowns, work stoppages or controversies pending or, to the knowledge
of the Borrower, threatened against the Borrower or any of its Subsidiaries, or
their respective employees, which could reasonably be expected to have a
Material Adverse Effect.
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SECTION 3.14 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum, nor any of the
other reports, financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.15 Margin Stock. None of the proceeds of the Loans will be used
for the purpose of, and neither the Borrower nor any Subsidiary of the Borrower
is engaged in the business of, extending credit for the purpose of (a)
purchasing or carrying any "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System (12 C.F.R. Part 221) or (b)
reducing or retiring any indebtedness which was originally incurred to purchase
or carry any margin stock, in either case in violation of Regulation U. Neither
the Borrower nor any Subsidiary of the Borrower is engaged principally in the
business of extending credit for the purpose of purchasing or carrying any
margin stock. Neither the Borrower nor any Subsidiary of the Borrower nor any
Person acting on behalf of the Borrower or any Subsidiary of the Borrower has
taken or will take any action which would cause any of the Loan Documents,
including this Agreement and any Subsidiary Guaranty, to violate Regulation U or
any other regulation of the Board of Governors of the Federal Reserve System, or
to violate any similar provision of the Securities Exchange Act of 1934 or any
rule or regulation under any such provision thereof.
SECTION 3.16 Primary Business. The primary business of the Borrower and its
Subsidiaries taken as a whole is that of the manufacturing of transportation,
construction and industrial products, and the leasing of railroad tank cars,
covered xxxxxx cars, box cars and related equipment.
SECTION 3.17 Environmental Matters.
(a) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(b) Except for the Disclosed Matters, all Hazardous Materials or
solid waste generated at any and all Property of the Borrower or any Subsidiary
have in the past been transported, treated and disposed of only by carriers
maintaining valid
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permits under any Environmental Law, and only at treatment, storage and disposal
facilities maintaining valid permits under any Environmental Law, which carriers
and facilities have been and are operating in compliance with such permits.
(c) The Borrower and each Subsidiary have taken all reasonable steps
necessary to determine and have determined that no Hazardous Materials or solid
waste has been disposed of or otherwise released and there has been no
threatened release of any Hazardous Materials on or to any Property of the
Borrower or any Subsidiary except in compliance with Environmental Laws, and
except for releases that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.18 Perfection Certificate; Real Property. Schedule 5 hereto
accurately reflects, as of the date hereof and as of the Post-Closing Date, the
location and value of certain of the Borrower's and its Subsidiaries' Property
which shall comprise a portion of the Collateral. The Perfection Certificate,
when delivered in accordance with Section 4.03(a), accurately reflects as of the
date thereof and as of the Post-Closing Date, in respect of each parcel of Real
Property described thereon, the name of the Person which is the owner and holder
of record title thereto, the nature of the interest of the Borrower or such
Subsidiary (as applicable) therein (e.g. fee, leasehold or other), and, in the
case of any leasehold interest described therein, the name of the landlord under
such lease and a description of such lease, including all amendments thereto.
All other information in the Perfection Certificate is true, correct and
complete in all material respects.
SECTION 3.19 Schedules to other Loan Documents. All information set forth
in all disclosure schedules to the other Loan Documents is true, correct and
complete in all material respects.
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date. This Agreement and the obligations of the
Lenders to make Loans and of the Issuing Bank to issue, amend, renew or extend
any Letter of Credit shall not become effective until the date on which each of
the following conditions is satisfied (or waived in accordance with Section
10.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received
from the Borrower (i) a Revolving Credit Note payable to the order of each
Revolving Lender, each in the amount of such Revolving Lender's Revolving
Commitment, signed on behalf of the Borrower, and (ii) a Term Note payable to
the order of each Term Lender, each in the amount of such Term Lender's Term
Commitment, signed on behalf of the Borrower.
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(c) The Administrative Agent (or its counsel) shall have received
from each Material Subsidiary either (i) a Subsidiary Guaranty signed on behalf
of such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of such
Subsidiary Guaranty) that such party has signed such Subsidiary Guaranty.
(d) The Administrative Agent (or its counsel) shall have received
from the Borrower and certain of its Subsidiaries a Security Agreement signed on
behalf of the Borrower and such Subsidiaries.
(e) The Administrative Agent (or its counsel) shall have received
from each of the Borrower and Trinity Rail Group, LLC, a Pledge Agreement signed
on behalf of the Borrower and Trinity Rail Group, LLC, respectively.
(f) The Administrative Agent (or its counsel) shall have received the
Intercreditor Agreement executed by the Borrower, certain of its Subsidiaries a
party thereto and all other parties thereto.
(g) The Administrative Agent shall have received such UCC, tax and
judgment lien search reports listing all documentation on file against the
Borrower, each Subsidiary and such other Persons as the Administrative Agent may
require in each jurisdiction in which Borrower, such Subsidiaries and such other
Persons has a principal place of business and/or jurisdiction of organization
and in which any Collateral is or has been located.
(h) The Administrative Agent shall have received such executed
documentation and other Property as the Administrative Agent may require or deem
necessary to perfect or protect the Administrative Agent's Lien in the Property
of the Borrower and its Subsidiaries granted pursuant to the Security Agreement,
the Pledge Agreements and the other Security Instruments, including, without
limitation, (i) stock certificates and other applicable certificates
representing all of the outstanding Equity in each Material Subsidiary, duly
endorsed for transfer to the Administrative Agent or such other duly executed
assignments of such Equity as are acceptable to the Administrative Agent (or its
counsel), (ii) all Collateral the possession of which is necessary to perfect
the Lien therein, (iii) financing statements under the UCC, (iv) all other
applicable documentation under the laws of any jurisdiction required with
respect to the creation, perfection and protection of Liens, and (v) all third
party or governmental approvals and consents required for the pledge of the
Collateral under the Security Agreement, the Pledge Agreements and the other
Security Instruments.
(i) The Administrative Agent shall have received such duly executed
UCC-3 termination statements and such other documentation as shall be necessary
to terminate or release all Liens encumbering the Collateral not otherwise
permitted by this Agreement.
(j) The Administrative Agent shall have received evidence that the
insurance required by Section 6.05 is in effect.
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(k) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated as of
the date hereof) of Xxxxxx & Xxxxx, LLP, counsel for the Borrower and the
Subsidiaries a party to any Loan Document, in form and substance satisfactory to
the Administrative Agent, and covering such matters relating to the Borrower,
such Subsidiaries, this Agreement, the other Loan Documents and/or the
Transactions as the Required Lenders shall reasonably request.
(l) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower and
its Subsidiaries, the authorization of the Transactions and any other legal
matters relating to the Borrower, its Subsidiaries, this Agreement, the other
Loan Documents and/or the Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
(m) The Administrative Agent shall have received a certificate, dated
as of the date hereof and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.
(n) The Administrative Agent, the Arranger and the Lenders shall have
received all fees and other amounts due and payable pursuant to the Fee Letter,
this Agreement or any other Loan Document on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder or under
any other Loan Document.
(o) All Existing Indebtedness of the Borrower shall have been paid in
full.
(p) The Administrative Agent shall have received Bailee's Letters duly
executed and delivered by any Person who is in possession of inventory on behalf
of the Borrower.
(q) The representations and warranties of each Person set forth in the
Loan Documents shall be true and correct on and as of the date hereof.
(r) The Administrative Agent and its counsel shall have received all
information, approvals, documents or instruments as the Administrative Agent or
its counsel may reasonably request.
All documents executed or submitted pursuant to this Section 4.01 by and on
behalf of the Borrower or any of its Subsidiaries shall be in form and substance
reasonably satisfactory to the Administrative Agent and its counsel. The
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 10.02) at or
prior to 2:00 p.m., Dallas, Texas time, on June 4, 2002 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
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SECTION 4.02 Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the further satisfaction of
the following conditions:
(a) The representations and warranties of each Person set forth in the
Loan Documents shall be true and correct on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
(c) The funding of such Borrowing or the issuance, amendment, renewal
or extension of any Letter of Credit and all other Borrowings to be made and/or
Letter(s) of Credit to be issued, amended, renewed or extended (as applicable)
on the same day under this Agreement, shall not cause the Revolving Credit
Exposure of the Revolving Lenders to be greater than the Aggregate Revolving
Commitment.
(d) Following the issuance of any Letter(s) of Credit, the aggregate LC
Exposure of all the Revolving Lenders shall not exceed $100,000,000.
(e) The Administrative Agent shall have received a Borrowing Request
for any Borrowing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a), (b),
(c) and (d) of this Section 4.02.
SECTION 4.03 Post-Closing Conditions. The Borrower shall deliver, or cause
to be delivered, to the Administrative Agent and/or the Collateral Agent, each
document, instrument or agreement, and take each action, or cause to be taken
each action, set forth in this Section 4.03, in each case on or prior to the
date specified in this Section 4.03:
(a) on or before June 30, 2002, the Borrower shall deliver to the
Administrative Agent and/or the Collateral Agent the Perfection Certificate,
fully completed and executed by an Authorized Officer of the Borrower;
(b) on or before the Post-Closing Date, the Borrower shall deliver, or
cause to be delivered to the Administrative Agent and/or the Collateral Agent,
each of the following, all in form and substance acceptable to the
Administrative Agent and the Required Lenders in their sole discretion:
(i) a Security Agreement duly executed by the Borrower and certain of
its Subsidiaries granting to the Collateral Agent a first priority security
interest in all of the personal property of the Borrower and such
Subsidiaries described on, or otherwise located at the locations set forth
on, Schedule 5 as security for the Lender Indebtedness;
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(ii) Mortgages duly executed by the Borrower and certain of its
Subsidiaries granting to the Collateral Agent a first priority perfected
Lien in and to all Mortgaged Real Property owned by the Borrower and such
Subsidiaries as of the Post-Closing Date, subject to Permitted
Encumbrances;
(iii) completed UCC-1 financing statements necessary to perfect the
Liens and security interests created by the Security Agreements and the
Mortgages;
(iv) in addition to the UCC-1 financing statements required by clause
(iii) preceding, such other documents, instruments and agreements as the
Administrative Agent and/or the Collateral Agent may reasonably request to
fully evidence and perfect the Liens created by the Security Instruments;
(v) Landlord Consent and Subordination Agreements duly executed and
delivered by each landlord of Mortgaged Real Property, in form and
substance satisfactory to the Administrative Agent and/or the Collateral
Agent;
(vi) Landlord Waiver Agreements duly executed and delivered by each
landlord of Real Property leased by the Borrower or any Subsidiary (other
than Mortgaged Real Property), in form and substance satisfactory to the
Administrative Agent and/or the Collateral Agent;
(vii) all Property in which the Administrative Agent and/or Collateral
Agent shall, at such time, be entitled to have a Lien pursuant to this
Agreement or any other Loan Document shall have been physically delivered
to the possession of the Administrative Agent and/or the Collateral Agent
to the extent that such possession is necessary for the purpose of
perfecting the Administrative Agent's and/or Collateral Agent's Lien in
such Collateral;
(viii) the Administrative Agent shall have received such UCC, tax and
judgment lien search reports listing all documentation on file against the
Borrower, each Subsidiary and such other Persons as the Administrative
Agent may require in each jurisdiction in which Borrower, such Subsidiaries
and such other Persons has a principal place of business and/or
jurisdiction of organization and in which any Collateral is or has been
located;
(ix) the Administrative Agent shall have received such duly executed
UCC-3 termination statements and such other documentation as shall be
necessary to terminate or release all Liens encumbering the Collateral not
otherwise permitted by this Agreement;
(x) the Administrative Agent shall have received evidence that the
insurance required by Section 6.05 is in effect;
(xi) the Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated as
of the Post-Closing Date) of (A) Xxxxxx & Xxxxx, LLP, counsel for the
Borrower and the Subsidiaries a party to any Loan Document, and (B) counsel
for the Borrower and its Subsidiaries in each
55
jurisdiction where any Mortgaged Real Property or other Collateral is
located, in form and substance satisfactory to the Administrative Agent,
and covering such matters as the Administrative Agent or the Required
Lenders shall reasonably request;
(xii) the Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower and its Subsidiaries, the authorization of the Transactions and
any other legal matters relating to the Borrower, its Subsidiaries, this
Agreement, the other Loan Documents and/or the Transactions, all in form
and substance satisfactory to the Administrative Agent and its counsel;
(xiii) the Administrative Agent shall have received a certificate,
dated as of the Post-Closing Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance
with the conditions set forth in paragraphs (a) and (b) of Section 4.02;
(xiv) the Administrative Agent, the Arranger and the Lenders shall have
received all fees and other amounts due and payable pursuant to the Fee
Letter, this Agreement or any other Loan Document on or prior to the
Post-Closing Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by
the Borrower hereunder or under any other Loan Document;
(xv) the Administrative Agent shall have received a Commitment for a
Mortgagee's Policy of Title Insurance in form and substance satisfactory to
the Administrative Agent with respect to the Mortgaged Real Property,
together with evidence satisfactory to the Administrative Agent that
Mortgagee's Policies of Title Insurance will be issued pursuant to each
such commitment and all premiums therefore have been paid;
(xvi) the Administrative Agent shall have received surveys in form and
substance acceptable to the Administrative Agent with respect to all
Mortgaged Real Property; and
(xvii) the Administrative Agent and its counsel shall have received all
information, approvals, documents or instruments as the Administrative
Agent or its counsel may reasonably request.
All documents executed or submitted pursuant to this Section 4.03 by and on
behalf of the Borrower or any of its Subsidiaries shall be in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.
ARTICLE V
SECURITY
The Lender Indebtedness and the other obligations described in the
Intercreditor Agreement shall be secured by perfected, first priority Liens on
and encumbering (a) all accounts receivable and inventory of the Borrower and
certain of its Subsidiaries (including, without
56
limitation, its Material Subsidiaries) a party to the Security Agreements,
whether now owned or hereafter acquired and wherever located, (b) all Mortgaged
Real Property, (c) all other Property of the Borrower and its Subsidiaries
described on Schedule 5 hereto or otherwise described in the Security
Instruments, and (d) all of the issued and outstanding Equity owned by the
Borrower and its Subsidiaries of each existing and future Material Subsidiary.
In furtherance of the foregoing, the Borrower hereby agrees to execute and
deliver (and to cause any other appropriate Person to execute and deliver) to
the Administrative Agent and/or the Collateral Agent for the benefit of the
Lenders and the Creditors (as defined in the Intercreditor Agreement), promptly
upon request by the Administrative Agent and/or the Collateral Agent, but
subject to Article IV hereof, such Security Instruments and other documents,
instruments, agreements and certificates, as the Administrative Agent and/or
Collateral Agent shall deem necessary or appropriate in its or their sole
discretion to create, evidence and perfect the Liens contemplated by this
Article V. The Borrower hereby consents and authorizes the Administrative Agent
and the Collateral Agent, and their agents, successors and assigns to file any
and all necessary financing statements under the UCC, amendments, "in lieu"
filings or assignments or continuation statements as necessary from time to time
(in the Administrative Agent's and Collateral Agent's discretion) to perfect or
continue perfection of the Liens granted pursuant to the Loan Documents.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Administrative Agent, the Syndication Agents, the Issuing Bank and each
Lender that:
SECTION 6.01 Financial Statements and Other Information. The Borrower will
furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by Ernst & Young, LLP or other independent public accountants of
recognized national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all
57
material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause
(a) or (b) above, a certificate of a Financial Officer of the Borrower,
substantially in the form of Exhibit E, (i) certifying as to whether a Default
has occurred and, if a Default has occurred, specifying the details thereof and
any action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with Sections
7.09(a), (b) and (c) and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) concurrently with any delivery of financial statements under clause
(a) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be;
(f) promptly upon determination that any Subsidiary has become a
Material Subsidiary, (i) a Subsidiary Guaranty duly executed by such Material
Subsidiary, (ii) a Pledge Agreement duly executed by the Borrower (or any
applicable Subsidiary) granting the Administrative Agent and/or Collateral Agent
a perfected first priority Lien on and evidencing all of the issued and
outstanding Equity owned by the Borrower (or any applicable Subsidiary) of such
Material Subsidiary, together with such certificates, financing statements and
other Property as necessary to perfect the Administrative Agent's and/or
Collateral Agent's Lien in such Equity, and (iii) such resolutions, member or
partner consents, certificates, legal opinions and such other related documents
as the Administrative Agent may reasonably request, all in form and substance
satisfactory to the Administrative Agent; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement or
any other Loan Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 6.02 Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
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(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
a Material Adverse Effect;
(d) an announcement by Xxxxx'x or S&P of a change in the ratings
established or deemed to have been established for the Index Debt or any other
rating of the Borrower or any of its Subsidiaries;
(e) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened or other environmental
claims against the Borrower or any of its Subsidiaries or any of their
respective properties pursuant to any applicable Environmental Laws which could
reasonably be expected to have a Material Adverse Effect;
(f) the occurrence of any event or circumstance concerning or changing
any of the Collateral that could reasonably be expected to have a Material
Adverse Effect; or
(g) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.02 shall be accompanied by a
statement of a Financial Officer or other Authorized Officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 6.03 Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.03.
SECTION 6.04 Payment of Obligations. The Borrower will, and will cause each
of its Subsidiaries to, pay its obligations, including Tax liabilities, before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, and
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (b) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 6.05 Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain,
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with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by the Borrower and
its Subsidiaries.
SECTION 6.06 Books and Records; Inspection Rights. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent, the Collateral Agent or any Lender, upon reasonable
prior notice, to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and condition
with its officers and independent accountants, all at such reasonable times and
as often as reasonably requested.
SECTION 6.07 Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.08 Use of Proceeds. The proceeds of (a) the Revolving Loans will
be used only (i) to refinance existing indebtedness of the Borrower, and (ii)
for working capital and general corporate purposes of the Borrower and its
Subsidiaries in the ordinary course of business, and (b) the Term Loans shall be
used only (i) to refinance existing indebtedness of the Borrower, (ii) for
working capital and general corporate purposes of the Borrower and its
Subsidiaries in the ordinary course of business, and (iii) to pay fees and
expenses related to the closing and consummation of the Transactions. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.
SECTION 6.09 Maintenance of Debt Ratings. The Borrower shall use
commercially reasonable efforts to ensure that the Borrower's Index Debt is
rated by Xxxxx'x and S&P (as applicable).
SECTION 6.10 Compliance with Security Instruments. The Borrower will, and
will cause each of its Subsidiaries to, comply with its obligations under the
Security Instruments arising in connection with the formation or acquisition of
any Material Subsidiary within ten (10) Business Days after such Material
Subsidiary is formed or acquired.
SECTION 6.11 Further Assurances. The Borrower will, and will cause each of
its Subsidiaries to, cure promptly any defects in the creation and issuance of
the Notes, and the execution and delivery of the Loan Documents, including this
Agreement. The Borrower at its expense will, as promptly as practical, execute
and deliver to the Administrative Agent or the Issuing Bank upon request all
such other and further documents, agreements and instruments (or cause any of
its Subsidiaries (as applicable) to take such action) in compliance with or
performance of the covenants and agreements of the Borrower and its Subsidiaries
in the Loan Documents, including this Agreement, or to further evidence and more
fully describe the Collateral, or to correct any omissions in the Loan
Documents, or more fully to state the security obligations set out herein or in
any of the Loan Documents, or to perfect, protect or preserve any
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Liens created pursuant to any of the Loan Documents, or to make any recordings,
to file any notices, or obtain any consents, all as may be necessary or
appropriate in connection therewith.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, the Borrower covenants and agrees with the Administrative
Agent, the Syndication Agents, the Issuing Bank and each Lender that:
SECTION 7.01 Indebtedness. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in Schedule
7.01, and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof;
(c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by
any Subsidiary of Indebtedness of the Borrower or any other Subsidiary
(including pursuant to the Subsidiary Guaranties);
(e) Indebtedness of the Borrower or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement and (ii) the aggregate principal amount of Indebtedness permitted by
this clause (e) shall not exceed $25,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after the date
hereof; provided that (i) such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and (ii) the aggregate principal amount
of Indebtedness permitted by this clause (f) shall not exceed $25,000,000 at any
time outstanding;
(g) Indebtedness of the Borrower or any Subsidiary as an account party
in respect of trade letters of credit;
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(h) Existing LC Exposure;
(i) Indebtedness of the Borrower in an aggregate amount not to exceed
$250,000,000 incurred solely in connection with the issuance by the Borrower of
unsecured corporate bonds;
(j) the TILC Conduit Indebtedness; and
(k) other unsecured Indebtedness in an aggregate principal amount not
exceeding $50,000,000 at any time outstanding; provided that the aggregate
principal amount of Indebtedness of the Borrower's Subsidiaries permitted by
this clause (k) shall not exceed $10,000,000 at any time outstanding (excluding
any Indebtedness of any such Subsidiaries permitted by clause (j) of this
Section 7.01).
SECTION 7.02 Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances and Liens created by the Security
Instruments;
(b) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the date hereof and set forth in Schedule 7.02; provided that (i)
such Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary, and (ii) such Lien shall secure only those obligations which it
secures on the date hereof, and extensions, removals and replacements thereof
that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary or existing on any property or asset
of any Person that becomes a Subsidiary after the date hereof prior to the time
such Person becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be, and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof; and
(d) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (i) such Liens secure
Indebtedness permitted by clause (e) of Section 7.01, (ii) such Liens and the
Indebtedness secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such security
interests shall not apply to any other property or assets of the Borrower or any
Subsidiary.
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SECTION 7.03 Fundamental Changes.
(a) Except as otherwise set forth herein, the Borrower will not, and
will not permit any Subsidiary to, (i) merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it; (ii)
except for (A) sales of inventory in the ordinary course of business, and (B)
the sale of assets described on Schedule 7.03 (or the sale of the voting
securities or other equity interests of Subsidiaries whose only substantial
assets are those described on Schedule 7.03), (y) sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the stock of any
of its Subsidiaries (in each case, whether now owned or hereafter acquired), or
(z) sell, transfer, lease or otherwise dispose of any Collateral; provided, that
the Borrower may sell, transfer or otherwise dispose of the Collateral if each
of the following conditions is satisfied: (1) the Borrower shall have provided
the Administrative Agent and the Collateral Agent with not less than thirty (30)
Business Days prior written notice of such sale, transfer or other disposition,
(2) no Default has occurred which is continuing and no Default will result after
giving effect to such sale, transfer or disposition, (3) without limiting the
foregoing, after giving effect to such sale, transfer or other disposition, the
Borrower shall be in compliance with Section 7.09(d), (4) the Borrower will
immediately upon the consummation of such sale, transfer or other disposition
submit additional Property owned by the Borrower or its Subsidiaries and
reasonably acceptable to the Administrative Agent, the Collateral Agent and
Required Lenders with a value (as determined by the Administrative Agent and
Collateral Agent in their sole discretion) equal to or greater than the disposed
of Collateral as security for the Obligations, and (5) simultaneously with
submission of additional Property pursuant to clause (4) above, the Borrower
shall deliver to the Administrative Agent and the Collateral Agent such Security
Instruments and other documents, instruments, financing statements, certificates
and agreements (including, without limitation, title policies and surveys, as
applicable) as the Administrative Agent or Collateral Agent shall deem necessary
or appropriate in its sole discretion to create, evidence and perfect the Liens
contemplated by this Agreement and the Security Instruments; or (iii) liquidate
or dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (A) any
Subsidiary may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (B) any Subsidiary may merge into any Subsidiary in a
transaction in which the surviving entity is a Subsidiary, (C)(i) the Borrower
may sell, transfer, lease or otherwise dispose of its assets to any Subsidiary,
and (ii) any Subsidiary may sell, transfer, lease or otherwise dispose of its
assets to the Borrower or any other Subsidiary, and (D) any Subsidiary may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 7.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Borrower and its Subsidiaries on the date of execution of
this Agreement and businesses reasonably related thereto.
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SECTION 7.04 Investments, Loans, Advances, Guarantees and Acquisitions. The
Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower in the capital stock of its
Subsidiaries, and investments by such Subsidiaries in the capital stock of their
respective subsidiaries;
(c) loans or advances made by the Borrower to any Subsidiary and made
by any Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 7.01;
(e) Permitted Acquisitions; and
(f) investments existing on the date hereof and set forth in Schedule
7.04.
SECTION 7.05 Hedging Agreements. The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any Hedging Agreement, other than Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
SECTION 7.06 Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (a) the Borrower may
declare and pay dividends with respect to its capital stock payable solely in
additional shares of its common stock, (b) Subsidiaries may declare and pay
dividends ratably with respect to their capital stock, (c) the Borrower may make
Restricted Payments pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Borrower and its
Subsidiaries, including, without limitation, pursuant to any severance packages
for management or employees of the Borrower and its Subsidiaries and approved by
the Board of Directors of the Borrower and (d) provided no Default has occurred
which is continuing, the Borrower may (i) for the period commencing on the
Effective Date and continuing through December 31, 2002, declare and pay (A)
dividends in an aggregate amount not in excess of $12,000,000, and (ii) for each
Fiscal Year thereafter, commencing with the Fiscal Year ending December 31,
2003, declare and pay dividends in an aggregate amount not in excess of
$15,000,000; provided, that, in the event the ratings established by S&P and
Xxxxx'x for the Index Debt are increased to BBB- (stable)/Ba1 (stable) or above,
and for so long as such Index Debt remains at or above such level or category
with respect to both S&P and Xxxxx'x (and further provided no Default has
occurred which is continuing), the Borrower may declare and pay dividends in an
aggregate amount not in excess of
64
$20,000,000 for any Fiscal Year; provided, further that, in the event the
ratings established by S&P and Xxxxx'x for the Index Debt are increased to BBB-
(stable)/Baa3 (stable) or above, and for so long as such Index Debt remains at
or above such level or category with respect to both S&P and Xxxxx'x (and
further provided no Default has occurred which is continuing), the Borrower may
declare and pay dividends in an aggregate amount not in excess of $35,000,000
for any Fiscal Year.
SECTION 7.07 Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliate and (c) any Restricted Payment permitted by Section 7.06.
SECTION 7.08 Restrictive Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien in favor of the Administrative Agent
or Collateral Agent upon any of its property or assets, or (b) the ability of
any Subsidiary to pay dividends or other distributions with respect to any
shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or
any other Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement, (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 7.08 (but shall apply to any extension or renewal
of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (v) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to Liens
on property or assets permitted by Section 7.02(c) hereof if such restrictions
or conditions apply only to the property or assets contemplated therein, (vi)
clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to purchase money Indebtedness permitted by
this Agreement if such restrictions or conditions apply only to the property or
assets being financed thereunder, and (vii) clause (a) of the foregoing shall
not apply to customary provisions in leases and other contracts restricting the
assignment thereof.
SECTION 7.09 Financial Covenants.
(a) The Borrower will not permit the Interest Coverage Ratio to be less
than the ratio for each Rolling Period indicated below:
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Period Ratio
------ -----
Rolling Period ending June 30, 2002 1.50 to 1.00
Rolling Period ending September 30, 2002 1.50 to 1.00
Rolling Period ending December 31, 2002 1.75 to 1.00
Rolling Period ending March 31, 2003 1.75 to 1.00
Rolling Period ending June 30, 2003 1.75 to 1.00
Rolling Period ending September 30, 2003 1.75 to 1.00
Each Rolling Period thereafter 2.00 to 1.00
(b) The Borrower will not permit the Leverage Ratio to be greater than
the ratio for each Rolling Period indicated below:
Period Ratio
------ -----
Rolling Period ending June 30, 2002 4.75 to 1.00
Rolling Period ending September 30, 2002 4.50 to 1.00
Rolling Period ending December 31, 2002 4.50 to 1.00
Rolling Period ending March 31, 2003 4.25 to 1.00
Rolling Period ending June 30, 2003 4.25 to 1.00
Rolling Period ending September 30, 2003 4.00 to 1.00
Rolling Period ending December 31, 2003 4.00 to 1.00
Each Rolling Period thereafter 3.50 to 1.00
(c) The Borrower will not permit Consolidated Net Worth at any time to
be less than the sum of (i) $800,000,000, plus (ii) 50% of the Borrower's and
its Subsidiaries' cumulative positive consolidated net income for each Fiscal
Quarter beginning after the Effective Date, plus (iii) one-hundred percent
(100%) of the net cash proceeds received by the Borrower at any time after the
Effective Date as a result of the issuance of any Equity.
(d) The Borrower will not permit the Asset Coverage Ratio to be less
than 2.00 to 1.00 at any time.
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SECTION 7.10 Fiscal Year. The Borrower will not change its Fiscal Year.
SECTION 7.11 Capital Expenditures. The Borrower will not, and will not
permit any of its Subsidiaries to, make Capital Expenditures (Leasing Company)
in any Fiscal Year in excess of $150,000,000 in an aggregate amount.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay (including, but not limited to, any
failure to pay any mandatory prepayment required by Section 2.11(a)) any
principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower or any Material Subsidiary shall fail to pay any
interest on any Loan or any fee or any other amount (other than an amount
referred to in clause (a) of this Article VIII) payable under this Agreement or
any other Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement or any
other Loan Document or any amendment or modification hereof or thereof, or
waiver hereunder or thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this
Agreement or any other Loan Document, or any amendment or modification hereof or
thereof, or waiver hereunder or thereunder, shall prove to have been incorrect
when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 4.03, Article V, Section 6.01, 6.02,
6.03 (with respect to the Borrower's and its Subsidiaries' existence), 6.08 or
in Article VII;
(e) the Borrower or any Subsidiary (as applicable) shall fail to
observe or perform any covenant, condition or agreement contained in this
Agreement or any other Loan Document (other than those specified in clause (a),
(b) or (d) of this Article VIII), and such failure shall continue unremedied for
a period of 30 days after the earlier to occur of either (i) an Authorized
Officer of the Borrower becoming aware of such default or (ii) notice thereof
having been given to the Borrower by the Administrative Agent (which notice will
be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable;
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(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article VIII, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any Lien purported to be created under any Loan Document shall
cease to be, or shall be asserted by the Borrower or any of its Subsidiaries not
to be, a valid and perfected
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Lien on any Collateral, with the priority required hereby or by the
Intercreditor Agreement, except as a result of the sale or other disposition of
the applicable Collateral in a transaction permitted under the Loan Documents;
(o) either any Subsidiary Guaranty, any Security Agreement, any Pledge
Agreement, any Mortgage, the Intercreditor Agreement or any other Security
Instrument shall for any reason cease to be in full force and effect and valid,
binding and enforceable in accordance with its terms after its date of
execution, or the Borrower or any of its Subsidiaries shall so state in writing;
or
(p) the occurrence of an Event of Default under and as defined in the
Intercreditor Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article VIII), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article VIII, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower. In addition to the
other rights and remedies that the Lenders may have upon the occurrence of an
Event of Default, the Required Lenders may direct the Administrative Agent and,
in accordance with the terms of, and subject to the necessary consent of the
other parties to, the Intercreditor Agreement, the Collateral Agent, to exercise
the rights and remedies available to the Administrative Agent and the Collateral
Agent under the Security Agreements, the Pledge Agreements, the Mortgages and
the other Security Instruments.
ARTICLE IX
AGENTS
Each of the Lenders, the Issuing Bank and the other Agents hereby
irrevocably appoint JPMorgan Chase Bank as Administrative Agent, and each of
Dresdner Bank AG, New York and Grand Cayman Branches and The Royal Bank of
Scotland plc as Syndication Agents, and authorize each such Agent to take such
actions on its behalf and to exercise such powers as are delegated to such
Agents by the terms of the Loan Documents, together with such actions and powers
as are reasonably incidental thereto. Without limiting the foregoing, the
Administrative Agent is hereby authorized to execute and deliver the
Intercreditor Agreement on behalf of each
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Lender and bind each Lender to the terms thereof as if each Lender were directly
a party thereto. Further, each Lender hereby irrevocably appoints JPMorgan Chase
Bank as Collateral Agent for the Lenders under the Intercreditor Agreement and
the Security Instruments (as applicable).
Any bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if it
were not the Administrative Agent hereunder.
The Agents shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Agents shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) each Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that such Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 10.02, or further, with respect to the Collateral Agent, such other
number or percentage of Persons as necessary or required by the terms of the
Intercreditor Agreement), and (c) except as expressly set forth in the Loan
Documents, the Agents shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as such Agent or any of its Affiliates in any capacity. Each Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.02) or in the absence of its own gross negligence or willful misconduct;
PROVIDED, HOWEVER, THAT IT IS THE INTENTION OF THE PARTIES HERETO THAT EACH OF
THE AGENTS BE INDEMNIFIED IN THE CASE OF ITS OWN NEGLIGENCE (OTHER THAN GROSS
NEGLIGENCE), REGARDLESS OF WHETHER SUCH NEGLIGENCE IS SOLE OR CONTRIBUTORY,
ACTIVE OR PASSIVE, IMPUTED, JOINT OR TECHNICAL. Each Agent shall be deemed not
to have knowledge of any Default (other than, with respect to the Administrative
Agent, knowledge of a Default of the types specified in clauses (a) or (b) of
Article VIII) unless and until written notice thereof is given to such Agent by
the Borrower or a Lender, and such Agent shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
The Agents shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The
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Agents also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Agents may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
Any Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by such Agent. Any
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of such Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as an Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent which shall be a bank with an
office in Dallas, Texas, Houston, Texas or New York City, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at Trinity Industries, Inc., 0000
Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxx (Telecopy No.:
214-589-8824);
(b) if to the Administrative Agent, to it at JPMorgan Chase Bank, 0000
Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx, Xxxxx 00000, Attention: Xxxxxxx Xxxxxx
(Telecopy No.: 214-965-2044), with a copy to JPMorgan Xxxxx Xxxx, 0 Xxxxx
Xxxxxxxxx Plaza, 8th Floor, New York, New York 10081, Attention: Xxxxxxx Xxxxxxx
(Telecopy No.: 212-552-2261);
(c) if to the Issuing Bank, to it at JPMorgan Chase Bank, 0000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx, Xxxxx 00000, Attention: Xxxxxxx Xxxxxx
(Telecopy No.: 214-965-2044), with a copy to JPMorgan Xxxxx Xxxx, 0 Xxxxx
Xxxxxxxxx Plaza, 8th Floor, New York, New York 10081, Attention: Xxxxxxx Xxxxxxx
(Telecopy No.: 212-552-2261); and
(d) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02 Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing Bank
or any Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section 10.02, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
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(b) Neither this Agreement nor any of the Loan Documents nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Borrower and the
Required Lenders or by the Borrower and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender directly affected thereby, (v) release any Material
Subsidiary from its obligations under its Subsidiary Guaranty, without the
written consent of each Lender, (vi) release any material portion of the
Collateral without the written consent of each Lender and each party otherwise
required to consent thereto pursuant to the terms of the Intercreditor
Agreement, except as otherwise expressly permitted hereby, and provided that the
Administrative Agent and the Collateral Agent shall release (without consent
from the Lenders or any other Person) any Collateral sold, transferred or
otherwise disposed of as permitted by Section 7.03 hereof, (vii) waive any of
the conditions set forth in Section 4.01 to the making of the Loans without the
consent of each Lender affected thereby, or (viii) change any of the provisions
of this Section 10.02(b) or the definition of "Required Lenders," "Required
Revolving Lenders" or "Required Term Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender directly affected thereby;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of any Agent or the Issuing Bank hereunder without the
prior written consent of such Agent or the Issuing Bank, as the case may be.
Further, to the extent any contemplated or proposed waiver, amendment or
modification affects only Revolving Loans and/or Revolving Lenders, or only Term
Loans and/or Term Lenders, any such waiver, amendment or modification may be
effectuated with the consent of the requisite number of Revolving Lenders or
Term Lenders, as the case may be, affected thereby, in accordance with the
provisions of this Section 10.2(b).
SECTION 10.03 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Arranger and their respective
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Agents, the Issuing Bank or any Lender, including the fees,
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charges and disbursements of any counsel for the Agents, the Issuing Bank or any
Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents, including its
rights under this Section 10.03, or in connection with the Loans made or Letters
of Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) The Borrower shall indemnify the Agents, the Issuing Bank, the
Arranger and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document, the performance by the parties to the Loan
Documents of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including any refusal by
the Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or willful misconduct of such Indemnitee (IT BEING UNDERSTOOD THAT IT
IS THE INTENTION OF THE PARTIES HERETO THAT EACH OF THE INDEMNITEES BE
INDEMNIFIED IN THE CASE OF ITS OWN NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE),
REGARDLESS OF WHETHER SUCH NEGLIGENCE IS SOLE OR CONTRIBUTORY, ACTIVE OR
PASSIVE, IMPUTED, JOINT OR TECHNICAL). No Indemnitee shall be liable for any
damages arising from the use by others of any information or other material
obtained through the Internet, Intralinks or other similar information
transmission systems in connection with the Loan Documents. The Borrower agrees
that no Indemnitee shall have any liability for any indirect or consequential
damages in connection with its activities related to the Loan Documents.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Agents or the Issuing Bank under paragraph (a) or (b) of
this Section 10.03, each Lender severally agrees to pay to such Agents or the
Issuing Bank, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Agents or the Issuing Bank in
its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special,
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indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, any other Loan Document, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section 10.03 shall be payable promptly
after written demand therefor.
SECTION 10.04 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Revolving Commitment and the Loans at the time owing to it) by executing,
and causing the assignee thereof to execute, an Assignment and Acceptance;
provided that (i) except in the case of an assignment to a Lender or a Lender
Affiliate, each of the Borrower and the Administrative Agent (and, in the case
of an assignment of all or a portion of a Revolving Commitment or any Revolving
Lender's obligations in respect of its LC Exposure, the Issuing Bank) must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an assignment to a
Lender or a Lender Affiliate or an assignment of the entire remaining amount of
an assigning Revolving Lender's Revolving Commitment, the aggregate amount of
the Revolving Commitments assigned to an assignee, and the aggregate amount of
the Revolving Commitments retained by the assignor after giving effect to such
assignment, shall not be less than $10,000,000 (provided, that, if the Revolving
Commitments have expired or terminated, such limits shall apply to the amount of
the Revolving Credit Exposure assigned and retained), (iii) except in the case
of an assignment to a Lender or a Lender Affiliate or an assignment of the
entire remaining amount of an assigning Revolving Lender's Revolving Commitment,
the aggregate amount of the Revolving Commitments of the assigning Revolving
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall be in increments of $1,000,000 and not be less than
$5,000,000, unless each of the Borrower and the Administrative Agent otherwise
consent, (iv) except in the case of an assignment to a Lender or a Lender
Affiliate, or an assignment of the entire interest of a Term Lender in the Term
Loans held by it, the aggregate amount of the Term Loans of the assigning Term
Lender subject to each such assignment (determined as of the date the Assignment
and
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Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall be in increments of $1,000,000 and not less than $1,000,000, unless
each of the Borrower and the Administrative Agent otherwise consent, (v) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (v) shall not apply to rights in respect of outstanding Competitive
Loans, (vi) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, except in the case of an assignment to a Lender
Affiliate, in which case no processing and recordation fee shall be payable, and
(vii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further that
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section
10.04, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and to the other Loan
Documents and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement and
the other Loan Documents, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17, 2.19 and
10.03). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (e) of this Section
10.04(b).
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in Houston, Texas or Dallas,
Texas a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement and the other Loan Documents,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section 10.04 and any written consent to such assignment required by
paragraph (b) of this Section 10.04, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
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(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Revolving Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or waiver
of any provision of the Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 10.02(b) that affects such Participant. Subject to
paragraph (f) of this Section 10.04, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 10.04. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.05 Survival. All covenants, agreements, representations and
warranties made by the Borrower and the Material Subsidiaries in the Loan
Documents and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the other Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that any Agent, the Issuing Bank, the Arranger or any Lender
may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding
and unpaid or any
77
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17, 2.19 and 10.03 and
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06 Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Agents constitute
the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Article IV, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 10.07 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08 Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 10.09 SECTION 10.09 Governing Law; Jurisdiction; Consent to Service
of Process.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and governed by the law of the State of Texas.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Courts of the
State of Texas and of the United States District Court for the Northern District
of Texas, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for
78
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such Texas State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this Section 10.09. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 10.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY 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 (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.10.
SECTION 10.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12 Confidentiality. Each of the Agents, the Issuing Bank and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such
79
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section 10.12, to any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement, (g)
with the consent of the Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section
10.12 or (ii) becomes available to the Administrative Agent, the Issuing Bank or
any Lender on a nonconfidential basis from a source other than the Borrower. For
the purposes of this Section 10.12, "Information" means all information received
from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or
any Lender on a non-confidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 10.13 Interest Rate Limitation. It is the intention of the parties
hereto to conform strictly to applicable interest, usury and criminal laws and,
anything herein to the contrary notwithstanding, the obligations of the Borrower
or any Material Subsidiary to a Lender, the Issuing Bank or any Agent under this
Agreement or any other Loan Document shall be subject to the limitation that
payments of interest shall not be required to the extent that receipt thereof
would be contrary to provisions of law applicable to such Lender, the Issuing
Bank or such Agent limiting rates of interest which may be charged or collected
by such Lender, the Issuing Bank or such Agent. Accordingly, if the transactions
contemplated hereby or thereby would be illegal, unenforceable, usurious or
criminal under laws applicable to a Lender, the Issuing Bank or any Agent
(including the laws of any jurisdiction whose laws may be mandatorily applicable
to such Lender or the Administrative Agent notwithstanding anything to the
contrary in this Agreement or any other Loan Document) then, in that event,
notwithstanding anything to the contrary in this Agreement or any other Loan
Document, it is agreed as follows:
(i) the provisions of this Section 10.13 shall govern and control;
(ii) the aggregate of all consideration which constitutes interest
under applicable law that is contracted for, taken, reserved, charged or
received under this Agreement, or under any of the other aforesaid
agreements or otherwise in connection with this Agreement or any other Loan
Document by such Lender, the Issuing Bank or such Agent shall under no
circumstances exceed the maximum amount of interest allowed by applicable
law (such maximum lawful interest rate if any, with respect to such Lender,
the Issuing Bank and the Agents herein called the "Highest Lawful Rate"),
and any excess shall be canceled automatically and if theretofore paid
shall be credited to the
80
Borrower by such Lender, the Issuing Bank or such Agent (or, if such
consideration shall have been paid in full, such excess refunded to the
Borrower);
(iii) all sums paid, or agreed to be paid, to such Lender, the Issuing
Bank or such Agent for the use, forbearance and detention of the
indebtedness of the Borrower to such Lender, the Issuing Bank or such Agent
hereunder or under any Loan Document shall, to the extent permitted by laws
applicable to such Lender, the Issuing Bank or such Agent, as the case may
be, be amortized, prorated, allocated and spread throughout the full term
of such indebtedness until payment in full so that the actual rate of
interest is uniform throughout the full term thereof;
(iv) if at any time the interest provided pursuant to this Section
10.13 or any other clause of this Agreement or any other Loan Document,
together with any other fees or compensation payable pursuant to this
Agreement or any other Loan Document and deemed interest under laws
applicable to such Lender, the Issuing Bank or such Agent, exceeds that
amount which would have accrued at the Highest Lawful Rate, the amount of
interest and any such fees or compensation to accrue to such Lender, the
Issuing Bank or such Agent pursuant to this Agreement or such other Loan
Document shall be limited, notwithstanding anything to the contrary in this
Agreement or any other Loan Document, to that amount which would have
accrued at the Highest Lawful Rate, but any subsequent reductions, as
applicable, shall not reduce the interest to accrue to such Lender, the
Issuing Bank or such Agent pursuant to this Agreement or such other Loan
Document below the Highest Lawful Rate until the total amount of interest
accrued pursuant to this Agreement or such other Loan Document, as the case
may be, and such fees or compensation deemed to be interest equals the
amount of interest which would have accrued to such Lender, the Issuing
Bank or such Agent if a varying rate per annum equal to the interest
provided pursuant to any other relevant Section hereof (other than this
Section 10.13) or thereof as applicable, had at all times been in effect,
plus the amount of fees which would have been received but for the effect
of this Section 10.13; and
(v) with the intent that the rate of interest herein shall at all times
be lawful, if the receipt of any funds owing hereunder or under any other
agreement related hereto (including any of the other Loan Documents) by
such Lender, the Issuing Bank or such Agent would cause such Lender, the
Issuing Bank or such Agent to charge the Borrower a criminal rate of
interest, the Lenders, the Issuing Bank and the Agents agree that they will
not require the payment or receipt thereof or a portion thereof which would
cause a criminal rate of interest to be charged by such Lender, the Issuing
Bank or such Agent, as applicable, and if received such affected Lender,
the Issuing Bank or such Agent will return such funds to the Borrower so
that the rate of interest paid by the Borrower shall not exceed a criminal
rate of interest from the date this Agreement was entered into.
SECTION 10.14 Arranger; Syndication Agents. None of the Arranger or the
Syndication Agents shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or any other Loan Document other
than, except in the case of the Arranger, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Arranger or the Syndication
Agents shall have or be deemed to have any fiduciary relationship with any
Lender
81
or the Borrower or any of its Subsidiaries. The Borrower and each Lender
acknowledge that it has not relied, and will not rely, on any of the Arranger or
the Syndication Agents in deciding to enter into this Agreement or in taking any
action hereunder or under the Loan Documents.
SECTION 10.15 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN OR AMONG THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
[SIGNATURE PAGES BEGIN ON NEXT PAGE]
82
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
TRINITY INDUSTRIES, INC.
By:
-------------------------------
Xxxx X. Xxxxx,
Executive Vice President
[Signature Page]
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
JPMORGAN CHASE BANK,
as a Revolving Lender, a Term
Lender and as Administrative Agent
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
[Signature Page]
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a
Revolving Lender, a Term Lender
and as a Syndication Agent
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
[Signature Page]
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
THE ROYAL BANK OF SCOTLAND plc,
as a Revolving Lender and as
a Syndication Agent
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
[Signature Page]
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
BNP PARIBAS, as a Revolving Lender
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
[Signature Page]
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
THE BANK OF NOVA SCOTIA, as a
Revolving Lender and a Term Lender
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
[Signature Page]
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
WACHOVIA BANK, N.A., as a Revolving
Lender and a Term Lender
By:
--------------------------------
Name:
---------------------------
Title:
---------------------------
[Signature Page]
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
BANK ONE, NA, as a Revolving Lender
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
[Signature Page]
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
THE BANK OF TOKYO - MITSUBISHI, LTD.,
as a Revolving Lender
By:
----------------------------------
Name:
-----------------------------
Title:
-----------------------------
By:
----------------------------------
Name:
-----------------------------
Title:
-----------------------------
[Signature Page]
SIGNATURE PAGE TO
CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH, as a
Revolving Lender
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
[Signature Page]
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of June 4, 2002 (as
amended and in effect on the date hereof, the "Credit Agreement"), among Trinity
Industries, Inc., the Lenders named therein, JPMorgan Chase Bank, as
Administrative Agent for the Lenders, and the other Agents named therein. Terms
defined in the Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement and the other Loan Documents, including,
without limitation, the interests set forth on the reverse hereof in the
Revolving Commitment of the Assignor on the Assignment Date and Competitive
Loans and Loans owing to the Assignor which are outstanding on the Assignment
Date, together with the participations in Letters of Credit, LC Disbursements
held by the Assignor on the Assignment Date, but excluding accrued interest and
fees to and excluding the Assignment Date. The Assignee hereby acknowledges
receipt of a copy of the Credit Agreement and the other Loan Documents. From and
after the Assignment Date (i) the Assignee shall be a party to and be bound by
the provisions of the Credit Agreement and the other Loan Documents and, to the
extent of the Assigned Interest, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Loan Documents.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.17(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 10.04(b) of the Credit Agreement (to the extent
required by such Section 10.04(b)).
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Texas.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
A-1
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
================================================================================
Principal Amount Percentage Assigned of
Assigned Facility/Commitment
(and identifying (set forth, to at least 8 decimals,
information as to as a percentage of the Facility
individual Competitive and the aggregate Commitments
Facility Loans) of all Lenders thereunder)
--------------------------------------------------------------------------------
Commitment Assigned: $ %
--------------------------------------------------------------------------------
Loans:
--------------------------------------------------------------------------------
Competitive Loans:
================================================================================
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor], as Assignor
By:
--------------------------------
Name:
-------------------------
Title:
-------------------------
[Name of Assignee], as Assignee
By:
--------------------------------
Name:
-------------------------
Title:
-------------------------
A-2
The undersigned hereby consent to the within assignment:
Trinity Industries, Inc. JPMorgan Chase Bank,
as Administrative Agent
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------- -------------------------
JPMorgan Chase Bank,
as Issuing Bank
By:
--------------------------------
Name:
-------------------------
Title:
-------------------------
---------------
(1) Consents to be included to the extent required by Section 10.04(b) of the
Credit Agreement.
A-3
EXHIBIT B
[FORM OF]
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of ____________, 200_, is
made by _________________, a _________________ (the "Guarantor"), in favor of
JPMORGAN CHASE BANK, as Administrative Agent (together with all successors and
assigns thereto, the "Administrative Agent") for each of the Lender Parties.
WITNESSETH:
WHEREAS, pursuant to a Credit Agreement, dated as of June 4, 2002
(together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among Trinity Industries, Inc., a Delaware corporation (the
"Borrower"), the various financial institutions as are, or may from time to time
become, parties to the Credit Agreement (the "Lenders"), the various financial
institutions as are or may from time to time become Agents under the Credit
Agreement, and JPMorgan Chase Bank, as Administrative Agent for the Lenders, the
Lenders have agreed to extend Commitments to make Loans to, and the Issuing Bank
has agreed to issue Letters of Credit for the account of, the Borrower; and
WHEREAS, as a condition precedent to the making of the initial Loans
and the issuance of the initial Letter of Credit under the Credit Agreement, the
Guarantor is required to execute and deliver this Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to, and the Letters of Credit
issued from time to time for the account of, the Borrower and its Subsidiaries
by the Lenders and the Issuing Bank, as the case may be, pursuant to the Credit
Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to, and to induce the Issuing Bank to issue the
Letters of Credit (including the initial Letter of Credit) for the account of,
the Borrower and its Subsidiaries pursuant to the Credit Agreement and the
Lender Parties to extend financial accommodations, the Guarantor agrees, for the
benefit of each Lender Party, as follows:
B-1
ARTICLE 1
DEFINITIONS
Section 1.1 CERTAIN TERMS. The following terms (whether or not underscored)
when used in this Guaranty, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender Indebtedness" is defined in the Credit Agreement.
"Lender Party" means, as the context may require, any Lender, any
Agent, any Issuing Bank, and each of its respective successors, transferees and
assigns.
"Lenders" is defined in the first recital.
"Loan Parties" means, collectively, the Borrower, the Guarantor and any
other Subsidiary of the Borrower which executes a Loan Document, and "Loan
Party" means any one of the foregoing.
Section 1.2 CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined herein
or the context otherwise requires, terms used in this Guaranty, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE 2
GUARANTY PROVISIONS
Section 2.1 GUARANTY. The Guarantor hereby absolutely, unconditionally and
irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of all Lender Indebtedness of the Borrower and each other Loan Party
now or hereafter existing under the Credit Agreement and each other Loan
Document to which the Borrower or such other Loan Party is or may become a
party, whether for principal, interest, fees, expenses or otherwise (including
all such amounts which would become due but for the operation of the automatic
stay under Section 362(4) of the United States Bankruptcy Code, 11 U.S.C.
ss.362(4), and the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)), and
B-2
(b) indemnifies each Lender Party for any and all costs and expenses
(including reasonable attorney's fees and expenses) incurred by such Lender or
such holder, as the case may be, in enforcing any rights under this Guaranty;
provided, however, that the Guarantor shall be liable under this Guaranty for
the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and the Guarantor specifically agrees that it shall not
be necessary or required that any Lender Party exercise any right, assert any
claim or demand, or enforce any remedy whatsoever against the Borrower or any
other Loan Party (or any other Person) before or as a condition to the
obligations of the Guarantor hereunder.
Section 2.2 ACCELERATION OF GUARANTY. The Guarantor agrees that, in the
event that the Lender Indebtedness has been accelerated pursuant to Article VIII
of the Credit Agreement, the Guarantor will pay to the Administrative Agent for
itself and as agent for the Lender Parties forthwith the full amount of all such
Lender Indebtedness.
Section 2.3 GUARANTY ABSOLUTE, ETC. This Guaranty shall in all respects be
a continuing, absolute, unconditional and irrevocable guaranty of payment, and
shall remain in full force and effect until all Lender Indebtedness of the
Borrower and each other Loan Party has been paid in full, all obligations of the
Guarantor hereunder shall have been paid in full and all Commitments shall have
terminated and all Letters of Credit shall have terminated or expired. The
Guarantor guarantees that the Lender Indebtedness of the Borrower and each other
Loan Party will be paid strictly in accordance with the terms of the Credit
Agreement and each other Loan Document under which they arise, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Lender Party or any holder of
any note with respect thereto. The liability of the Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Credit
Agreement or any other Loan Document;
(b) the failure of any Lender Party
(1) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Loan Party or any other Person
(including any other guarantor) under the provisions of the Credit
Agreement, any other Loan Document, or otherwise, or
(2) to exercise any right or remedy against any other guarantor
of any Lender Indebtedness of the Borrower or any other Loan Party;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Lender Indebtedness of the Borrower or any
other Loan Party, or any
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other extension, compromise, or renewal of any Lender Indebtedness of the
Borrower or any other Loan Party;
(d) any reduction, limitation, impairment or termination of any
Lender Indebtedness of the Borrower or any other Loan Party for any reason
(other than indefeasible payment in full in cash of the Lender Indebtedness),
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and the Guarantor hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, non-genuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any Lender
Indebtedness of the Borrower, any other Loan Party or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit Agreement or
any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Lender Party securing
any of the Lender Indebtedness of the Borrower or any other Loan Party; or
(g) any other circumstance (other than indefeasible payment in full
in cash of the Lender Indebtedness) which might otherwise constitute a defense
available to, or a legal or equitable discharge of, the Borrower, any other Loan
Party, any surety, or any guarantor.
Section 2.4 REINSTATEMENT, ETC. The Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Lender Indebtedness is
rescinded or must otherwise be restored by any Lender Party, upon the
insolvency, bankruptcy or reorganization of the Borrower, any other Loan Party
or otherwise, all as though such payment had not been made.
Section 2.5 WAIVER, ETC. The Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Lender
Indebtedness of the Borrower or any other Loan Party and this Guaranty and any
requirement that the Administrative Agent or any other Lender Party protect,
secure, perfect or insure any Lien, or any property subject thereto, or exhaust
any right or take any action against the Borrower, any other Loan Party or any
other Person (including any other guarantor) or any collateral securing the
Lender Indebtedness of the Borrower or any other Loan Party, as the case may be.
Section 2.6 WAIVER OF SUBROGATION. Until the indefeasible payment in full
in cash of all Lender Indebtedness and the termination or expiration of all
Commitments and Letters of Credit, the Guarantor hereby irrevocably waives any
claim or other rights which it may now or hereafter acquire against the Borrower
or any other Loan Party that arise from the existence, payment, performance or
enforcement of the Guarantor's obligations under this Guaranty or any other Loan
Document, including any right of subrogation, reimbursement, exoneration, or
indemnification, any right to participate in any claim or remedy of the Lender
Parties against the
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Borrower or any other Loan Party or any collateral which the Administrative
Agent now has or hereafter acquires, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including the right
to take or receive from the Borrower or any other Loan Party, directly or
indirectly, in cash or other property or by set-off or in any manner, payment or
security on account of such claim or other rights. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, such amount shall be
deemed to have been paid to the Guarantor for the benefit of, and held in trust
for, the Lender Parties, and shall forthwith be paid to the Administrative Agent
for the benefit of the Lender Parties to be credited and applied to the Lender
Indebtedness, whether matured or unmatured. The Guarantor acknowledges that it
will receive direct and indirect benefits from the financing arrangements
contemplated by the Credit Agreement and that the waiver set forth in this
Section is knowingly made in contemplation of such benefits.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants unto each Lender Party as set forth in this Article.
Section 3.2 ORGANIZATION; POWERS. The Guarantor is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
Section 3.3 AUTHORIZATION; ENFORCEABILITY. The execution, delivery and
performance by the Guarantor of this Guaranty and each other Loan Document
executed or to be executed by it are within the Guarantor's corporate,
partnership or limited liability company powers (as applicable), and have been
duly authorized by all necessary corporate, partnership or limited liability
company action (as applicable), and if required and applicable, stockholder
action. This Guaranty has been duly executed and delivered by the Guarantor and
constitutes, and each other Loan Document executed or to be executed by the
Guarantor, when executed and delivered by the Guarantor, will constitute, a
legal, valid and binding obligation of the Guarantor, enforceable in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
Section 3.4 APPROVALS; NO CONFLICTS. The execution, delivery and
performance by the Guarantor of this Guaranty and each other Loan Document
executed or to be executed by it, (a) do not require any approval of any
Governmental Authority or other third party approvals, except such as have been
obtained or made and are in full force and effect and except filings necessary
to perfect Liens created in connection with this Guaranty, (b) will not violate
any applicable Governmental Rule or the articles of organization, formation or
incorporation (or comparable document), bylaws, operating agreement, partnership
agreement, limited liability company agreement or similar documents (as
applicable) of the Guarantor or any
B-5
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, agreement, or other instrument binding upon the Guarantor
or its assets, or give rise to a right thereunder to require any payment to be
made by the Guarantor and (d) will not result in the creation or imposition of
any Lien on any asset of the Guarantor except Liens created under the Loan
Documents.
Section 3.5 BENEFIT TO THE GUARANTOR. The Guarantor is a wholly-owned
subsidiary of the Borrower; and the Guarantor's guaranty pursuant to this
Guaranty reasonably may be expected to benefit, directly or indirectly, the
Guarantor; and the Guarantor has determined that this Guaranty is necessary and
convenient to the conduct, promotion and attainment of the business of the
Guarantor and the Borrower.
Section 3.6 LITIGATION MATTERS. Except for Disclosed Matters, there are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Guarantor, threatened
against or affecting the Guarantor or any of its Subsidiaries or any of their
respective properties, businesses, assets or revenues, (i) as to which there is
a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that question the validity or enforceability of any Loan Documents or seek to
enjoin or prevent the Transactions. Since the date of this Guaranty, there has
been no change in the status of the Disclosed Matters that, individually or in
the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
Section 3.7 SOLVENCY. Immediately after entering into this Guaranty, the
Guarantor will be Solvent. As used herein, the term "Solvent" means, with
respect to the Guarantor, a condition under which (a) the fair market value of
the Guarantor's assets is, on the date of determination greater than the total
amount of the Guarantor's liabilities (including contingent and unliquidated
liabilities) at such time; and (b) the Guarantor is able to pay all of its
liabilities as such liabilities mature. For purposes of this definition (i) the
amount of the Guarantor's contingent or unliquidated liabilities at any time
shall be the amount which, in light of all the facts and circumstances then
existing, represents the amount which can reasonably be expected to become an
actual or matured liability, (ii) the "fair saleable value" of an asset shall be
the amount which may be realized within a reasonable time either through
collection or sale of such asset at its regular market value, and (iii) the
"regular market value" of an asset shall be the amount which a capable and
diligent business person could obtain for such asset from an interested buyer
who is willing to purchase such asset under ordinary selling conditions.
Section 3.8 CREDIT AGREEMENT REPRESENTATIONS. All representations and
warranties made by the Borrower with respect to the Guarantor set forth in
Article III of the Credit Agreement are true and correct in all respects as of
the date hereof.
ARTICLE 4
COVENANTS, ETC.
Section 4.1 COVENANTS. Until the payment in full in cash of all Lender
Indebtedness and the termination or expiration of all Commitments and Letters of
Credit, the Guarantor
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covenants and agrees that the Guarantor will perform, comply with, observe and
fulfill each of the covenants, agreements and obligations contained in the
Credit Agreement, including without limitation, Article VI and Article VII of
the Credit Agreement, pertaining or otherwise applicable to the Guarantor in its
capacity as a Loan Party and a Subsidiary. The Guarantor hereby irrevocably and
unconditionally agrees to be bound by such covenants, agreements and obligations
applicable to it in such capacities as if the Guarantor were a party to the
Credit Agreement and such covenants, agreements, and obligations applicable to
it in such capacities are hereby reaffirmed by the Guarantor.
ARTICLE 5
MISCELLANEOUS PROVISIONS
Section 5.1 LOAN DOCUMENT. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
Section 5.2 BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS; ASSIGNMENT.
This Guaranty shall be binding upon the Guarantor and its successors,
transferees and assigns and shall inure to the benefit of and be enforceable by
the Administrative Agent, each other Lender Party and their respective
successors, transferees and assigns permitted by Section 10.04 of the Credit
Agreement.
Section 5.3 AMENDMENTS, ETC. No amendment to or waiver of any provision
of this Guaranty, nor consent to any departure by the Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Administrative Agent in accordance with Section 10.02(b) of the Credit
Agreement, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 5.4 ADDRESSES FOR NOTICES TO THE GUARANTOR. All notices and other
communications hereunder to the Guarantor shall be in writing (including
telecopy communication) and mailed or telecopied or delivered to it, addressed
to it at the address set forth below its signature hereto, or at such other
address as shall be designated by the Guarantor in a written notice to the
Administrative Agent at the address specified in the Credit Agreement complying
as to delivery with the terms of this Section. All such notices and other
communications shall be effective as provided in Section 10.01 of the Credit
Agreement.
Section 5.5 NO WAIVER REMEDIES. In addition to, and not in limitation of,
Section 2.03 and Section 2.05, no failure on the part of any Lender Party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 5.6 HEADINGS. Article and Section headings used herein are for
convenience of reference only, are not part of this Guaranty and shall not
affect the construction of, or be taken into consideration in interpreting, this
Guaranty.
B-7
Section 5.7 SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender Party is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender Party to or for the
credit or the account of the Guarantor or any of its Subsidiaries against any of
and all the obligations of Guarantor now or hereafter existing under this
Guaranty held by such Lender, irrespective of whether or not such Lender Party
shall have made any demand under this Guaranty and although such obligations may
be unmatured; provided, however, that any such set-off and application shall be
subject to the provisions of Section 2.18 of the Credit Agreement.
Section 5.8 SEVERABILITY. Any provision of this Guaranty held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality, and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 5.9 GOVERNING LAWS. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
(OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF TEXAS.
Section 5.10 WAIVER OF JURY TRIAL. GUARANTOR HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). GUARANTOR (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT SUCH LENDER PARTIES HAVE BEEN INDUCED TO ENTER INTO THE LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 5.11 NO ORAL AGREEMENTS. THIS WRITTEN GUARANTY AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AS TO THE SUBJECT MATTER HEREOF AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
[SIGNATURE ON FOLLOWING PAGE]
B-8
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
----------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
Address:
--------------------------------
----------------------------------------
----------------------------------------
Attention:
------------------------------
Telephone:
------------------------------
Telecopy:
------------------------------
B-9
EXHIBIT C
[FORM OF]
BORROWING REQUEST
___________, 200___
JPMorgan Chase Bank
as Administrative Agent
for the Lenders referred to below
c/o JPMorgan Chase Bank
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Facsimile:
-----------------------------
JPMorgan Chase Bank
as Administrative Agent
for the Lenders referred to below
c/o JPMorgan Chase Bank
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Facsimile:
-----------------------------
Re: Credit Agreement (hereinafter defined)
Dear Sirs:
Reference is made to that certain Credit Agreement, dated as of June 4,
2002 (together with all amendments, if any, from time to time made thereto, the
"Credit Agreement"), among Trinity Industries, Inc., a Delaware corporation (the
"Borrower"), the Lenders party thereto, and JPMorgan Chase Bank, as the
Administrative Agent (the "Administrative Agent"). Terms defined in the Credit
Agreement are used herein with the same meanings. This notice constitutes a
Borrowing Request and the Borrower hereby requests a Borrowing under the Credit
Agreement, and in that connection the Borrower specifies the following
information with respect to the Borrowing requested hereby:
(A) Principal amount of Borrowing(1):
-------------------------------
(B) Interest rate basis(2):
---------------
(1) Not less than $10,000,000 and an integral multiple of $2,000,000 (or
aggregate unused balance of the Revolving Commitments in the case of an ABR
Borrowing).
(2) Eurodollar Borrowing or ABR Borrowing.
C-1
(C) Effective date (which is a Business Day):
(D) Date of maturity (which is a Business Day):
(E) Interest Period(3):
If the Borrowing results in an increase in the aggregate outstanding
principal amount of the Loans, the Borrower hereby represents and warrants that
the conditions specified in paragraphs (a) and (b) of Section 4.02 of the Credit
Agreement are satisfied.
The Borrower has caused this Borrowing Request to be executed and
delivered by its Authorized Officer this _____ day of ___________, 200____.
Very truly yours,
TRINITY INDUSTRIES, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
---------------
(3) If applicable, selected period must comply with the definition of "Interest
Period" and end not later than the Revolving Commitment Termination Date.
C-2
EXHIBIT D
[FORM OF]
INTEREST ELECTION REQUEST
JPMorgan Chase Bank
as Administrative Agent
for the Lenders referred to below
c/o JPMorgan Chase Bank
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Facsimile:
-----------------------------
JPMorgan Chase Bank
as Administrative Agent
for the Lenders referred to below
c/o JPMorgan Chase Bank
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Facsimile:
-----------------------------
Re: Credit Agreement (hereinafter defined)
Dear Sirs:
Reference is made to that certain Credit Agreement, dated as of June 4,
2002 (together with all amendments, if any, from time to time made thereto, the
"Credit Agreement"), among Trinity Industries, Inc., a Delaware corporation (the
"Borrower"), the Lenders party thereto, and JPMorgan Chase Bank, as
Administrative Agent (the "Administrative Agent"). Terms defined in the Credit
Agreement are used herein with the same meanings. This notice constitutes an
Interest Election Request and the Borrower hereby requests the conversion or
continuation of a Borrowing under the Credit Agreement, and in that connection
the Borrower specifies the following information with respect to the Borrowing
to be converted or continued as requested hereby:
(A) Borrowing to which this request applies(1):
(B) Principal amount of Borrowing to be converted/continued(2):
(C) Effective date of election (which is a Business Day):
---------------
(1) Specify existing Type and last day of current Interest Period.
(2) Not less than $10,000,000 or an integral multiple of $2,000,000
D-1
(D) Interest rate basis of resulting Borrowing(3):
(E) Interest Period of resulting Borrowing(4):
Very truly yours,
TRINITY INDUSTRIES, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
---------------
(3) Eurodollar Borrowing or ABR Borrowing.
(4) Which must comply with the definition of "Interest Period" and end not
later than the Revolving Commitment Termination Date or the Term Maturity
Date, as applicable.
D-2
EXHIBIT E
[FORM OF]
COMPLIANCE CERTIFICATE
_____________, 200__
JPMorgan Chase Bank, as Administrative Agent
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 4,
2002 (as amended, restated, supplemented or otherwise modified and in effect
from time to time, the "Credit Agreement"), by and among Trinity Industries,
Inc., a Delaware corporation ("Borrower"), the Lenders named therein, JPMorgan
Chase Bank, as Administrative Agent to the Lenders ("Administrative Agent"), and
the other Agents named therein. Capitalized terms used herein without definition
and which are defined in the Credit Agreement shall have the respective meanings
assigned to such terms in the Credit Agreement.
Pursuant to Section 6.01(c) of the Credit Agreement, the undersigned
Financial Officer of Borrower hereby certifies to Administrative Agent as
follows: (a) the information furnished in the calculations attached hereto was
true and correct as of the last day of the Fiscal [Year] [Quarter] ended
_____________; (b) as of the date of this Compliance Certificate, there exists
no Default or Event of Default or condition which would, with either or both the
giving of notice or the lapse of time, result in a Default of an Event of
Default; and (c) the financial statements delivered herewith were prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods.
IN WITNESS WHEREOF, the undersigned officer has executed this
Compliance Certificate as of the date first written above.
TRINITY INDUSTRIES, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
E-1
COMPLIANCE CERTIFICATE WORKSHEET
1. MINIMUM INTEREST COVERAGE RATIO - SECTION 7.09(a)
(a) consolidated net income $____________
(b) to the extent deducted in the calculation of $____________
consolidated net income, Interest Expense
(c) to the extent deducted in the calculation of $____________
consolidated net income, depreciation and
amortization
(d) to the extent deducted in the calculation of $____________
consolidated net income, income and franchise
tax expenses
(e) to the extent deducted in the calculation of $____________
consolidated net income, and with respect to the
Rolling Period ended December 31, 2001 only, non-cash
and cash charges (not to exceed $123,000,000)
(f) to the extent deducted in the calculation of $____________
consolidated net income, non-recurring, non-cash gains
or losses and/or extraordinary gains or losses,
including, but not limited to, gains or losses on the
disposition of assets (other than in connection with
the sale of rail cars from the lease fleet in the
ordinary course of business)
(g) EBITDA (the sum of items (a), (b), (c), (d) and (e) $____________
above, minus item (f) above)
(h) EBITDA derived from the assets pledged to the TILC $____________
Conduit Indebtedness
(i) Capital Expenditures (Non-Leasing Company) $____________
(j) cash interest payments (excluding such payments made $____________
with respect to the TILC Conduit Indebtedness)
(k) Interest Coverage Ratio (item (g) above less items (h) _____to 1.00
and (i) above divided by item (j) above)
(l) Minimum Interest Coverage Ratio (from section 7.09(a)) _____to 1.00
2. MAXIMUM LEVERAGE RATIO - SECTION 7.09(b)
(a) Indebtedness (other than the TILC Conduit Indebtedness) $____________
E-2
(b) LC Exposure $____________
(c) Total Debt (item (a) above minus item (b) above) $____________
(d) EBITDA (from item 1(g) above) less item 1(h) above $____________
(e) Leverage Ratio (item (c) above divided by item (d) _____to 1.00
above)
(f) Maximum Leverage Ratio (from section 7.09(b)) _____to 1.00
3. MINIMUM NET WORTH - SECTION 7.09(c)
(a) Amount from Section 7.09(c)(i) of the Credit Agreement $ 800,000,000
(b) cumulative consolidated net income $____________
(c) 50% of item (b) above $____________
(d) 100% of net cash proceeds from the issuance of Equity $____________
(e) Consolidated Net Worth $____________
(f) Minimum Consolidated Net Worth (the sum of items (a), $____________
(c) and (d) above)
4. MINIMUM ASSET COVERAGE RATIO - SECTION 7.09(d)
(a) Book Value of accounts receivable (net of applicable $____________
reserves)
(b) Book Value of inventory (net of applicable reserves) $____________
(c) Book Value of property, plant and equipment (net) $____________
(d) Asset Value (the sum of items (a), (b) and (c) above) $____________
(e) Aggregate Credit Exposure $____________
(f) Existing LC Exposure $____________
(g) Asset Coverage Ratio (item (d) above divided by the sum _____to 1.00
of items (e) and (f) above)
(h) Minimum Asset Coverage Ratio 2.00 to 1.00
5. CAPITAL EXPENDITURES - SECTION 7.11
(a) Capital Expenditures (Leasing Company) $____________
E-3
(b) Maximum Capital Expenditures (Leasing Company) per $ 150,000,000
Fiscal Year (from section 7.11)
E-4
EXHIBIT F
[FORM OF]
REVOLVING CREDIT NOTE
$_______________ ___________, 200_
FOR VALUE RECEIVED, the undersigned, TRINITY INDUSTRIES, INC., a
Delaware corporation (the "Borrower"), promises to pay to the order of
____________________________ (the "Lender") on the Revolving Commitment
Termination Date the principal sum of ___________ MILLION AND NO/100 DOLLARS
($________) or, if less, the aggregate unpaid principal amount of all Revolving
Loans made by the Lender pursuant to that certain Credit Agreement, dated as of
June 4, 2002 (together will all amendments and other modifications, if any, from
time to time thereafter made thereto, the "Credit Agreement"), among the
Borrower, the Lenders party thereto (including the Lender), Dresdner Bank AG,
New York and Grand Cayman Branches, and The Royal Bank of Scotland plc, as
Syndication Agents, and JPMorgan Chase Bank, as Administrative Agent (the
"Administrative Agent").
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Revolving Credit Note is one of the Revolving Credit Notes
referred to in, and evidences Indebtedness incurred under, the Credit Agreement,
to which reference is made for a description of the security for this Revolving
Credit Note and for a statement of the terms and conditions on which the
Borrower is permitted and required to make prepayments and repayments of
principal of the Indebtedness evidenced by this Revolving Credit Note and on
which such Indebtedness may be declared to be immediately due and payable.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
TRINITY INDUSTRIES, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
F-1
REVOLVING LOANS AND PRINCIPAL PAYMENTS
Interest Amount of Unpaid
Amount of Period (if Principal Principal Notation
Date Loan Made applicable) Repaid Balance Total Made By
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F-2
EXHIBIT G
[FORM OF]
TERM NOTE
$_________________ ___________, 200_
FOR VALUE RECEIVED, the undersigned, TRINITY INDUSTRIES, INC., a
Delaware corporation (the "Borrower"), promises to pay to the order of
____________________________ (the "Lender") on the Term Maturity Date the
principal sum of ______________ MILLION AND NO/100 DOLLARS ($______________) or,
if less, the aggregate unpaid principal amount of all Term Loans made by the
Lender pursuant to that certain Credit Agreement, dated as of June 4, 2002
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among the Borrower, the
Lenders party thereto (including the Lender), Dresdner Bank AG, New York and
Grand Cayman Branches, and The Royal Bank of Scotland plc, as Syndication
Agents, and JPMorgan Chase Bank, as Administrative Agent (the "Administrative
Agent").
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Term Note is one of the Term Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Term Note and for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Term Note and on which such Indebtedness may be declared to be immediately due
and payable. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS TERM NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF TEXAS.
TRINITY INDUSTRIES, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
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TERM LOANS AND PRINCIPAL PAYMENTS
Interest Amount of Unpaid
Amount of Period (if Principal Principal Notation
Date Loan Made applicable) Repaid Balance Total Made By
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EXHIBIT H
[FORM OF]
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") dated as of June 4, 2002, is
by and among TRINITY INDUSTRIES, INC., a Delaware corporation (the "Borrower")
and the undersigned subsidiaries of the Borrower and any subsidiary who
hereafter becomes a party hereto (each, including the Borrower, a "Debtor" and
collectively the "Debtors") and JPMORGAN CHASE BANK, as collateral agent for
certain parties under the hereafter defined Intercreditor Agreement (the
"Agent").
R E C I T A L S:
The Debtors, the Agent and certain other parties have entered into that
certain Intercreditor Agreement dated as of June 4, 2002 (as the same may be
amended, restated or otherwise modified from time to time, the "Intercreditor
Agreement"). This Agreement is executed pursuant to the terms of the
Intercreditor Agreement and as required by the terms of the Transaction
Documents (as such term is defined in the Intercreditor Agreement).
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in fulfillment of the requirements of the Transaction
Documents, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following terms
have the following meanings:
"Collateral" has the meaning specified in Section 2.01 of this
Agreement.
"Obligations" has the meaning ascribed to such term in the
Intercreditor Agreement; provided that with respect to each Debtor, the
obligations secured hereby shall be limited, with respect to each Debtor,
to an aggregate amount equal to the largest amount that would not render
such Debtor's obligations hereunder and under all other Transaction
Documents subject to avoidance under Section 544 or 548 of the United
States Bankruptcy Code or under any applicable state law relating to
fraudulent transfers or conveyances.
"Subsidiary Joinder Agreement" means a Subsidiary Joinder Agreement in
substantially the form of Exhibit A hereto.
"UCC" means the Uniform Commercial Code as in effect in the State of
Texas from time to time.
Section 1.01 Other Definitional Provisions. Terms used herein that are
defined in the Intercreditor Agreement and are not otherwise defined herein
shall have the meanings therefor specified in the Intercreditor Agreement.
References to "Sections," "subsections," "Exhibits" and "Schedules" shall be to
Sections, subsections, Exhibits and Schedules, respectively, of this Agreement
unless otherwise specifically provided. All definitions contained in this
Agreement are equally applicable to the singular and plural forms of the terms
defined. All references to statutes and regulations shall include
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any amendments of the same and any successor statutes and regulations.
References to particular sections of the UCC should be read to refer also to
parallel sections of the Uniform Commercial Code as enacted in each state or
other jurisdiction where any portion of the Collateral is or may be located.
Terms used herein, which are defined in the UCC, unless otherwise defined herein
or in the Intercreditor Agreement, shall have the meanings determined in
accordance with the UCC.
ARTICLE II
SECURITY INTEREST
Section 2.01 Security Interest. As collateral security for the prompt
payment and performance in full when due of the Obligations (whether at stated
maturity, by acceleration or otherwise), each Debtor pledges and assigns to the
Agent, and grants to the Agent a continuing lien on and security interest in,
all of the Debtor's right, title and interest in and to the following, whether
now owned or hereafter arising or acquired and wherever located (collectively
with respect to any Debtor or all Debtors, as the context requires, the
"Collateral"):
(a) all accounts, and all documents, chattel paper, instruments,
general intangibles and all books and records pertaining to or otherwise related
to, all accounts receivable, and all products and proceeds thereof; and
(b) all inventory and all accessions thereto and all products and
proceeds thereof.
Section 2.02 Debtor Remains Liable. Notwithstanding anything to the
contrary contained herein, (a) each Debtor shall remain liable under the
documentation included in the Collateral to the extent set forth therein to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by the Agent of any of
its rights or remedies hereunder shall not release any Debtor from any of its
duties or obligations under such documentation, (c) the Agent shall not have any
obligation under any of such documentation included in the Collateral by reason
of this Agreement, and (d) the Agent shall not be obligated to perform any of
the obligations of any Debtor thereunder or to take any action to collect or
enforce any claim for payment assigned hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
As of the date of this Agreement, each Debtor represents and warrants
to the Agent and the Creditors that:
Section 3.01 Location of Inventory; Third Parties in Possession. All of
its inventory is located at the places specified in Schedule 3.01 for such
Debtor. Schedule 3.01 correctly identifies the landlords or mortgagees, if any,
of each of its locations identified in Schedule 3.01. Except for the Persons
identified on Schedule 3.01 who hold Collateral in the capacity designated on
Schedule 3.01, no Person other than the Debtors and the Agent has possession of
any of the Collateral. None of its Collateral has been located in any location
within the past four months other than as set forth on Schedule 3.01 for such
Debtor.
Section 3.02 Office Locations; Fictitious Names; Tax I.D. Number. Its
principal place of business, chief executive office and jurisdiction of
organization are located at the place or places identified for it on Schedule
3.01. Within the last four months it has not had any other chief place of
business, chief executive office, or jurisdiction of organization except as
disclosed on Schedule 3.01.
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Schedule 3.01 also sets forth all other places where it keeps its books and
records and all other locations where it has a place of business. It does not do
business and has not done business during the past five years under any
trade-name or fictitious business name except as disclosed on Schedule 3.02.
Schedule 3.02 sets forth an accurate list of all names of all of its predecessor
companies including the names of any entities it acquired (by stock purchase,
asset purchase, merger or otherwise), the chief place of business, chief
executive office and jurisdiction of organization of each such predecessor
company and each jurisdiction in which any collateral purchased from such
companies was located at the time of purchase. For purposes of the foregoing, a
"predecessor company" shall mean, with respect to a Debtor, any Person whose
assets or equity interests are acquired by such Debtor or who was merged with or
into such Debtor within the last four months prior to the date hereof. Its
United States Federal Income Tax I.D. Number and organizational identification
number are set forth on Schedule 3.02.
Section 3.03 Delivery of Collateral. Each Debtor has delivered to the Agent
all Collateral the possession of which is necessary to perfect the security
interest of the Agent therein.
Section 3.04 Organization; Powers. Each Debtor is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a material adverse
effect on such Debtor or its Collateral, is qualified to do business in, and is
in good standing in, every jurisdiction where such qualification is required.
Section 3.05 Authorization; Enforceability. This Agreement and the other
Transaction Documents to be entered into by each Debtor are within their
respective corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by each Debtor and constitutes, and each other
Transaction Document to which any Debtor is to be a party, when executed and
delivered, will constitute, a legal, valid and binding obligation of such Debtor
(as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
Section 3.06 Governmental Approvals; No Conflicts. The execution,
performance and delivery of the Transaction Documents by each Debtor (a) do not
require any consent or approval of, registration or filing with (other than the
inclusion of this Agreement as an exhibit to routine filings under the
Securities Exchange Act of 1934 and filings required to perfect the security
interests herein granted required by the Uniform Commercial Code), or any other
action by, any governmental authority, (b) will not violate any applicable law
or regulation or the charter, by-laws or other organizational documents of any
Debtor or any order of any governmental authority, (c) will not violate in any
material respect or result in a material default under any indenture, material
agreement or other instrument binding upon any Debtor or its assets, or give
rise to a right thereunder to require any payment to be made by any Debtor, and
(d) will not result in the creation or imposition of any security interest or
lien on any asset of any Debtor except as specifically contemplated hereby.
ARTICLE IV
COVENANTS
Each Debtor covenants and agrees with the Agent that until the
Obligations are paid an performed in full and the Intercreditor Agreement
terminates:
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Section 4.01 Accounts. It shall, in accordance with its customary business
practices, endeavor to collect or cause to be collected from each account debtor
under its accounts, as and when due, any and all amounts owing under such
accounts. Without the prior written consent of the Agent, it shall not, except
in the ordinary course of business when no Event of Default exists, (a) grant
any extension of time for any payment with respect to any of its accounts beyond
120 days after such payment's due date, (b) compromise, compound, or settle any
of its accounts for less than the full amount thereof, (c) release, in whole or
in part, any Person liable for payment of any of its accounts, (d) allow any
credit or discount for payment with respect to any of its accounts other than
trade or other customary discounts granted in the ordinary course of business,
or (e) release any lien, security interest or guaranty securing any of its
accounts unless the account has been paid.
Section 4.02 Further Assurances; Exceptions to Perfection. At any time and
from time to time, upon the request of the Agent, and at its sole expense, it
shall, promptly execute and deliver all such further agreements, instruments and
documentation and take such further action as the Agent may reasonably deem
necessary or appropriate to preserve and perfect its security interest in the
Collateral and carry out the provisions and purposes of this Agreement or to
enable the Agent to exercise and enforce its rights and remedies hereunder with
respect to any of the Collateral. Without limiting the generality of the
foregoing, it shall upon reasonable request by the Agent, (i) execute and
deliver to the Agent such financing statements as the Agent may from time to
time require (each Debtor also hereby authorizes the Agent to file such
financing statements without Debtor's signature naming it as debtor, the Agent
as secured party and describing the Collateral, in each case as the Agent may
deem appropriate); (ii) take such action as the Agent may request to permit the
Agent to have control over any deposit account; (iii) deliver to the Agent all
Collateral the possession of which is necessary to perfect the security interest
therein, duly endorsed and/or accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the Agent; and
(iv) execute and deliver to the Agent such other agreements, instruments and
documentation as the Agent may reasonably require to perfect and maintain the
validity, effectiveness and priority of the security interests intended to be
created by this Agreement; except that, prior to the occurrence of a Potential
Default:
(a) the Debtors may retain and utilize in the ordinary course of
business proceeds of accounts;
(b) the Debtors may retain and utilize in the ordinary course of
business any letters of credit received in the ordinary course of business;
(c) the Debtors may retain any documents received and further
negotiated in the ordinary course of business; and
(d) no Debtor shall be required to grant the Agent control over any
deposit, commodity or security account.
If a Potential Default occurs and the Agent requests, then the Debtors shall
take such action as the Agent may reasonably request to perfect and protect the
security interests of the Agent in all of the Collateral, including without
limitation, the following actions: (A) the delivery to the Agent of all
Collateral the possession of which is necessary to perfect the security interest
of the Agent therein; (B) instructing all account debtors to make payment on
accounts and any other Collateral to a post office box or boxes or to a deposit
account under the control and in the name of the Agent and (C) any other of the
actions described in Section 4.02(i) through Section 4.02(iv) above.
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Section 4.03 Third Parties in Possession of Collateral. The Debtors shall
not permit any third Person (including any warehouseman, bailee, agent,
consignee or processor) to hold any Collateral, unless it shall: (a) notify such
third Person of the security interests created hereby; (b) instruct such Person
to hold all such Collateral for the Agent's account subject to the Agent's
instructions; and (c) subject to Section 4.02, take all other actions the Agent
reasonably deems necessary to perfect and protect its and the Debtors' interests
in such Collateral pursuant to the requirements of the Uniform Commercial Code
of the applicable jurisdiction where the warehouseman, bailee, consignee, agent,
processor or other third Person is located (including the filing of a financing
statement in the proper jurisdiction naming the applicable third Person as
debtor and it as secured party and notifying the third Person' secured lenders
of its interest in such Collateral before the third Person receives possession
of the Collateral in question).
Section 4.04 Corporate Changes. It shall not change its name, identity,
jurisdiction of organization, or corporate structure in any manner that might
make any financing statement filed in connection with this Agreement seriously
misleading or its United States Federal Tax I.D. Number or organizational
identification number unless it shall have given the Agent thirty (30) days
prior written notice thereof and shall have taken all action reasonably deemed
necessary or desirable by the Agent to protect its security interest in the
Collateral with the perfection and priority thereof required by the Transaction
Documents and this Agreement. It shall not change its principal place of
business, chief executive office or the place where it keeps its books and
records unless it shall have given the Agent thirty (30) days prior written
notice thereof and shall have taken all action deemed necessary or desirable by
the Agent to cause its security interest in the Collateral to be perfected with
the priority required by the Transaction Documents and this Agreement.
Section 4.05 Inventory. It shall keep its inventory at (or in transit to)
any of its locations specified on Schedule 3.01 hereto or at such other places
within the United States of America as provided in a written notice to the
Agent.
Section 4.06 Warehouse Receipts Non-Negotiable. It agrees that if any
warehouse receipt or receipt in the nature of a warehouse receipt is issued in
respect of any portion of the Collateral, such warehouse receipt or receipt in
the nature thereof shall not be "negotiable" (as such term is used in Section
7.104 of the UCC) unless such warehouse receipt or receipt in the nature thereof
is delivered to the Agent.
ARTICLE V
RIGHTS OF THE AGENT
Section 5.01 POWER OF ATTORNEY. EACH DEBTOR HEREBY IRREVOCABLY CONSTITUTES
AND APPOINTS THE AGENT AND ANY OFFICER OR AGENT THEREOF, WITH FULL POWER OF
SUBSTITUTION, AS ITS TRUE AND LAWFUL ATTORNEY-IN-FACT WITH FULL IRREVOCABLE
POWER AND AUTHORITY IN THE NAME OF SUCH DEBTOR OR IN ITS OWN NAME, TO TAKE, WHEN
A POTENTIAL DEFAULT EXISTS, ANY AND ALL ACTIONS AND TO EXECUTE ANY AND ALL
DOCUMENTS AND INSTRUMENTS WHICH THE AGENT AT ANY TIME AND FROM TIME TO TIME
DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IT HEREBY GIVES THE AGENT THE
POWER AND RIGHT ON ITS BEHALF AND IN ITS OWN NAME TO DO ANY OF THE FOLLOWING
WHEN A POTENTIAL DEFAULT EXISTS, WITH NOTICE TO THE BORROWER BUT WITHOUT THE
CONSENT OF ANY DEBTOR:
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(a) to demand, xxx for, collect or receive, in the name of it or in
its own name, any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral and, in connection therewith,
endorse checks, notes, drafts, acceptances, money orders, documents of title or
any other instruments for the payment of money under the Collateral or any
policy of insurance;
(b) to pay or discharge taxes, liens or other encumbrances levied or
placed on or threatened against the Collateral;
(c) to notify post office authorities to change the address for
delivery of mail of the Debtor to an address designated by the Agent and to
receive, open, and dispose of mail addressed to the Debtor;
(d) (1) to direct account debtors and any other parties liable for
any payment under any of the Collateral to make payment of any and all monies
due and to become due thereunder directly to the Agent or as the Agent shall
direct (each Debtor agrees that if any proceeds of any Collateral (including
payments made in respect of accounts) shall be received by it while a Potential
Default exists, it shall promptly deliver such proceeds to the Agent with any
necessary endorsements, and until such proceeds are delivered to the Agent, such
proceeds shall be held in trust by it for the benefit of the Agent and shall not
be commingled with any other funds or property of it); (2) to receive payment of
and receipt for any and all monies, claims and other amounts due and to become
due at any time in respect of or arising out of any Collateral; (3) to sign and
endorse any invoices, freight or express bills, bills of lading, storage or
warehouse receipts, drafts against debtors, assignments, proxies, stock powers,
verifications and notices in connection with accounts and other documents
relating to the Collateral; (4) to commence and prosecute any suit, action or
proceeding at law or in equity in any court of competent jurisdiction to collect
the Collateral or any part thereof and to enforce any other right in respect of
any Collateral; (5) to defend any suit, action or proceeding brought against it
with respect to any Collateral; (6) to settle, compromise or adjust any suit,
action or proceeding described above and, in connection therewith, to give such
discharges or releases as the Agent may deem appropriate; (7) to exchange any of
the Collateral for other property upon any merger, consolidation,
reorganization, recapitalization or other readjustment of the issuer thereof
and, in connection therewith, deposit any of the Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
as the Agent may determine; (8) to add or release any guarantor, endorser,
surety or other party to any of the Collateral; (9) to renew, extend or
otherwise change the terms and conditions of any of the Collateral; (10) to
grant or issue any exclusive or nonexclusive license under or with respect to
any of the intellectual property (subject to the rights of third parties under
pre-existing licenses); (11) to endorse its name on all applications and other
documentation necessary or desirable in order for the Agent to use any
intellectual property; (12) to make, settle, compromise or adjust any claims
under or pertaining to any of the Collateral (including claims under any policy
of insurance); and (13) to sell, transfer, pledge, convey, make any agreement
with respect to or otherwise deal with any of the Collateral as fully and
completely as though the Agent were the absolute owner thereof for all purposes,
and to do, at the Agent's option and the Debtors' expense, at any time, or from
time to time, all acts and things which the Agent deems necessary to protect,
preserve, maintain, or realize upon the Collateral and the Agent's security
interest therein.
THIS POWER OF ATTORNEY IS A POWER COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE UNTIL TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.11.
The Agent shall be under no duty to exercise or withhold the exercise of any of
the rights, powers, privileges and options expressly or implicitly granted to
the Agent in this Agreement, and shall not be liable for any failure to do so or
any delay in doing so. Neither the Agent nor any Person
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designated by the Agent shall be liable for any act or omission or for any error
of judgment or any mistake of fact or law, except any of the same resulting from
its or their gross negligence or willful misconduct. This power of attorney is
conferred on the Agent solely to protect, preserve, maintain and realize upon
its security interest in the Collateral. The Agent shall not be responsible for
any decline in the value of the Collateral and shall not be required to take any
steps to preserve rights against prior parties or to protect, preserve or
maintain any lien or security interest given to secure the Collateral.
Section 5.02 Assignment by the Agent. The Agent and each Creditor may at
any time assign or otherwise transfer all or any portion of their rights and
obligations under this Agreement and the other Transaction Documents (including,
without limitation, the Obligations) to any other Person, to the extent
permitted by, and upon the conditions contained in, the Transaction Documents,
and such Person shall thereupon become vested with all the benefits thereof
granted to the Agent and the Creditors, respectively, herein or otherwise.
Section 5.03 Possession; Reasonable Care. The Agent may, from time to time,
in its sole discretion, appoint one or more agents to hold physical custody, for
the account of the Agent, of any or all of the Collateral that the Agent has a
right to possess. The Agent shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which the Agent
accords its own property, it being understood that the Agent shall not have any
responsibility for taking any necessary steps to preserve rights against any
parties with respect to any Collateral.
ARTICLE VI
DEFAULT
Section 6.01 Rights and Remedies. If an Event of Default exists, the Agent
shall have the following rights and remedies:
(a) In addition to all other rights and remedies granted to the Agent
in this Agreement or in any other Transaction Document or by applicable law, the
Agent shall have all of the rights and remedies of a secured party under the UCC
(whether or not the UCC applies to the affected Collateral). Without limiting
the generality of the foregoing, the Agent may (1) without demand or notice to
any Debtor, collect, receive or take possession of the Collateral or any part
thereof and for that purpose the Agent may enter upon any premises on which the
Collateral is located and remove the Collateral therefrom or render it
inoperable, and/or (2) sell, lease or otherwise dispose of the Collateral, or
any part thereof, in one or more parcels at public or private sale or sales, at
the Agent's offices or elsewhere, for cash, on credit or for future delivery,
and upon such other terms as the Agent may deem commercially reasonable or
otherwise as may be permitted by law. The Agent shall have the right at any
public sale or sales, and, to the extent permitted by applicable law, at any
private sale or sales, to bid (which bid may be, in whole or in part, in the
form of cancellation of indebtedness) and become a purchaser of the Collateral
or any part thereof free of any right or equity of redemption on the part of any
Debtor, which right or equity of redemption is hereby expressly waived and
released by each Debtor. Upon the request of the Agent, each Debtor shall
assemble its Collateral and make it available to the Agent at any place
designated by the Agent that is reasonably convenient to it and the Agent. Each
Debtor agrees that the Agent shall not be obligated to give more than ten (10)
days prior written notice of the time and place of any public sale or of the
time after which any private sale may take place and that such notice shall
constitute reasonable notice of such matters. The Agent shall not be obligated
to make any sale of Collateral if it shall determine not to do so, regardless of
the fact that notice of sale of Collateral may have been given. The Agent may,
without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
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fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. Each Debtor shall be liable for
all reasonable expenses of retaking, holding, preparing for sale or the like,
and all reasonable attorneys' fees, legal expenses and other costs and expenses
incurred by the Agent in connection with the collection of the Obligations and
the enforcement of the Agent's rights under this Agreement. Each Debtor shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral applied to the Obligations are insufficient to pay
the Obligations in full to the extent provided in the Transaction Documents. The
Agent shall apply the proceeds of Collateral against the Obligations as provided
in the Intercreditor Agreement. Each Debtor waives all rights of marshalling,
valuation and appraisal in respect of the Collateral. Any cash held by the Agent
as Collateral and all cash proceeds received by the Agent in respect of any sale
of, collection from or other realization upon all or any part of the Collateral
may, in the discretion of the Agent, be held by the Agent as collateral for, and
then or at any time thereafter applied in whole or in part by the Agent against,
the Obligations in the order permitted by the Intercreditor Agreement. The Agent
shall have no obligation to invest or otherwise pay interest on any amounts held
by it in connection with or pursuant to this Agreement or the Intercreditor
Agreement.
(b) The Agent may cause any or all of the Collateral held by it to be
transferred into the name of the Agent or the name or names of the Agent's
nominee or nominees.
(c) The Agent may exercise any and all of the rights and remedies of
any Debtor under or in respect of the Collateral, including, without limitation,
any and all rights of it to demand or otherwise require payment of any amount
under, or performance of any provision of, any of the Collateral.
(d) The Agent may collect or receive all money or property at any
time payable or receivable on account of or in exchange for any of the
Collateral, but shall be under no obligation to do so.
(e) On any sale of the Collateral, the Agent is hereby authorized to
comply with any limitation or restriction with which compliance is necessary, in
the view of the Agent's counsel, in order to avoid any violation of applicable
law or in order to obtain any required approval of the purchaser or purchasers
by any applicable governmental authority.
(f) For purposes of enabling the Agent to exercise its rights and
remedies under this Section 6.01 and enabling the Agent and its successors and
assigns to enjoy the full benefits of the Collateral in each case as the Agent
shall be entitled to exercise its rights and remedies under this Section 6.01,
each Debtor hereby grants to the Agent an irrevocable, nonexclusive license
(exercisable without payment of royalty or other compensation to it) to, if an
Event of Default exists, use, assign, license or sublicense any of its
intellectual property, including in such license reasonable access to all media
in which any of the licensed items may be recorded or stored and all computer
programs used for the completion or printout thereof and further including in
such license such rights of quality control and inspection as are reasonably
necessary to prevent the trademarks included in such license from claims of
invalidation. This license shall also inure to the benefit of all successors,
assigns and transferees of the Agent.
ARTICLE VII
MISCELLANEOUS
Section 7.01 No Waiver; Cumulative Remedies. No failure on the part of the
Agent to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or
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privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege under this Agreement
preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege. The rights and remedies provided for in this
Agreement are cumulative and not exclusive of any rights and remedies provided
by law.
Section 7.02 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of each Debtor and the Agent and respective successors
and assigns, except that no Debtor may assign any of its rights or obligations
under this Agreement without the prior written consent of the Creditors.
Section 7.03 AMENDMENT; ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS
AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER
HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO. Except
as contemplated by the execution and delivery of a Subsidiary Joinder Agreement
(which only needs to be signed by the party thereto), the provisions of this
Agreement may be amended or waived only by an instrument in writing signed by
the parties hereto and the number of Creditors required by the Intercreditor
Agreement.
Section 7.04 Notices. All notices and other communications provided for in
this Agreement shall be given or made in accordance with the Intercreditor
Agreement.
Section 7.05 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas and applicable laws
of the United States of America.
Section 7.06 Headings. The headings, captions, and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 7.07 Survival of Representations and Warranties. All
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by the Agent shall affect the representations
and warranties or the right of the Agent or any Creditor to rely upon them.
Section 7.08 Counterparts. This Agreement may be executed in any number of
counterparts and on facsimile counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
Section 7.09 Waiver of Bond. In the event the Agent seeks to take
possession of any or all of the Collateral by judicial process, each Debtor
hereby irrevocably waives any bonds and any surety or security relating thereto
that may be required by applicable law as an incident to such possession, and
waives any demand for possession prior to the commencement of any such suit or
action.
Section 7.10 Severability. Any provision of this Agreement which is
determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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Section 7.11 Termination. If all of the Obligations shall have been paid
and performed in full, all commitments of the Agent and the Creditors under the
Transaction Documents shall have expired or terminated, the Agent shall, upon
the written request of a Debtor, execute and deliver to the Debtor a proper
instrument or instruments acknowledging the release and termination of the
security interests created by this Agreement, and shall duly assign and deliver
to each Debtor (without recourse and without any representation or warranty)
such of the Collateral as may be in the possession of the Agent and has not
previously been sold or otherwise applied pursuant to this Agreement.
Section 7.12 Obligations Absolute. All rights and remedies of the Agent
hereunder, and all obligations of each Debtor hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any of the Transaction
Documents;
(b) any change in the time, manner, or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from any of the Transaction Documents;
(c) any exchange, release, or non-perfection of any Collateral, or
any release or amendment or waiver of or consent to any departure from any
guarantee, for all or any of the Obligations; or
(d) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, a third party pledgor.
[Signature Page to Follow]
H-10
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
DEBTORS:
-------
TRINITY INDUSTRIES, INC.
TRANSIT MIX CONCRETE & MATERIALS COMPANY
TRINITY INDUSTRIES LEASING COMPANY
TRINITY MARINE PRODUCTS, INC.
TRINITY RAIL GROUP, LLC
TRINITY TANK CAR, INC.
TRINITY RAIL COMPONENTS & REPAIR, INC.
THRALL TRINITY FREIGHT CAR, INC.
By:
------------------------------------
-----------------------------------,
Authorized Officer for all Debtors
H-11
AGENT:
JPMORGAN CHASE BANK, as the Collateral
Agent under the Intercreditor Agreement
By:
------------------------------------
Xxxxxxx X. Xxxxxx,
Vice President
H-12
Index to Schedules and Exhibits
to
Security Agreement
Schedules
---------
Schedule 3.01 - Locations
Schedule 3.02 - Trade and Other Names, Tax ID Number
Exhibits
--------
Exhibit A - Subsidiary Joinder Agreement
H-13
SCHEDULE 3.01
TO
TRINITY INDUSTRIES, INC.
SECURITY AGREEMENT
Locations
1. TRINITY INDUSTRIES, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of
Location Landlord or Mortgagee of Premises
-------- ---------------------------------
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 2098029
IV. Other Locations:
Alabama
Arizona
Arkansas
Florida
Georgia
Illinois
Indiana
Kentucky
Louisiana
H - Schedule 3.01 - Page 1
Maryland
Mississippi
North Carolina
Ohio
Oklahoma
Pennsylvania
Tennessee
Texas
A. Other Leased or Owned Locations:
Name and Address of Landlord or
Xxxxxx Xxxxxxx Xxxx XX Xxx Code County Lease/Own Mortgagee of Premises (if any)
-------------- ---- -- -------- ------ --------- -------------------------------
H - Schedule 3.01 - Page 2
V. Third Parties in Possession: _______________
2. TRANSIT MIX CONCRETE & MATERIALS COMPANY
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of
Location Landlord or Mortgagee of Premises
-------- ---------------------------------
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 2274660
IV. Other Locations:
Colorado
Louisiana
Texas
V. Third Parties in Possession: ____________
3. TRINITY INDUSTRIES LEASING COMPANY
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of
Location Landlord or Mortgagee of Premises
-------- ---------------------------------
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 2147288
H - Schedule 3.01 - Page 3
IV. Other Locations:
Illinois
Texas
V. Third Parties in Possession: _____________________
4. TRINITY MARINE PRODUCTS, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of
Location Landlord or Mortgagee of Premises
-------- ---------------------------------
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 2602621
IV. Other Locations:
Kentucky
Louisiana
Missouri
Tennessee
V. Third Parties in Possession: _______________
H - Schedule 3.01 - Page 4
5. TRINITY RAIL GROUP, LLC
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of
Location Landlord or Mortgagee of Premises
-------- ---------------------------------
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 3474715
IV. Other Locations: ______________
V. Third Parties in Possession: _______________
6. TRINITY TANK CAR, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of
Location Landlord or Mortgagee of Premises
-------- ---------------------------------
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 3450692
IV. Other Locations: _______________
V. Third Parties in Possession: _______________
H - Schedule 3.01 - Page 5
7. TRINITY RAIL COMPONENTS & REPAIR, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of
Location Landlord or Mortgagee of Premises
-------- ---------------------------------
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 3450691
IV. Other Locations: _______________
V. Third Parties in Possession: _______________
8. THRALL TRINITY FREIGHT CAR, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of
Location Landlord or Mortgagee of Premises
-------- ---------------------------------
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 3450694
IV. Other Locations: _______________
V. Third Parties in Possession: _______________
H - Schedule 3.01 - Page 6
SCHEDULE 3.02
TO
TRINITY INDUSTRIES, INC.
SECURITY AGREEMENT
Trade And Other Names; Tax I.D. Number
1. TRINITY INDUSTRIES, INC.
I. Trade and Other Names: Texas New Industries, Inc.
Trinity Industries Manufacturing and
Fabrication, Inc.
II. United States Federal Income Tax I.D. Number: 00-0000000
III. Predecessor Companies: __________________
Company Name Jurisdiction of Organization Chief Executive Office Other Locations
------------ ---------------------------- ---------------------- ---------------
2. TRANSIT MIX CONCRETE & MATERIALS COMPANY
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
H - Schedule 3.02 - Page 1
3. TRINITY INDUSTRIES LEASING COMPANY
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
4. TRINITY MARINE PRODUCTS, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
5. TRINITY RAIL GROUP, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
H - Schedule 3.02 - Page 2
6. TRINITY TANK CAR, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
7. TRINITY RAIL COMPONENTS & REPAIR, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
8. THRALL TRINITY FREIGHT CAR, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
H - Schedule 3.02 - Page 3
EXHIBIT A
TO
TRINITY INDUSTRIES, INC.
SECURITY AGREEMENT
SUBSIDIARY JOINDER AGREEMENT
This SUBSIDIARY JOINDER AGREEMENT (this "Agreement") dated as of
____________________, 200_ is executed by the undersigned (the "Debtor") for the
benefit of JPMORGAN CHASE BANK in its capacity as agent for the Creditors a
party to the hereafter identified Intercreditor Agreement (in such capacity
herein, the "Agent") and for the benefit of such Creditors in connection with
that certain Intercreditor Agreement dated as of June 4, 2002, among the Agent,
TRINITY INDUSTRIES, INC. (the "Borrower"), certain of the Borrower's
subsidiaries and the Creditors a party thereto (as modified, the "Intercreditor
Agreement", and capitalized terms not otherwise defined herein being used herein
as defined in the Intercreditor Agreement).
The Debtor is a newly formed or newly acquired Subsidiary and is required
to execute this Agreement pursuant to the Intercreditor Agreement.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Debtor hereby agrees as follows:
1. The Debtor assumes all the obligations of a "Debtor" under the Security
Agreement and agrees that it is a "Debtor" and bound as a "Debtor" under the
terms of the Security Agreement as if it had been an original signatory thereto.
In furtherance of the foregoing, the Debtor hereby assigns, pledges and grants
to Agent a security interest in all of its right, title and interest in and to
Debtor's Collateral (as defined in the Security Agreement) to secure the
Obligations under the terms of the Security Agreement.
2. Schedules 3.01, 3.02 and 3.03 of the Security Agreement are hereby
amended to add the information relating to Debtor set out on Schedules 3.01,
3.02 and 3.03 hereof. The Debtor hereby confirms that the representations and
warranties set forth in Article III of the Security Agreement applicable to it
and its Collateral are true and correct after giving effect to such amendment to
the Schedules.
3. In furtherance of its obligations under Section 4.02 of the Security
Agreement but subject to Section 4.02 of the Security Agreement, Debtor agrees
to execute and deliver such UCC financing statements naming the Debtor as
debtor, the Agent as secured party and describing its Collateral and such other
documentation (including intellectual property security agreements) as the Agent
may require to evidence, protect and perfect the security created by the
Security Agreement as modified hereby.
4. This Agreement shall be deemed to be part of, and a modification to,
the Security Agreement and shall be governed by all the terms and provisions of
the Security Agreement, which terms are incorporated herein by reference, are
ratified and confirmed and shall continue in full force and effect as valid and
binding agreements of Debtor enforceable against Debtor. The Debtor hereby
waives notice of Agent's or any Creditor's acceptance of this Agreement.
H - EXHIBIT A-1
IN WITNESS WHEREOF, the Debtor has executed this Agreement as of the day
and year first written above.
Debtor:
----------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
H - EXHIBIT A-2
EXHIBIT I
[FORM OF]
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made as of June 4, 2002, by
TRINITY INDUSTRIES, INC., a Delaware corporation [Subsidiary] ("Pledgor"), in
favor of JPMORGAN CHASE BANK, as collateral agent (in such capacity, "Secured
Party") for certain parties under the hereafter defined Intercreditor Agreement.
RECITALS:
Pledgor, Secured Party and certain other parties have entered into that
certain Intercreditor Agreement dated as of June 4, 2002 (as the same may be
amended, restated or otherwise modified from time to time, the "Intercreditor
Agreement"). This Agreement is executed pursuant to the terms of the
Intercreditor Agreement and as required by the terms of the Transaction
Documents (as such term is defined in the Intercreditor Agreement).
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in fulfillment of the requirements of the Transaction
Documents, the parties hereto hereby agree as follows:
1. AGREEMENT.
(a) Pledge. Upon the terms hereof, for value received, Pledgor hereby
irrevocably and unconditionally pledges, assigns, hypothecates and transfers to
Secured Party, for the ratable benefit of the Creditors a party to the
Intercreditor Agreement, a first and prior pledge and security interest in (1)
all capital stock, equity and other ownership interests of
______________________________, ___________________________,
____________________________ and ________________________ (collectively, the
"Pledged Equity Issuers") owned beneficially or of record by Pledgor, and
described on Exhibit A attached hereto (together with any certificate or
instrument evidencing such interest) (the foregoing interests being referred to
herein as the "Pledged Equity"), (2) any and all proceeds or other sums arising
from or by virtue of, and all dividends and distributions (cash or otherwise)
payable and/or distributable with respect to, all or any of the Pledged Equity,
and (3) all cash, securities, dividends and other property at any time and from
time to time receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Equity and any other property substituted or
exchanged therefor (all of the foregoing described in clauses (1), (2) and (3)
being collectively referred to herein as the "Collateral"). Unless otherwise
defined in this Agreement, terms used herein shall have the meanings set forth
in the Intercreditor Agreement or the Revolver/Term Agreement (as defined in the
Intercreditor Agreement) as the context shall require. Notwithstanding any
contrary provision in this Agreement, however, the pledge hereunder is limited
to the extent, if any, required so that such pledge is not subject to avoidance
under applicable bankruptcy or other debtor relief laws.
2. OBLIGATIONS. The following obligations (collectively, the
"Obligations") are secured by this Agreement:
(a) All Obligations (as such term is defined in the Intercreditor
Agreement).
(b) Without limiting the foregoing, all costs incurred by Secured
Party to obtain, preserve, perfect and enforce this Agreement, the other
Transaction Documents, and the pledge and
I-1
security interest granted hereby, collect the Obligations, and maintain,
preserve, collect and enforce the Collateral, including, without limitation,
taxes, assessments, attorneys' fees and legal expenses, and expenses of sale.
(c) Interest on the above amounts as agreed to by Pledgor under the
Transaction Documents, including, without limitation, interest, fees and other
charges that would accrue or become owing both prior to and subsequent to and
but for the commencement of any proceeding against or with respect to Pledgor
under any chapter of the Bankruptcy Code of 1978, 11 U.S.C. ss. 101 et seq.
whether or not a claim is allowed for the same in any such proceeding.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties.
(1) Representations and Warranties Concerning Pledgor. Pledgor
represents and warrants that (A) Pledgor is duly organized under the laws
of the state of Delaware; (B) the chief place of business and chief
executive office of Pledgor and the office where Pledgor keeps all of its
records is located at 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000; (C) no
consent of any other Person and no authorization, approval or other action
by, and no notice to or filing with, any Governmental Authority is required
(i) for the pledge by Pledgor of the Collateral pledged by it hereunder,
for the grant by Pledgor of the security interest granted hereby or for the
execution, delivery or performance of this Agreement by Pledgor, (ii) for
the perfection or maintenance of the pledge, assignment and security
interest created hereby (including the first priority nature of such
pledge, assignment and security interest), or (iii) for the exercise by
Secured Party of the rights provided for in this Agreement or in the
Intercreditor Agreement, or the remedies in respect of the Collateral
pursuant to this Agreement or the Intercreditor Agreement; (D) Pledgor
possesses all material licenses and permits, required for its ownership of
the Collateral and the operations of its business; (E) Pledgor is not, nor
will the execution, delivery and performance and compliance with the terms
of this Agreement cause Pledgor to be in violation of any applicable
material law or in default (nor has any event occurred which, with notice
or lapse of time or both, could constitute a default) under any debt or
other contractual obligation of Pledgor; (F) except as disclosed in the
Revolver/Term Agreement, there is no litigation, arbitration or other
proceeding pending or threatened against or affecting Pledgor or its assets
or properties; and (G) Pledgor has full power, authority and legal right to
execute, deliver and perform this Agreement.
(2) Representations and Warranties Concerning the Collateral.
Pledgor represents and warrants that (A) the ownership interests pledged
hereunder are duly authorized, validly issued, fully paid and
non-assessable; (B) Pledgor is the sole legal and beneficial owner of the
Collateral pledged by it and the pledge, assignment and delivery of the
Collateral create a valid first and prior perfected security interest in
the Collateral, and no other security agreement covering the Collateral, or
any part thereof, has been made, and no pledge or security interest, other
than the one herein created, has attached or been perfected in the
Collateral or in any part thereof; and (C) no dispute, right of setoff,
counterclaim or defense exists with respect to any part of the Collateral.
The delivery at any time by Pledgor to Secured Party of Collateral shall
constitute a representation and warranty by Pledgor under this Agreement
that, (i) with respect to such Collateral, and each item thereof, Pledgor
is the sole legal and beneficial owner of, with good title to, the
Collateral, and (ii) the matters warranted in this paragraph are true and
correct.
I-2
(b) Covenants.
(1) Affirmative Covenants. Pledgor covenants and agrees (A)
promptly to deliver to Secured Party all instruments, certificates,
documents or agreements evidencing any of the Collateral; (B) from time to
time promptly to execute and deliver to Secured Party all such other
assignments, certificates, supplemental writings and financing statements,
and do all other acts or things, as Secured Party or any Creditor may
reasonably request in order more fully to evidence and perfect the security
interest and pledge herein created or to effect the purposes of this
Agreement; (C) promptly to furnish Secured Party with any information or
writings which Secured Party or any Creditor may reasonably request
concerning the Collateral; (D) to allow Secured Party or any Creditor to
inspect all records of Pledgor relating to the Collateral, and to make and
take away copies of such records, at Pledgor's expense, at such reasonable
times and as often as may be reasonably requested by Secured Party or any
such Creditor; (E) promptly to notify Secured Party of any change in any
fact or circumstances warranted or represented by Pledgor in this Agreement
or in any other writings furnished by or on behalf of Pledgor to Secured
Party or any Creditor in connection with the Collateral; (F) promptly to
notify Secured Party of any claim, action or proceeding affecting title to
the Collateral, or any part thereof, or the security interest therein, and,
at the request of Secured Party, appear in and defend, at Pledgor's
expense, any such action or proceeding; and (G) promptly to pay to Secured
Party the amount of all costs and attorneys' fees incurred by Secured Party
hereunder or in connection with the enforcement hereof.
(2) Negative Covenants. Except as otherwise provided in the
Revolver/Term Agreement, Pledgor covenants and agrees that Pledgor will not
(A) sell, assign or transfer any of Pledgor's rights in the Collateral; (B)
create any other security interest or pledge in, mortgage or otherwise
encumber the Collateral or any part thereof, or permit the same to be or
become subject to any Lien, attachment, execution, sequestration, other
legal or equitable process, or any encumbrance of any kind or character,
except for Liens permitted by Section 7.02 of the Revolver/Term Agreement;
(C) approve any amendment to the certificate or articles of incorporation,
the bylaws, or other charter documents of any Pledged Equity Issuer (other
than ministerial amendments which would not adversely affect the rights of
Secured Party or the Creditors hereunder).
Notwithstanding anything to the contrary contained herein, in the event of
any conflict between the terms and provisions of this Section 3(b) and the terms
and provisions of Article VI or Article VII of the Revolver/Term Agreement, the
terms and provisions of Article VI and/or Article VII of the Revolver/Term
Agreement shall control.
4. RIGHTS OF SECURED PARTY.
(a) Rights to Dividends, Distributions, and Payments. With respect to
such instruments which are certificates, bonds or other securities, Secured
Party may demand of the obligor issuing the same, and may receive and receipt
for, any and all dividends and other distributions (other than cash dividends)
payable in respect thereof, whether ordinary or extraordinary. Secured Party
shall have the authority, following the occurrence and during the continuance of
an Event of Default and without notice to Pledgor, to have such certificates,
bonds or other securities registered either in Secured Party's name or in the
name of a nominee. If, while this Agreement is in effect, Pledgor shall become
entitled to receive or shall receive any certificate (including, without
limitation, any certificate representing a stock or ownership interest dividend
or a distribution in connection with any reclassification, increase or reduction
of capital, or issued in connection with any reorganization), option
I-3
or rights, whether as an addition to, in substitution of, as a conversion of or
in exchange for any of the Collateral, or otherwise, Pledgor agrees to accept
the same as Secured Party's agent and to hold the same in trust on behalf of and
for the benefit of Secured Party, and to deliver the same forthwith to Secured
Party in the exact form received, with appropriate undated stock powers, duly
executed in blank, to be held by Secured Party, subject to the terms hereof, as
additional collateral security for the Obligations. Until and unless an Event of
Default shall have occurred and be continuing, Pledgor shall be entitled to
receive and utilize all cash dividends, principal, and interest paid in respect
of the Collateral. After the occurrence and during the continuance of an Event
of Default, Secured Party shall be entitled to all cash dividends and to any
sums paid upon or in respect of the Collateral upon the liquidation, dissolution
or reorganization of the issuer thereof which shall be paid to Secured Party to
be held by it as additional collateral security for the Obligations. In case any
distribution shall be made on or in respect of the Collateral pursuant to the
reorganization, liquidation or dissolution of the issuer thereof, the property
so distributed shall be delivered to Secured Party to be held by it as
additional collateral security for the Obligations. After the occurrence and
during the continuance of an Event of Default, all sums of money and property so
paid or distributed in respect of the Collateral (other than proceeds of any
liquidation or similar proceeding) which are received by Pledgor shall, until
paid or delivered to Secured Party, be held by Pledgor in trust as additional
Collateral for the Obligations.
(b) Preservation of Collateral. Neither Secured Party nor any
Creditor shall have any duty to fix or preserve rights against prior parties to
the Collateral, nor be liable for any delay in the collection of, or failure to
use diligence to collect on, the Obligations or any amount payable in respect of
the Collateral.
(c) Performance by Secured Party. Should any covenant, duty or
agreement of Pledgor fail to be performed in accordance with its terms
hereunder, Secured Party may, but shall never be obligated to, perform or
attempt to perform such covenant, duty or agreement on behalf of Pledgor, and
any amount expended by Secured Party in such performance or attempted
performance shall become a part of the Obligations, shall be payable upon demand
and shall bear interest at a per annum rate equal to the lesser of (1) the
Highest Lawful Rate, or (2) the rate set forth in Section 2.13(d) of the
Revolver/Term Agreement.
(d) Voting Rights. It is expressly understood and agreed that Pledgor
shall retain all voting rights to the Collateral until the occurrence and during
the continuance of an Event of Default, at which time such voting rights for
purposes of collateral preservation shall transfer to Secured Party, at its sole
discretion and in accordance with Section 4(e) hereof; provided, however, that
no voting, corporate or management rights shall be exercised or vote cast or
consent, waiver or ratification given or action taken by Pledgor that would
impair the Collateral or be inconsistent with or violate any provision of this
Agreement or any other Transaction Documents.
(e) Power of Attorney. PLEDGOR HEREBY IRREVOCABLY GRANTS TO SECURED
PARTY PLEDGOR'S PROXY (EXERCISABLE FROM AND AFTER THE OCCURRENCE AND DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT WHICH IS CONTINUING) TO VOTE ANY COLLATERAL
AND APPOINTS SECURED PARTY AS PLEDGOR'S ATTORNEY-IN-FACT TO PERFORM ALL
OBLIGATIONS OF PLEDGOR UNDER THIS AGREEMENT AND TO EXERCISE ALL OF SECURED
PARTY'S RIGHTS HEREUNDER. THE PROXY AND POWER OF ATTORNEY HEREIN GRANTED, AND
EACH STOCK POWER AND SIMILAR POWER NOW OR HEREAFTER GRANTED (INCLUDING ANY
EVIDENCED BY A SEPARATE WRITING) ARE COUPLED WITH AN INTEREST AND ARE
IRREVOCABLE PRIOR TO FINAL PAYMENT IN FULL OF THE OBLIGATIONS.
I-4
5. DEFAULT.
(a) Rights and Remedies. Upon the occurrence and during the
continuance of an Event of Default, in addition to any and all other rights and
remedies which Secured Party or any Creditor may then have hereunder, under any
other Transaction Documents, under applicable law or otherwise, Secured Party at
its option may, subject to any limitation or restriction imposed by any
applicable bankruptcy, insolvency or other law relating to the relief of
debtors, (1) obtain from any Person information regarding Pledgor, any issuer of
the Collateral, or any of their businesses, which information any such Person
may furnish without liability to Pledgor; (2) require Pledgor to give possession
or control of any of the Collateral to Secured Party; (3) unless earlier
permitted hereunder, take control of funds generated by the Collateral and any
other proceeds and exercise all other rights which an owner of such Collateral
may exercise; (4) declare the entire unpaid balance of principal and interest on
the Obligations immediately due and payable, without notice, demand or
presentment, which are hereby expressly waived; (5) reduce its claim to
judgment, foreclose or otherwise enforce its security interest in all or any
part of the Collateral by any available judicial procedure; (6) after
notification, if any, provided for in this Agreement or any other Transaction
Documents, sell or otherwise dispose of, at the office of Secured Party, all or
any part of the Collateral, and any such sale or other disposition shall be in
accordance with applicable law, and may be as a unit or in parcels, by public or
private proceedings, and by way of one or more contracts (it being agreed that
the sale of any part of the Collateral shall not exhaust Secured Party's power
of sale, but sales may be made from time to time until all of the Collateral has
been sold or until the Obligations have been paid in full), and at any such sale
it shall not be necessary to exhibit the Collateral; (7) at its discretion,
retain the Collateral in satisfaction of the Obligations whenever the
circumstances are such that Secured Party is entitled to do so under applicable
law; (8) apply by appropriate judicial proceedings for appointment of a receiver
for the Collateral, or any part hereof, and Pledgor hereby consents to any
appointment; (9) buy the Collateral at any public sale; and (10) buy the
Collateral at any private sale, subject to any restrictions imposed by
applicable law. Pledgor agrees that, if notice is required to be given by
applicable law, ten days' advance written notice shall constitute reasonable
notice. Secured Party shall apply the proceeds of any collection, sale,
disposition or other realization upon any Collateral as follows:
First, to the payment of the costs and expenses of such collection,
sale, disposition, or other realization, including reasonable
out-of-pocket costs and expenses of Secured Party and the fees and
expenses of its agents and counsel;
Next, to the payment of the Obligations, as provided in the
Intercreditor Agreement, and in such manner consistent with applicable
laws as Secured Party in its discretion shall decide; and
Finally, to the payment to Pledgor, or its successors or assigns, or
as a court of competent jurisdiction may direct, of any surplus then
remaining.
If the proceeds of collection, sale, disposition, or other realization are
insufficient to cover the costs and expenses of such realization and the
payment in full of the Obligations, Pledgor shall remain liable for any
deficiency.
(b) Securities Laws; Transfer.
(1) Immediately upon the occurrence and during the continuance
of an Event of Default, Pledgor hereby grants to Secured Party the right to
have the Collateral, or any portion thereof, registered and sold under the
Securities Act of 1933, as amended ("Securities
I-5
Act"), or under any applicable state blue sky laws. If Secured Party shall
determine to exercise its right to sell any or all of the Collateral
pursuant to the terms hereof, and if in the reasonable opinion of Secured
Party it is necessary or advisable to have the Collateral (or that portion
thereof to be sold) registered under the provisions of the Securities Act,
Pledgor will cause the issuer of the Collateral to execute and deliver, and
cause the directors and officers thereof to execute and deliver, all at
Pledgor's and/or such issuer's expense, all such instruments and documents,
and to do or cause to be done all such other acts and things as may be
necessary or, in the opinion of Secured Party, advisable to register such
Collateral under the provisions of the Securities Act and to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public
offering of such Collateral, or that portion thereof to be sold, and to
make all amendments thereto and/or to the related prospectus which, in the
opinion of Secured Party, are necessary or advisable, all in conformity
with the requirements of applicable law. Pledgor agrees to cause the issuer
of the Collateral to comply with the provisions of the securities or "blue
sky" laws of any jurisdiction which Secured Party shall designate and to
cause the issuer of the Collateral to make available to its security
holders, as soon as practicable, an earnings statement which will satisfy
the provisions of Section 11(a) of the Securities Act.
(2) Pledgor recognizes that Secured Party may be unable to
effect a public sale of any or all of the Collateral by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws, but may be compelled to resort to one or more private
sales thereof to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire such Collateral for their own account
for investment and not with a view to the distribution or resale thereof.
Pledgor acknowledges and agrees that any such private sale conducted in the
manner described herein may result in prices and other terms less favorable
to the seller than if such sale were a public sale and, notwithstanding
such circumstances, agrees that any private sale shall be made in a
commercially reasonable manner. Secured Party shall be under no obligation
to delay a sale of any of the Collateral for the period of time necessary
to permit the issuer of the Collateral to register such Collateral for
public sale under the Securities Act, or under applicable state securities
laws, even if the issuer of the Collateral would agree to do so.
(3) Pledgor further agrees to do or cause to be done all such
other acts and things as may be necessary to make any sales of any portion
or all of the Collateral pursuant to paragraphs (b)(1) and (b)(2) of this
Section 5 valid and binding and in compliance with any and all applicable
laws (including, without limitation, the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Securities and Exchange
Commission applicable thereto), regulations, orders, writs, injunctions,
decrees or awards of any and all courts, arbitrators or governmental
instrumentalities, domestic or foreign, having jurisdiction over any such
sale or sales, all at Pledgor's expense. Pledgor further agrees that a
breach of any of the covenants contained in this Section 5 will cause
irreparable injury to Secured Party and that Secured Party may not have an
adequate remedy at law in respect of such breach. As a consequence, Pledgor
agrees that each and every covenant contained in this Section shall be
specifically enforceable against Pledgor. To the extent permitted by
applicable law, Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants.
(4) Pledgor agrees (A) that in the event Secured Party shall,
upon any Event of Default, sell the Collateral or any portion thereof, at a
private sale or sales, Secured Party shall have the right to rely upon the
advice and opinion of a member of a nationally recognized
I-6
investment banking firm acceptable to Secured Party, as to the best price
reasonably obtainable upon such a private sale thereof, and (B) in the
absence of fraud, willful misconduct and gross negligence, that such
reliance shall be conclusive evidence that Secured Party handled such
matter in a commercially reasonable manner under the UCC.
(c) Governmental Approvals. In connection with the exercise by
Secured Party of its rights hereunder, it may be necessary to obtain the prior
consent or approval of a Governmental Authority or other Persons to the exercise
of rights with respect to the Collateral, and any representations and warranties
made by Pledgor herein shall be deemed appropriately amended to reflect this
fact. Pledgor hereby agrees to execute, deliver and file, and hereby appoints
(to the extent permitted under applicable law) Secured Party as its attorney to
execute, deliver and file on Pledgor's behalf and in Pledgor's name, all
applications, certificates, filings, instruments and other documents (including
without limitation any application for an assignment or transfer of control or
ownership) that may be necessary or appropriate, in Secured Party's opinion, to
obtain such consents or approvals. Pledgor further agrees to use its best
efforts to obtain such consents or approvals. Pledgor acknowledges that there is
no adequate remedy at law for failure by it to comply with the provisions of
this Section and that such failure would not be adequately compensable in
damages, and therefore agrees that Pledgor's efforts to obtain any approval
required by this Section may be specifically enforced.
(d) Notice. Notification of the time and place of any public sale of
the Collateral, or reasonable notification of the time after which any private
sale or other intended disposition of the Collateral is to be made, shall be
sent to Pledgor and to any other Person entitled under applicable law to notice.
6. GENERAL.
(a) Secured Party's Duties. The Creditors have appointed Secured
Party to act as their agent as provided herein. In the event Secured Party is
replaced pursuant to Section 6.04 of the Intercreditor Agreement, the successor
Secured Party appointed in accordance with Section 6.04 of the Intercreditor
Agreement shall be the Secured Party hereunder. The powers conferred on Secured
Party hereunder are solely to protect the Creditors interest in the Collateral
and shall not impose any duty upon it to exercise any such powers. Except for
the safe custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, Secured Party shall have no duty as to
any Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders, or other matters relative to any
Collateral, whether or not Secured Party or any Creditor has or is deemed to
have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
reasonable care in the custody and preservation of any Collateral in its
possession if such Collateral is accorded treatment substantially equal to that
which Secured Party accords its own property. Except as set forth herein Secured
Party shall not have any duty or liability to protect or preserve any Collateral
or to preserve rights pertaining thereto. Nothing contained in this Agreement
shall be construed as requiring or obligating Secured Party, and Secured Party
shall not be required or obligated, (1) to present or file any claim or notice
or take any action, with respect to any Collateral or in connection therewith or
(2) to notify Pledgor of any decline in the value of any Collateral.
(b) Cumulative Rights. All rights and remedies of Secured Party
hereunder are cumulative of each other and of every other right or remedy which
Secured Party may otherwise have at law or in equity or under any other contract
or other writing for the enforcement of the security interest herein or the
collection of the Obligations, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
I-7
(c) Waiver. Should any part of the Obligations be payable in
installments, the acceptance by any Creditor at any time and from time to time
of partial payment of the aggregate amount of all installments then matured
shall not be deemed as a waiver of any Event of Default then existing. No waiver
by Secured Party or any Creditor of any Event of Default shall be deemed to be a
waiver of any other subsequent Event of Default, nor shall any such waiver by
Secured Party be deemed to be a continuing waiver. No delay or omission by
Secured Party or any Creditor in exercising any right or power hereunder, or
under any other Transaction Documents, shall impair any such right or power or
be construed as a waiver thereof or an acquiescence therein, nor shall any
single or partial exercise of any such right or power preclude other or further
exercise thereof, or the exercise of any other right or power of Secured Party
or any Creditor hereunder or under such other writings.
(d) Interest; Limitation of Law. No provision herein or in any
Transaction Document shall require the payment or permit the collection of
interest in excess of the maximum permitted by applicable law. If, in any
contingency whatsoever, Secured Party or any Creditor shall receive anything of
value from Pledgor deemed interest under applicable law which would exceed the
maximum amount of interest permissible under applicable law, the provisions of
the Transaction Documents shall govern.
(e) Parties Bound. This Agreement shall be binding on Pledgor and its
successors, assigns and legal and personal representatives, administrators,
executors, beneficiaries and heirs and shall inure to the benefit of Secured
Party and the Creditors, and their successors, assigns and legal
representatives; provided, however, that Pledgor may not assign its rights or
obligations hereunder without the prior written consent of Secured Party. The
rights, powers and interests held by Secured Party hereunder may be transferred
and assigned by Secured Party, in whole or in part, at such time and upon such
terms as permitted by the Transaction Documents.
(f) Notice. All notices, requests and other communications to any
party hereunder shall be in writing (including, telecopy or similar
teletransmission or writing) and shall be given to such party at its address or
telecopy number set forth on the signature pages hereof or such other address or
telecopy number as such party may hereafter specify by notice to the other
party. Each such notice, request or other communication shall be effective (1)
if given by mail, 72 hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid, or (2) if given by any
other means (including, but not limited to, by air courier), when delivered at
the address specified in this Section 6(f); provided that notices to Secured
Party shall not be effective until actually and physically received.
(g) Waivers by Pledgor. Pledgor waives notices of the creation,
advance, increase, existence, extension or renewal of, and of any indulgence
with respect to, the Obligations; waives presentment, demand, notice of dishonor
and protest; waives notice of the amount of the Obligations outstanding at any
time, notice of any change in financial condition of any Person liable for the
Obligations or any part thereof, notice of any Event of Default and all other
notices respecting the Obligations; waives all rights of redemption, appraisal,
or valuation; and agrees that maturity of the Obligations and any part thereof
may be accelerated, increased, extended or renewed one or more times by Secured
Party in their discretion, without notice to Pledgor.
(h) Modifications. No provision hereof shall be modified or limited
except by a written agreement expressly referring hereto and to the provisions
so modified or limited and signed by Secured Party, nor by course of conduct,
usage of trade or mercantile law.
I-8
(i) Control. Notwithstanding anything herein to the contrary, this
Agreement and the transactions contemplated hereby do not and will not
constitute, create, or have the effect of constituting or creating, directly or
indirectly, actual or practical ownership of Pledgor or the issuer of the
Collateral by Secured Party, or control, affirmative or negative, direct or
indirect, by Secured Party, over the management or any aspect of the day-to-day
operation of Pledgor or the issuer of the Collateral, which control remains in
Pledgor, the issuer of the Collateral, and their respective shareholders and
boards of directors.
(j) Governing Law; Submission to Jurisdiction; etc.
(1) Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND, TO THE EXTENT CONTROLLING,
LAWS OF THE UNITED STATES OF AMERICA.
(2) Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
TEXAS OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF
TEXAS, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, PLEDGOR HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. PLEDGOR HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, BUT NOT LIMITED TO, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(3) Waiver of Jury Trial and Consequential Damages. TO THE
MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EACH OF PLEDGOR AND SECURED PARTY
(A) IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY TRANSACTION DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN, (B) IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION
TO, ACTUAL DAMAGES; (C) CERTIFIES THAT NO PARTY HERETO NOR ANY
REPRESENTATIVE OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (D) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY BASED UPON, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION.
(4) Service of Process. Pledgor irrevocably consents to service
of process in the manner provided for notices in Section 6(f). Nothing
herein shall affect the right of Secured Party or any Creditor to serve
process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against Pledgor in any other jurisdiction.
I-9
(k) Entire Agreement. THIS AGREEMENT, TOGETHER WITH THE OTHER
TRANSACTION DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Pledgor has executed this Agreement as of the date
first above written.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
I-10
TRINITY INDUSTRIES, INC.,
a Delaware corporation
[Subsidiary]
TRINITY INDUSTRIES, INC. By:
0000 Xxxxxxxx Xxxxxxx ------------------------------------
Xxxxxx, Xxxxx 00000 Name:
Attn: Xxxx Xxxxx -----------------------------------
Telephone: 000-000-0000 Title:
Telecopy: 000-000-0000 ----------------------------------
I-11
Address of Secured Party: JPMORGAN CHASE BANK, as Secured Party
JPMORGAN CHASE BANK
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000 By:
Attn: Xxxxxxx Xxxxxx ------------------------------------
Telephone: (000) 000-0000 Xxxxxxx X. Xxxxxx,
Telecopy: (000) 000-0000 Vice President
I-12
EXHIBIT A
NUMBER OF SHARES/
ENTITY CERTIFICATE NO. RECORD OWNER OWNERSHIP INTERESTS
------ --------------- ------------ -------------------
------------- ------------------- ---------------- ---------------------
------------- ------------------- ---------------- ---------------------
------------- ------------------- ---------------- ---------------------
------------- ------------------- ---------------- ---------------------
I - Exhibit A-1
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
(to be attached)
Schedule 1.01 - 1
SCHEDULE 2.01
COMMITMENTS
Revolving
Lender Commitments Term Commitments
------ ----------- ----------------
JPMorgan Chase Bank $ 44,000,000 $134,000,000
Dresdner Bank AG, New York and $ 44,000,000 $ 3,000,000
Grand Cayman Branches
The Royal Bank of Scotland plc $ 44,000,000 N/A
BNP Paribas $ 35,000,000 N/A
The Bank of Nova Scotia $ 30,000,000 $ 3,000,000
Wachovia Bank, N.A. $ 25,000,000 $ 10,000,000
Bank One, NA $ 23,000,000 N/A
The Bank of Tokyo - Mitsubishi, Ltd. $ 20,000,000 N/A
Credit Suisse First Boston, $ 10,000,000 N/A
Cayman Islands Branch
TOTAL: $275,000,000 $150,000,000
Schedule 2.01 - 1
SCHEDULE 3.06
DISCLOSED MATTERS
None, except as disclosed in Borrower's Form 10K and Form 10Q reports
to the Securities and Exchange Commission.
Schedule 3.06 - 1
SCHEDULE 3.11
TRINITY INDUSTRIES, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/4/86
Qualified: Delaware, Alabama, Arizona, Arkansas, Florida,
Georgia, Illinois, Indiana, Kentucky, Louisiana,
Mississippi, North Carolina, Ohio, Oklahoma,
Pennsylvania, Tennessee, Texas
U.S. SUBSIDIARIES
XXXX TRUCKING COMPANY, INC.
State of Incorporation: Texas
Date of Incorporation: 12/9/54
Qualified: Texas
COLOMBUS EQUIPMENT LEASING COMPANY
State of Incorporation: Texas
Date of Incorporation: 8/30/96
Qualified: Texas
CONCRETE XXXXXX.XXX, LLC
State of Incorporation: Texas
Date of Incorporation: 8/10/00
Qualified: Texas
DIFCO, INC.
State of Incorporation: Ohio
Date of Incorporation: 12/27/54
Qualified: Ohio
FLO-BEND, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/20/93
Qualified: Delaware, Oklahoma
GAMBLES, INC.
State of Incorporation: Alabama
Date of Incorporation: 2/5/88
Qualified: Alabama
GREENVILLE STEEL CAR COMPANY, INC.
State of Incorporation: Pennsylvania
Date of Incorporation: 1/19/93
Qualified: Pennsylvania
Schedule 3.11 - 1
XXXXXXX, INC.
State of Incorporation: Texas
Date of Incorporation: 1/24/83
Qualified: Texas
XXXXXXXXXXXXXX.XXX, INC.
State of Incorporation: Delaware
Date of Incorporation: 5/3/00
Qualified: Delaware
INTERNATIONAL INDUSTRIAL INDEMNITY COMPANY
State of Incorporation: Vermont
Date of Incorporation: 6/19/90
Qualified: Vermont
XXXXXXXXXXXXXXX.XXX, INC.
State of Incorporation: Delaware
Date of Incorporation: 5/3/00
Qualified: Delaware
XXXXXX.XXX, INC.
State of Incorporation: Delaware
Date of Incorporation: 5/3/00
Qualified: Delaware
KENTUCKY GALVANIZING, INC.
State of Incorporation: Kentucky
Date of Incorporation: 6/1/88
Qualified: Kentucky
MCT PROPERTIES, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/25/95
Qualified: Delaware
MCCONWAY & TORLEY CORPORATION
State of Incorporation: Pennsylvania
Date of Incorporation: 6/25/40
Qualified: Pennsylvania, Kansas
MCCONWAY & TORLEY - ANNISTON, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/22/97
Qualified: Delaware, Alabama
Schedule 3.11 - 2
MIDLAND PAVING, INC.
State of Incorporation: Delaware
Date of Incorporation: 2/22/93
Qualified: Delaware, Texas
XXXXXX STEEL COMPANY
State of Incorporation: Texas
Date of Incorporation: 1/24/83
Qualified: Texas
PLATZER SHIPYARD, INC.
State of Incorporation: Delaware
Date of Incorporation: 2/22/93
Qualified: Delaware, Texas
REUNION GENERAL AGENCY, INC.
State of Incorporation: Texas
Date of Incorporation: 12/12/66
Qualified: Texas
SAGINAW RAILCAR REPAIR, INC.
State of Incorporation: Delaware
Date of Incorporation: 5/17/02
Qualified: Delaware
SOUTH TEXAS CONSTRUCTION, INC.
State of Incorporation: Delaware
Date of Incorporation: 2/22/93
Qualified: Delaware, Texas
STANDARD FORGED PRODUCTS, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/8/88
Qualified: Delaware, Pennsylvania
STANDARD FORGINGS CORPORATION
State of Incorporation: Delaware
Date of Incorporation: 10/1/68
Qualified: Delaware, Indiana
SYRO, INC.
State of Incorporation: Ohio
Date of Incorporation: 8/14/46
Qualified: Ohio, Utah, Texas
Schedule 3.11 - 3
TEXAS METAL FABRICATING, INC.
State of Incorporation: Texas
Date of Incorporation: 1/24/83
Qualified: Texas
THRALL COMPANY
State of Incorporation: Delaware
Date of Incorporation: 7/30/99
Qualified: Delaware
THRALL INTERNATIONAL HOLDINGS LLC
State of Incorporation: Illinois
Date of Incorporation: 3/23/95
Qualified: Illinois and United Kingdom
THRALL CAR GRANTOR CORP.
State of Incorporation: Delaware
Date of Incorporation: 6/9/97
Qualified: Delaware
THRALL TRINITY FREIGHT CAR, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/25/01
Qualified: Delaware, Georgia, Illinois, Michigan, Texas
TILX LP I, LLC
Delaware Limited Liability Company
Date of Formation: 12/12/66
Qualified: Texas
TILX GP I, LLC
Delaware Limited Liability Company
Date of Formation: 12/12/66
Qualified: Texas
TRANSIT MIX CONCRETE - BAYTOWN, INC.
State of Incorporation: Texas
Date of Incorporation: 9/11/98
Qualified: Texas
TRANSIT MIX CONCRETE & MATERIALS COMPANY
State of Incorporation: Delaware
Date of Incorporation: 9/26/91
Qualified: Delaware, Texas, Colorado
Schedule 3.11 - 4
TRANSIT MIX CONCRETE & MATERIALS COMPANY OF LOUISIANA
State of Incorporation: Delaware
Date of Incorporation: 4/20/94
Qualified: Delaware, Louisiana
TRANSIT MIX CONCRETE & MATERIALS COMPANY OF MIDLAND
State of Incorporation: Delaware
Date of Incorporation: 4/20/94
Qualified: Delaware, Texas
TRIMODUS, INC.
State of Incorporation: Delaware
Date of Incorporation: 5/3/00
Qualified: Delaware
TRIN MANUFACTURING SYSTEMS, INC.
State of Incorporation: Delaware
Date of Incorporation: 12/20/00
Qualified: Delaware
TRINITY a-VENTURES, INC.
State of Incorporation: Delaware
Date of Incorporation: 9/11/00
Qualified: Delaware, Texas
TRINITY BALCO, INC.
State of Incorporation: Delaware
Date of Incorporation: 12/28/89
Qualified: Delaware
TRINITY CASTINGS, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/24/97
Qualified: Delaware
TRINITY DIFCO, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/10/93
Qualified: Delaware, Ohio
TRINITY EE, INC.
State of Incorporation: Delaware
Date of Incorporation: 6/26/97
Qualified: Delaware, Missouri, Texas
Schedule 3.11 - 5
TRINITY EQUIPMENT CO., INC.
State of Incorporation: Delaware
Date of Incorporation: 5/6/91
Qualified: Delaware, Texas
TRINITY EQUIPMENT MANUFACTURING CO.
State of Incorporation: Delaware
Date of Incorporation: 7/30/99
Qualified: Delaware, New York, Florida, Texas
TRINITY E-VENTURES, INC.
State of Incorporation: Delaware
Date of Incorporation: 3/17/00
Qualified: Delaware, Texas
TRINITY FINANCIAL SERVICES, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/21/96
Qualified: Delaware
TRINITY FITTINGS GROUP, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/10/95
Qualified: Delaware, Arkansas, Indiana, Texas, Oklahoma,
Mississippi, Kentucky
TRINITY HH, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/22/97
Qualified: Delaware
TRINITY INDUSTRIES BUFFALO, INC.
State of Incorporation: Delaware
Date of Incorporation: 6/26/97
Qualified: Delaware, Connecticut, New York, Tennessee,
Texas, Alabama
TRINITY INDUSTRIES FOUNDATION
State of Incorporation: Texas
Date of Incorporation: 6/16/99
Qualified: Texas
TRINITY INDUSTRIES INTERNATIONAL
State of Incorporation: Delaware
Date of Incorporation: 4/20/94
Qualified: Delaware
Schedule 3.11 - 6
TRINITY INDUSTRIES, INC. OF LOUISIANA
State of Incorporation: Delaware
Date of Incorporation: 12/28/92
Qualified: Delaware, Louisiana
TRINITY INDUSTRIES LEASING COMPANY
State of Incorporation: Delaware
Date of Incorporation: 12/23/87
Qualified: Delaware, Illinois, Texas
TRINITY INDUSTRIES RAILCAR CORPORATION
State of Incorporation: Delaware
Date of Incorporation: 3/14/96
Qualified: Delaware
TRINITY INDUSTRIES REAL PROPERTIES, INC.
State of Incorporation: Delaware
Date of Incorporation: 1/19/93
Qualified: Delaware, Texas, Georgia, Mississippi,
Pennsylvania
TRINITY INDUSTRIES SECURITY, INC.
State of Incorporation: Texas
Date of Incorporation: 6/7/846
Qualified: Texas
TRINITY INDUSTRIES TRANSPORTATION, INC.
State of Incorporation: Texas
Date of Incorporation: 12/31/74
Qualified: Arkansas, Kentucky, Louisiana, North Carolina,
Missouri, Pennsylvania, Texas, Ohio, Utah
TRINITY INFORMATION SYSTEMS, INC.
State of Incorporation: Delaware
Date of Incorporation: 4/5/93
Qualified: Delaware, Texas
TRINITY JJ, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/26/98
Qualified: Delaware
TRINITY KK, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/26/98
Qualified: Delaware
Schedule 3.11 - 7
TRINITY MARINE PRODUCTS, INC.
State of Incorporation: Delaware
Date of Incorporation: 3/14/96
Qualified: Delaware, Louisiana, Missouri, Tennessee,
Kentucky
TRINITY MATERIALS, INC.
State of Incorporation: Delaware
Date of Incorporation: 4/5/93
Qualified: Delaware, Texas
TRINITY MINING SERVICES, INC.
State of Incorporation: Delaware
Date of Incorporation: 9/14/93
Qualified: Delaware, Alabama
TRINITY Q, INC.
State of Incorporation: Delaware
Date of Incorporation: 11/1/94
Qualified: Delaware, Ohio
TRINITY RAILCAR REPAIR, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/20/93
Qualified: Delaware, Arizona, Illinois, Kansas, Louisiana,
Nebraska, New Mexico, New York, Ohio,
Pennsylvania, Tennessee, Texas, Utah
TRINITY RAIL COMPONENTS & REPAIR, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/25/01
Qualified: Delaware, Georgia, Idaho, Illinois, Kansas,
Montana, Nebraska, New Mexico, North Carolina,
Pennsylvania, Tennessee, Texas
TRINITY RAIL GROUP LLC
State of Incorporation: Delaware
Date of Incorporation: 12/28/01
Qualified: Illinois
TRINITY RAIL, INC.
State of Incorporation: Delaware
Date of Incorporation: 9/14/93
Qualified: Delaware, Alabama
Schedule 3.11 - 8
TRINITY RAIL LEASING I L.P.
State of Incorporation: Delaware
Date of Incorporation: 5/14/01
Qualified: Delaware
TRINITY S-VENTURES, INC.
State of Incorporation: Delaware
Date of Incorporation: 4/6/00
Qualified: Delaware
TRINITY STRUCTURAL TOWERS, INC.
State of Incorporation: Delaware
Date of Incorporation: 3/17/00
Qualified: Delaware, Texas
TRINITY TANK CAR, INC.
State of Incorporation: Delaware
Date of Incorporation: 12/25/01
Qualified: Delaware, Illinois, Texas
TRINITY V-ALLIANCES, INC.
State of Incorporation: Delaware
Date of Incorporation: 9/12/00
Qualified: Delaware
TRISERV ALLIANCE, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/19/00
Qualified: Delaware
TRIPLE J SECURITIES, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/21/96
Qualified: Delaware
TRN BUSINESS TRUST
State of Incorporation: Delaware
Date of Incorporation: 3/14/96
Qualified: Delaware
TRN, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/10/95
Qualified: Delaware, Texas
Schedule 3.11 - 9
TRN INVESTMENT COMPANY
State of Incorporation: Delaware
Date of Incorporation: 10/25/99
Qualified: Delaware
WALDORF PROPERTIES, INC.
State of Incorporation: Delaware
Date of Incorporation: 3/14/96
Qualified: Delaware, Maryland, Alabama
Schedule 3.11 - 10
FOREIGN SUBSIDIARIES
APROMAT, S.A.
Jurisdiction: Romania
Date of Incorporation: 3/2/1990
ASTRA VAGOANE ARAD, S.A.
Jurisdiction: Romania
Date of Incorporation: 1/2/1990
MEVA, S.A.
Jurisdiction: Romania
Date of Incorporation: 3/29/1991
ICPV, S.A.
Jurisdiction: Romania
Date of Incorporation: 3/2/1991
THRALL EUROPA, s.r.o.
Jurisdiction: Czech Republic
Date of Incorporation: 3/03/1999
THRALL EUROPA UK
Jurisdiction: England & Wales
Date of Incorporation: 6/16/1997
THRALL INTERNATIONAL HOLDINGS, LLC
Jurisdiction: Switzerland
Date of Incorporation: 3/23/1995
THRALL VAGONKA STUDENKA
Jurisdiction: Slovak Republic
Date of Incorporation: 1/01/1994
RAIL PROJECT, s.r.o.
Jurisdiction: Slovak Republic
Date of Incorporation: 12/20/1993
TRINITY RAIL GmbH
Jurisdiction: Switzerland
Date of Incorporation: 7/13/2000
Schedule 3.11 - 11
TRINITY INDUSTRIES INTERNATIONAL HOLDINGS AG
Jurisdiction: Switzerland
Date of Incorporation: 10/1983
TRINITY ARGENTINA
Jurisdiction: Argentina
Date of Incorporation: 11/16/1999
TRINITY RAIL DO BRASIL
Jurisdiction: Brazil
Date of Incorporation: 10/29/1998
WAGONMARKET spol. s r.o.
Jurisdiction: Slovakia
Date of Incorporation: 5/4/1992
GRUPO TATSA, S de X.X. de C.V.
Jurisdiction: Mexico
Date of Incorporation: 12/23/1981
TRINITY INDUSTRIES DE MEXICO, S. DE X.X. DE C.V.
Jurisdiction: Mexico
Date of Incorporation: 12/31/1963
OFE, S. DE X.X. DE C.V.
Jurisdiction: Mexico
Date of Incorporation: 5/13/1955
ASISTENCIA PROFESSIONAL CORPORATIVA, S. DE X.X. DE C.V.
Jurisdiction: Mexico
Date of Incorporation: 3/25/1999
SERVICIOS CORPORATIVOS TATSA, S. DE X.X. DE C.V.
Jurisdiction: Mexico
Date of Incorporation: 3/03/1998
PROTECTOR NACIONAL, S.A. de C.V.
JURISDICTION: Mexico
Date of Incorporation: 2/27/1984
INDUSTRIAS TANQUE METAL, S.A. de C.V.
JURISDICTION: Mexico
Date of Incorporation: 10/4/1968
Schedule 3.11 - 12
MATERIAL SUBSIDIARIES
TRANSIT MIX CONCRETE & MATERIALS COMPANY
TRINITY INDUSTRIES LEASING COMPANY
TRINITY MARINE PRODUCTS, INC.
TRINITY RAIL GROUP, LLC
THRALL TRINITY FREIGHT CAR, INC.
TRINITY TANK CAR, INC.
TRINITY RAIL COMPONENTS & REPAIR, INC.
Schedule 3.11 - 13
SCHEDULE 3.13
EMPLOYEE MATTERS
COLLECTIVE BARGAINING AGREEMENTS
LOCATION UNION
-------- -----
Butler, PA United Steelworkers (USW)
Centerville, UT United Steelworkers (USW)
Cincinnati, OH United Steelworkers (USW)
Girard, OH United Steelworkers (USW)
Johnstown, PA United Steelworkers (USW)
Kutztown, PA Glass, Molders, etc.
(McConway & Torley)
Russelville, AR Boilermakers
Schedule 3.13 - 1
SCHEDULE 5
COLLATERAL
(to be attached)
Schedule 5 - 1
SCHEDULE 7.01
EXISTING INDEBTEDNESS
INTEREST DATE OF DATE BALANCE
PAYEE RATE NOTE DUE @ 03/31/02
----- -------- -------- -------- ------------
TRINITY
Montgomery, AL IRB 9.250% 08/01/80 08/01/05 $870,000
Pennsylvania Industrial Dev. Authority (PIDA) 6.000 11/18/88 10/01/08 169,280
Camerson Credit Union (Highland Parts) 8.000 04/04/00 08/01/03 270,299
Bank Credit Facility 270,000,000
LEASING
Equip. Trust Series 9 8.240 06/30/92 06/30/02 1,785,578
Equip. Trust Series 10 7.650 12/30/92 12/30/02 4,794,423
Equip. Trust Series 11 6.960 06/24/93 06/24/03 3,936,897
Equip. Trust Series 12 7.755 02/15/02 02/15/09 170,000,000
Capital Lease (GECC) 11.306 06/01/85 05/31/03 2,221,615
MCCONWAY & TORLEY
State of Pennsylvania 3.000 02/01/97 02/01/04 141,250
TRINITY INDUSTRIES RAILCAR CORP
Transport Capital 8.000 12/15/00 06/30/15 3,021,440
Transport Capital 8.000 12/15/00 06/30/15 422,999
------------
TOTAL $457,633,781
============
Schedule 7.01 - 1
SCHEDULE 7.02
EXISTING LIENS
Equipment Trust Certificate Financing (Series 9, 10 and 11)
Capital Lease Financing with GECC
Industrial Revenue Bond Financing - Montgomery, Alabama
TRLI Equipment Lease Transaction (SPE)
PIDA Financing - Butler, PA
Pass Through Equipment Trust Financing
Schedule 7.02 - 1
SCHEDULE 7.03
PERMITTED ASSET SALES
(to be attached)
Schedule 7.03 - 1
SCHEDULE 7.04
EXISTING INVESTMENTS
REMAINING
INVESTMENT
COMPANY INTEREST COMMITMENT
------- -------- ----------
Transport Capital 17.0% $ -0-
American Made 41.0 3.3 mil
Communispace 3.0 -0-
Xxxxxxxx Xxxxxxx 3.5 -0-
GoFigure Technologies 27.0 -0-
Vellis Knowledge 25.0 -0-
EPCAD 25.0 -0-
7th View 21.0 -0-
Q-Hire 15.0 -0-
Media Truck 10.0 -0-
Alpha Biosystems 17.0 -0-
Knowledge 2 Share 50.0 -0-
e-World Freight 5.0 -0-
Iktan 1.0 -0-
XxxxxX.xxx 5.0 -0-
Starguide Digital 1.0 -0-
Xxxxxxxx 2.0 -0-
Point to Point 10.0 -0-
--------
TOTAL $3.3 MIL
========
Schedule 7.04 - 1
SCHEDULE 7.08
EXISTING RESTRICTIONS
Equipment Trust Agreements 9, 10 & 11
TRLI Equipment Lease Transaction
Pass Through Equipment Trust Financing
Schedule 7.08 - 1
