EXHIBIT 10.17.2
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "Second Amendment") is
executed effective as of December 10, 2001 (the "Effective Date"), by and among
Trinity Industries, Inc., a Delaware corporation (the "Borrower"), JPMorgan
Chase Bank, successor by merger to The Chase Manhattan Bank, as the
Administrative Agent (the "Administrative Agent"), and the financial
institutions parties hereto as Lenders (individually a "Lender" and collectively
the "Lenders").
WITNESSETH:
WHEREAS, the Borrower, the Administrative Agent, the Syndication Agent, the
Documentation Agents and the Lenders are parties to that certain Credit
Agreement dated as of June 8, 2001, as amended by that certain First Amendment
to Credit Agreement dated as of October 15, 2001 (as amended, the "Credit
Agreement") (unless otherwise defined herein, all terms used herein with their
initial letter capitalized shall have the meaning given such terms in the Credit
Agreement); and
WHEREAS, pursuant to the Credit Agreement, the Lenders have made Loans to
the Borrower; and
WHEREAS, the Borrower has requested that the Lenders amend certain terms of
the Credit Agreement in certain respects; and
WHEREAS, subject to the terms and conditions herein contained, the Lenders
have agreed to the Borrower's request.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed, the
Borrower, the Administrative Agent and each Lender hereby agree as follows:
Section 1. AMENDMENTS. In reliance on the representations, warranties,
covenants and agreements contained in this Second Amendment, and subject to the
terms and conditions contained herein, the Credit Agreement is hereby amended
effective as of the Effective Date, in the manner provided in this Section 1.
1.1 ADDITIONAL DEFINITIONS. Section 1.01 of the Credit Agreement is
amended to add thereto in alphabetical order the definitions of "Collateral
Agent," "Intercreditor Agreement," "Mortgage," "Mortgaged Property," "Second
Amendment" and "Security Agreement" which shall read in full as follows:
"Collateral Agent" means JPMorgan Chase Bank, as collateral agent under
the terms of the Intercreditor Agreement, and its successors and assigns.
"Intercreditor Agreement" means that certain Intercreditor Agreement to
be executed in accordance with Section 5.12 by the Borrower, certain of its
Subsidiaries, the Collateral Agent, the Administrative Agent and JPMorgan Chase
Bank, as administrative agent
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for the lenders under the Bridge Agreement, in the form approved by the Required
Lenders and as the same may be amended or otherwise modified from time to time.
"Mortgage" means any mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien to the
Collateral Agent on any Mortgaged Property to secure the obligations described
in the Intercreditor Agreement. Each Mortgage shall be satisfactory in form and
substance to the Administrative Agent.
"Mortgaged Property" means each parcel of real property and
improvements thereto owned by the Borrower with respect to which a Mortgage is
granted pursuant to Section 5.12 or the Intercreditor Agreement.
"Second Amendment" means that certain Second Amendment to Credit
Agreement dated as of December 10, 2001, among the Borrower, the Administrative
Agent and the Lenders.
"Security Agreement" means one or more security agreements to be
executed in accordance with Section 5.12, and pursuant to the terms of the
Intercreditor Agreement, by the Borrower, certain of its Subsidiaries and the
Collateral Agent, which such agreements shall be satisfactory in form and
substance to the Administrative Agent.
1.2 AMENDMENTS TO DEFINITIONS. The definitions of "Administrative
Agent," "Chase," "Collateral," "ETC Indebtedness," "Loan Documents," "Permitted
Encumbrances" and "Security Instruments" set forth in Section 1.01 of the Credit
Agreement are amended to read in full as follows:
"Administrative Agent" means (i) prior to November 10, 2001, The Chase
Manhattan Bank, and (ii) from and after November 10, 2001, JPMorgan Chase Bank,
successor by merger to The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Chase" means (i) prior to November 10, 2001, The Chase Manhattan Bank,
and (ii) from and after November 10, 2001, JPMorgan Chase Bank, successor by
merger to The Chase Manhattan Bank, in its individual capacity or as an Issuing
Bank, as the case may be, and not as Administrative Agent.
"Collateral" means the Mortgaged Property, the "Collateral" as defined
in the Security Agreements and any and all property and assets on which Liens
have been granted to the Collateral Agent to secure the indebtedness,
obligations and liabilities of the Borrower and its Subsidiaries under the Loan
Documents.
"ETC Indebtedness" means equipment trust certificate or other secured
Indebtedness financing created or incurred after the date hereof and secured by
leased rail equipment which is pledged to a trustee acting on behalf of the
holders of such certificates or other secured Indebtedness.
"Loan Documents" means this Agreement, the First Amendment, the Second
Amendment, the Notes, the Subsidiary Guaranties, the Security Instruments, the
Intercreditor
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Agreement, the Letters of Credit, any Certificate of Conversion, 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 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 by the Borrower or any of its Subsidiaries in connection with
the foregoing.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(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 5.04;
(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) 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 VII;
(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;
and
(g) Liens, if any, securing the Indebtedness described in Sections
6.01(a), (h), (i), (j), (m) and (n);
provided that the term "Permitted Encumbrances" shall not (except as otherwise
permitted by clause (g) of this definition) include any Lien securing
Indebtedness.
"Security Instruments" means the Mortgages, the Security Agreements and
any and all other mortgages, deeds of trust, security agreements, pledge
agreements, 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
indebtedness, obligations and liabilities of the Borrower and its Subsidiaries
under the Loan Documents.
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1.3 AMENDMENT TO PROPERTIES REPRESENTATION. Section 3.05 of the Credit
Agreement is amended to read in full as follows:
"SECTION 3.05 Properties. (a) Each of the Borrower and its
Consolidated Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal 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, 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 infringement that,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries has received
notice of, or has knowledge of, any pending or contemplated condemnation
proceeding affecting any Mortgaged Property or any other real property
owned by it or any sale or disposition thereof in lieu of condemnation.
Neither any such real property nor any interest therein is subject to any
right of first refusal, option or other contractual right to purchase such
real property or interest therein."
1.4 AMENDMENT TO SECURITY INSTRUMENTS PROVISION. Section 5.10 of the
Credit Agreement is amended to read in full as follows:
"SECTION 5.10 Security Instruments. If at any time, the ratings
established by either S&P or Xxxxx'x for the Index Debt are reduced to a
category or level (as established in accordance with the terms of this
Agreement) below the applicable Security Threshold Rating Level, the
Borrower will, and will cause each of its Subsidiaries (as applicable) to,
at the Borrower's expense, execute and deliver to the Administrative Agent
for the benefit of the Lenders, on or prior to twenty (20) days following
the reduction of either of the ratings for the Index Debt to a category or
level below the applicable Security Threshold Rating Level (or on or prior
to such other date as may be agreed to in writing by the Borrower and the
Required Lenders), and at such other times as the Required Lenders shall
request, one or more Security Instruments, in form and substance
satisfactory to the Administrative Agent, and in such number of
counterparts as the Administrative Agent or the Collateral Agent shall
request, for the purpose and with the effect of granting to the Collateral
Agent as security for the indebtedness, obligations and liabilities of the
Borrower and its Subsidiaries described in the Intercreditor Agreement, a
valid first and prior Lien on such assets and property of the Borrower and
its Material Subsidiaries as the Required Lenders may require, together
with such other executed documentation as the Administrative Agent or any
Lender may require or deem necessary to perfect or protect the Collateral
Agent's Liens on such assets and properties of the Borrower
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and its Subsidiaries, including, without limitation, (i) financing
statements under the Uniform Commercial Code, (ii) all intellectual
property assignments for all intellectual property registered in the United
States of America, (iii) all Collateral the possession of which is
necessary to perfect the Liens therein, (iv) all other applicable
documentation under the laws of any jurisdiction required with respect to
the creation, perfection and protection of Liens, (v) all third-party or
governmental approvals and consents required for the pledge of the
Collateral under the Security Instruments, and (vi) opinions of counsel
(including, without limitation, local counsel), in form and substance
satisfactory to the Administrative Agent, and covering such matters as the
Administrative Agent or the Required Lenders shall reasonably request.
Notwithstanding the foregoing or anything else to the contrary contained
herein, the assets and property of the Borrower and its Subsidiaries on
which Liens have been (or will be) granted to secure the indebtedness,
obligations and liabilities of the Borrower and such Subsidiaries described
in Sections 6.01(i), (j) and (n) shall not be included as Collateral for
purposes of this Section 5.10 (including, without limitation, such assets
and property separately identified in writing by the Borrower or the
appropriate Subsidiary as reasonably necessary to secure such indebtedness,
obligations and liabilities that may be incurred by the Borrower or such
Subsidiary under Sections 6.01(i), (j) and (n)) for as long as such assets
and property continue to secure (or be separately identified as reasonably
necessary to secure) such indebtedness, obligations and liabilities."
1.5 ADDITIONAL AFFIRMATIVE COVENANTS. Article V of the Credit Agreement
is amended to add new Sections 5.11 and 5.12 thereto to read in full as follows:
"SECTION 5.11 Compliance With Security Instruments. The
Borrower will, and will cause each of its Subsidiaries to, comply with
its obligations under the Intercreditor Agreement and the Security
Agreements arising in connection with the formation or acquisition of
any Subsidiary within ten (10) Business Days after such Subsidiary is
formed or acquired.
SECTION 5.12 Collateral Provisions.
(a) On or before December 31, 2001, the Borrower shall deliver
or cause to be delivered to the Administrative Agent, each of the
following, all in form and substance acceptable to the Administrative
Agent and the Required Lenders in their sole discretion:
(i) the Intercreditor Agreement executed by the
Borrower and certain of its Subsidiaries a party thereto;
(ii) a Security Agreement executed by the Borrower
and certain of its Subsidiaries a party thereto, pursuant to
which the Borrower and such Subsidiaries grant to the
Collateral Agent a valid first and prior Lien on all of their
accounts receivable and inventory;
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(iii) a Subsidiary Guaranty executed by each of
Trinity Rail Group, LLC, Trinity Tank Car, Inc., Trinity Rail
Components & Repair, Inc. and Thrall Trinity Freight Car,
Inc.;
(iv) Uniform Commercial Code, tax and judgment lien
search reports listing all documentation on file against the
Borrower, each Subsidiary (as applicable) and such other
Persons as the Administrative Agent may require in each
jurisdiction in which it has a principal place of business and
jurisdiction of organization and in which any Collateral is or
has been located;
(v) subject to the terms of the Intercreditor
Agreement and the Security Agreements, such executed
documentation as the Collateral Agent or the Administrative
Agent may require or deem necessary to perfect or protect the
Collateral Agent's Liens in the assets of the Borrower and its
Subsidiaries granted pursuant to the Security Agreement
described in clause (ii) above, including, without limitation,
(A) financing statements under the Uniform Commercial Code,
(B) all Collateral the possession of which is necessary to
perfect the Lien therein, (C) all other applicable
documentation under the laws of any jurisdiction required with
respect to the creation, perfection and protection of Liens,
and (D) all third-party or governmental approvals and consents
required for the pledge of the Collateral under the Security
Agreement;
(vi) 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;
(vii) evidence that the insurance required by Section
5.05 is in effect;
(viii) favorable written opinions from counsel to the
Borrower and its Subsidiaries addressed to the Lenders and
satisfactory to Xxxxxx & Xxxxxx L.L.P., counsel for the
Administrative Agent, as to such matters relating to the
Intercreditor Agreement, the Security Agreements and the other
Loan Documents, as the Administrative Agent may request (and
the Borrower hereby instructs its counsel to deliver such
opinions to the Administrative Agent for the benefit of the
Lenders);
(ix) an amendment to the Bridge Agreement, in form
and substance satisfactory to the Administrative Agent,
executed by the Borrower, JPMorgan Chase Bank, as
administrative agent for the lenders under the Bridge
Agreement, and the lenders a party to such Bridge Agreement;
and
(x) such additional information and documentation as
the Collateral Agent or the Administrative Agent may require
to consummate the transactions contemplated by this Section
5.12(a).
The Borrower shall, and shall cause each Subsidiary to use,
commercially reasonable efforts to obtain on or before February 28,
2002, lien waivers,
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subordination agreements and/or estoppel certificates with respect to
the Collateral from all of the Borrower's and its applicable
Subsidiaries' landlords, mortgages and/or lessees.
The Borrower's failure to fully and timely satisfy on or
before December 31, 2001 each requirement set forth in clauses (i)
through (x) of this Section 5.12(a) shall constitute an immediate Event
of Default.
(b) On or before February 15, 2002, the Borrower shall deliver
or cause to be delivered to the Administrative 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 (which may take the form of
an amendment and restatement of the Security Agreement
delivered pursuant to Section 5.12(a)(ii)) executed by the
Borrower and certain of its Subsidiaries, pursuant to which
the Borrower and such Subsidiaries grant to the Collateral
Agent a valid first and prior Lien on certain equipment, real
property and other assets and property of the Borrower and
such Subsidiaries (in addition to the Liens granted pursuant
to the Security Agreement delivered pursuant to Section
5.12(a)(ii)) as shall be required and determined by the
Administrative Agent and the Required Lenders;
(ii) Uniform Commercial Code, 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
it has a principal place of business and jurisdiction of
organization and in which any Collateral is or has been
located;
(iii) subject to the terms of the Intercreditor
Agreement and the Security Agreements, such executed
documentation as the Collateral Agent or the Administrative
Agent may require or deem necessary to perfect or protect the
Collateral Agent's Liens in the assets of the Borrower and its
Subsidiaries granted pursuant to the Security Agreement
described in clause (i) above, including, without limitation,
(A) financing statements under the Uniform Commercial Code,
(B) all Collateral the possession of which is necessary to
perfect the Lien therein, (C) all other applicable
documentation under the laws of any jurisdiction required with
respect to the creation, perfection and protection of Liens,
and (D) all third-party or governmental approvals and consents
required for the pledge of the Collateral under the Security
Agreement;
(iv) 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;
(v) evidence that the insurance required by Section
5.05 is in effect;
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(vi) favorable written opinions from counsel to the
Borrower and its Subsidiaries addressed to the Lenders and
satisfactory to Xxxxxx & Xxxxxx L.L.P., counsel for the
Administrative Agent, as to such matters relating to the
Security Agreements and the other Loan Documents, as the
Administrative Agent may request (and the Borrower hereby
instructs its counsel to deliver such opinions to the
Administrative Agent for the benefit of the Lenders);
(vii) as applicable, a Mortgage with respect to each
Mortgaged Property executed on behalf of the record owner of
such Mortgaged Property with a metes and bounds or other
description of the parcel attached thereto and recorded in the
applicable real property records;
(viii) with respect to each parcel of the Mortgaged
Property, a title insurance commitment, all documentation
evidencing any exceptions to title reflected thereon (or other
evidence of title satisfactory to the Administrative Agent),
and, to the extent available, a survey and environmental
report relating to such parcel; and
(ix) such additional information and documentation as
the Collateral Agent or the Administrative Agent may require
to consummate the transactions contemplated by this Section
5.12(b).
The Borrower's failure to fully and timely satisfy on or before
February 15, 2002 each requirement set forth in clauses (i) through (ix) of this
Section 5.12(b) shall constitute an immediate Event of Default."
1.6 AMENDMENT TO LIEN COVENANT. Section 6.02 of the Credit Agreement is
amended to read in full as follows:
"SECTION 6.02 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
Agreements, the Mortgages, the other Security Instruments and the other
Loan Documents;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on December 10, 2001 and set forth in Schedule
6.02;
(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
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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 6.01, (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."
1.7 AMENDMENT TO FUNDAMENTAL CHANGE COVENANT. Section 6.03(a) of the
Credit Agreement is amended to read in full as follows:
"(a) Except for the Thrall Merger which is expressly permitted
hereunder, and 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 6.03 (or the sale of the voting securities or other equity
interests of Subsidiaries whose only substantial assets are those
described on Schedule 6.03), (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, 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) any
Subsidiary may sell, transfer, lease or otherwise dispose of its assets
to the Borrower or to another Subsidiary, (D) TRLI may enter into,
observe and perform its obligations pursuant to, and in accordance
with, the TRLI Equipment Lease Transaction, and (E) 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 6.04."
1.8 AMENDMENT TO RESTRICTIVE AGREEMENTS COVENANT. Section 6.08 of the
Credit Agreement is amended to read in full as follows:
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"SECTION 6.08 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 the 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 6.08 (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 and (v) clause (a) of the foregoing shall
not apply to customary provisions in leases and other contracts
restricting the assignment thereof."
1.9 AMENDMENT TO DEFAULT PROVISIONS. Article VII of the Credit
Agreement is amended as follows:
(a) Clause (d) of Article VII of the Credit Agreement is
amended to read in full as follows:
"(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Sections 5.01, 5.02, 5.03
(with respect to the Borrower's and its Subsidiaries' existence), 5.08,
5.10, 5.11, 5.12 or in Article VI, in the Security Agreement, in any
Mortgage or in the Intercreditor Agreement;".
(b) New clauses (n), (o) and (p) are added to Article VII of
the Credit Agreement to read in their entireties as follows and the
word "or" is deleted from the end of clause (l):
"(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 Lien on any Collateral,
with the priority required hereby, except as a result of the sale or
other disposition of the applicable Collateral in a transaction
permitted under the Loan Documents;
(o) the occurrence of an Event of Default (as defined in the
Intercreditor Agreement); or
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(p) either any Subsidiary Guaranty, any Security Agreement,
the Intercreditor Agreement or any Mortgage 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."
(c) The following provision is added to the end of Article VII
of the Credit Agreement:
"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 Collateral Agent to exercise the rights and
remedies available to the Collateral Agent under the Intercreditor
Agreement, the Mortgages and the Security Agreements."
1.10 AMENDMENT TO AGENT PROVISIONS. The following provision is added to
the end of Article VIII of the Credit Agreement:
"The Administrative Agent is authorized to execute the
Intercreditor Agreement on behalf of each Lender and bind each Lender
to the terms thereof as if each Lender were directly a party thereto."
1.11 AMENDMENT TO WAIVERS AND AMENDMENTS PROVISIONS. Section 9.02(b) of
the Credit Agreement is amended to read in full as follows:
"(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 2.17(b) or (c) in a
manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (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,
except as expressly permitted hereby, and provided that the
Administrative Agent or the Collateral Agent shall release (without
consent from the Lenders) any Collateral sold, transferred or otherwise
disposed of as permitted by Section 6.03 hereof, or (vii) change any of
the provisions of this Section 9.02(b) or the definition of
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"Required 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; 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."
Section 2. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. With the
exception of Section 1.11 hereof, this Second Amendment shall be effective
automatically and without the necessity of any further action by the
Administrative Agent, the Borrower or any Lender when counterparts hereof have
been executed by the Administrative Agent, the Borrower and the Required
Lenders, and each of the following conditions to the effectiveness hereof have
been satisfied:
(a) the Administrative Agent shall have received such
documents and certificates as the Administrative Agent and its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrower and each Subsidiary, the power and authority
of the Borrower and each Subsidiary (as applicable) to execute, deliver
and perform this Second Amendment and any other legal matters relating
to the Borrower, any Subsidiary or the Loan Documents, all in form and
substance satisfactory to the Administrative Agent and its counsel;
(b) the Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including reimbursement or payment of all out-of-pocket expenses
(including fees, charges and disbursements of counsel) required to be
reimbursed hereunder or under any other Loan Document;
(c) the representations and warranties contained herein and in
all other Loan Documents, as amended hereby, shall be true and correct
in all material respects as of the Effective Date as if made on the
Effective Date, except for such representations and warranties limited
by their terms to a specific date;
(d) after giving effect to this Second Amendment, no Default
or Event of Default shall exist; and
(e) all proceedings taken in connection with the transactions
contemplated by this Second Amendment and all documentation and other
legal matters incident thereto shall be satisfactory to the
Administrative Agent and its counsel.
Section 1.11 hereof will be effective automatically and without the necessity of
any further action by the Administrative Agent, the Borrower or any Lender when
counterparts hereof have been executed by the Administrative Agent, the Borrower
and all Lenders, and each of the foregoing conditions to the effectiveness
hereof have been satisfied.
Section 3. LEGAL FEES. Upon execution of this Second Amendment by the
Required Lenders, the Borrower shall pay all reasonable fees and expenses of
counsel to the
12
Administrative Agent incurred by the Administrative Agent in connection with
this Second Amendment and all related documents and transactions.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. To induce
the Lenders and the Administrative Agent to enter into this Second Amendment,
the Borrower hereby represents and warrants to the Administrative Agent and the
Lenders as follows:
4.1 REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
representation and warranty of the Borrower contained in the Credit Agreement
and the other Loan Documents is true and correct on the date hereof after giving
effect to the amendments set forth in Section 1 hereof.
4.2 DUE AUTHORIZATION, NO CONFLICTS. The execution, delivery and
performance by the Borrower of this Second Amendment are within the Borrower's
corporate powers, have been duly authorized by necessary action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not violate or constitute a default under any provision of
applicable law or any material agreement binding upon the Borrower or its
Subsidiaries, or result in the creation or imposition of any Lien upon any of
the assets of the Borrower or its Subsidiaries except for Permitted
Encumbrances.
4.3 VALIDITY AND BINDING EFFECT. This Second Amendment constitutes the
valid and binding obligations of the Borrower enforceable in accordance with its
terms, except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditor's rights generally, and (b) the
availability of equitable remedies may be limited by equitable principles of
general application.
4.4 NO DEFENSES. The Borrower has no defenses to payment, counterclaim
or rights of set-off with respect to the indebtedness, obligations and
liabilities of the Borrower under the Loan Documents existing on the date
hereof.
4.5 ABSENCE OF DEFAULTS. After giving effect to the amendments set
forth in Section 1 hereof, neither a Default nor an Event of Default has
occurred which is continuing.
Section 5. MISCELLANEOUS.
5.1 REAFFIRMATION OF LOAN DOCUMENTS. Any and all of the terms and
provisions of the Credit Agreement and the other Loan Documents shall, except as
amended and modified hereby, remain in full force and effect. The Borrower
hereby agrees that the amendments and modifications herein contained shall in no
manner adversely affect or impair the indebtedness, obligations and liabilities
of the Borrower under the Loan Documents.
5.2 PARTIES IN INTEREST. All of the terms and provisions of this Second
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
5.3 COUNTERPARTS. This Second Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however, no
party shall be
13
bound by this Second Amendment until counterparts hereof have been executed by
the Borrower and the Required Lenders. Facsimiles shall be effective as
originals.
5.4 COMPLETE AGREEMENT. THIS SECOND AMENDMENT, THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES.
5.5 HEADINGS. The headings, captions and arrangements used in this
Second Amendment are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Second Amendment,
nor affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed by their respective Authorized Officers as of the Effective
Date.
[Signature Pages Follow]
14
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
TRINITY INDUSTRIES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
JPMORGAN CHASE BANK (successor in interest
by merger to The Chase Manhattan Bank),
individually and as Administrative Agent
By:
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
THE BANK OF TOKYO - MITSUBISHI, LTD.,
as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
BANK ONE, NA, as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
SUNTRUST BANK, as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
WACHOVIA BANK, N.A., as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
BNP PARIBAS, as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
THE ROYAL BANK OF SCOTLAND plc,
as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
THE BANK OF NOVA SCOTIA, as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
THE BANK OF NEW YORK, as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
COMERICA BANK, as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[Signature Page]
