EXHIBIT 10.17.3
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (this "Third Amendment") is
executed effective as of February 8, 2002 (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 and the Lenders are parties
to that certain Credit Agreement dated as of June 8, 2001, as amended by that
certain (i) First Amendment to Credit Agreement dated as of October 15, 2001,
and (ii) Second Amendment to Credit Agreement dated as of December 10, 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 Third 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 "Equity Contribution,"
"ETC Transaction" and "Third Amendment" which shall read in full as follows:
"Equity Contribution" means a cash contribution to the equity capital of
the Borrower in an amount not less than $20,000,000, such contribution to be
made in connection with the Borrower's equity sell program to Acqua Wellington.
"ETC Transaction" means the completion, closing and funding of equipment
trust certificate financing to the Borrower in a principal amount of not less
than $200,000,000.
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"Third Amendment" means that certain Third Amendment to Credit Agreement
dated as of February 8, 2002, among the Borrower, the Administrative Agent and
the Lenders.
1.2 AMENDMENT TO DEFINITION. The definition of "Loan Documents" set forth
in Section 1.01 of the Credit Agreement is amended to read in full as follows:
"Loan Documents" means this Agreement, the First Amendment, the Second
Amendment, the Third Amendment, the Notes, the Subsidiary Guaranties, the
Security Instruments, the Intercreditor 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.
1.3 AMENDMENT TO COLLATERAL PROVISIONS. Section 5.12(b) of the Credit
Agreement is amended to read in full as follows:
"(b) In the event that the Borrower has timely delivered a Certificate of
Conversion to the Administrative Agent in accordance with Section 2.01(b), and
either of the following has not occurred: (1) receipt by the Borrower of the
Equity Contribution on or before March 31, 2002, or (2) completion, closing and
funding of the ETC Transaction on or before March 31, 2002, then in any such
event, on or before May 1, 2002 (such date being referred to herein as the
"Collateral Delivery Date"), 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
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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;
(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 the
Collateral Delivery Date each requirement set forth in clauses (i) through (ix)
of this Section 5.12(b) shall constitute an immediate Event of Default."
Section 2. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. This Third
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:
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(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 Third
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 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;
(c) after giving effect to this Third Amendment, no Default or Event
of Default shall exist; and
(d) all proceedings taken in connection with the transactions
contemplated by this Third Amendment and all documentation and other legal
matters incident thereto shall be satisfactory to the Administrative Agent
and its counsel.
Section 3. LEGAL FEES. Upon execution of this Third Amendment by the
Required Lenders, the Borrower shall pay all reasonable fees and expenses of
counsel to the Administrative Agent incurred by the Administrative Agent in
connection with this Third 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 Third 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 Third 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 Third 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.
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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 Third
Amendment shall bind and insure to the benefit of the parties hereto and their
respective successors and assigns.
5.3 COUNTERPARTS. This Third Amendment may be executed in counterparts,
and all parties need not execute the same counterpart; however, no party shall
be bound by this Third 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 THIRD 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
Third Amendment are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Third Amendment, nor
affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed by their respective Authorized Officers as of the Effective
Date.
[Signature Pages Follow]
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SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
TRINITY INDUSTRIES, INC.
By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE 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:
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Xxxx Xxxxxx,
Vice President
[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE 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:
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Name:
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Title:
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By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
THE BANK OF TOKYO - MITSUBISHI, LTD.,
as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
BANK ONE, NA, as a Lender
By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
SUNTRUST BANK, as a Lender
By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
WACHOVIA BANK, N.A., as a Lender
By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
BNP PARIBAS, as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
THE ROYAL BANK OF SCOTLAND plc, as a Lender
By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
THE BANK OF NOVA SCOTIA, as a Lender
By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
THE BANK OF NEW YORK, as a Lender
By:
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Name:
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Title:
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[Signature Page]
SIGNATURE PAGE
TO
THIRD AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
COMERICA BANK, as a Lender
By:
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Name:
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Title:
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[Signature Page]
