EXHIBIT 10.17.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "First Amendment") is
executed effective as of October 15, 2001, by and among Trinity Industries,
Inc., a Delaware corporation (the "Borrower"), 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 (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 First Amendment, and subject to the
terms and conditions contained herein, the Credit Agreement is hereby amended
effective as of October 15, 2001, 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
"Bridge Agreement," "Bridge Indebtedness," "Collateral," "First Amendment,"
"Indebtedness," "Security Instruments," "Security Threshold Rating Level,"
"TCMC," "Thrall," "Thrall Additional Payments," "Thrall Management," "Thrall
Merger," "Thrall Merger Agreement," and "Thrall Merger Documents" which shall
read in full as follows:
"Bridge Agreement" means that certain Term Credit Agreement
dated as of October 15, 2001, by and among the Borrower, The Chase Manhattan
Bank, as administrative agent, and the other financial institutions a party
thereto as lenders, as the same may be amended, renewed, extended or restated
from time to time.
"Bridge Indebtedness" means all Indebtedness of the Borrower
outstanding under the Bridge Agreement, which Indebtedness does not, at any
time, exceed $170,000,000.
"Collateral" means any and all property and assets on which
Liens have been granted to the Administrative Agent to secure the indebtedness,
obligations and liabilities of the Borrower and its Subsidiaries under the Loan
Documents.
"First Amendment" means that certain First Amendment to Credit
Agreement dated as of October 15, 2001, among the Borrower, the Administrative
Agent and the Lenders.
"Security Instruments" means all 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.
"Security Threshold Rating Level" means an Index Debt rating
as established by either S&P or Xxxxx'x, respectively, of BBB-/Baa3; provided,
that, an Index Debt rating as established by S&P and Xxxxx'x, respectively, of
BBB/Ba1 shall not trigger the mandatory security provisions of Section 5.10
hereof.
"TCMC" means TCMC Acquisition Corp., an Illinois corporation,
the sole shareholder of which is the Borrower.
"Thrall" means Thrall Car Manufacturing Company, an Illinois
corporation.
"Thrall Additional Payments" means the "Additional Merger
Consideration Payments" as defined in the Thrall Merger Agreement, the aggregate
amount of which shall not exceed $45,000,000.
"Thrall Management" means Thrall Car Management Company, Inc.,
a Delaware corporation, and the sole shareholder of Thrall.
"Thrall Merger" means the merger of TCMC with and into Thrall
pursuant to, and in accordance with, the Thrall Merger Documents, with Thrall
being the surviving corporation.
"Thrall Merger Agreement" means that certain Agreement and
Plan of Merger dated as of August 13, 2001, among the Borrower, TCMC, Thrall
Management and Thrall.
"Thrall Merger Documents" means the Thrall Merger Agreement,
the other Operative Agreements (as such term is defined in the Thrall Merger
Agreement), and all other material documents, instruments and agreements
executed or delivered by the Borrower, TCMC, Thrall Management and/or Thrall
pursuant to the Thrall Merger Agreement or in connection with the Thrall Merger.
1.2 AMENDMENTS TO DEFINITIONS. The definitions of "Applicable
Rate," "Debt Offering," "EBITDA," "Fiscal Year," "Index Debt," "Loan Documents,"
"Permitted
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Acquisition" and "Total Debt" set forth in Section 1.01 of the Credit Agreement
are amended to read in full as follows:
"Applicable Rate" means, for any day, with respect to any
Eurodollar Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
"Eurodollar Revolving Spread," "Eurodollar Term Spread" or "Facility Fee Rate,"
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 Revolving Eurodollar Term Facility Fee
Index Debt Ratings Spread Spread Rate
------------------ -------------------- --------------- ------------
Category 1 0.650% 1.250% 0.100%
----------
A-/A3 or higher
Category 2 0.750% 1.375% 0.125%
----------
BBB+/Baa1
Category 3 0.850% 1.500% 0.150%
----------
BBB/Baa2
Category 4 0.950% 1.625% 0.175%
----------
BBB-/Baa3
Category 5 1.175% 1.750% 0.200%
----------
BB+/Ba1 or lower
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 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 Xxxxx'x for the Index Debt shall be
changed (other than as a result of a change in the rating system of S&P or
Xxxxx'x), 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 Xxxxx'x 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.
"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
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expressly permitted by Section 6.01 hereof (other than (i) Indebtedness
described in Section 6.01(k), and (ii) Indebtedness described in Section
6.01(n), all of which Indebtedness described in clauses (i) and (ii) hereof will
constitute a Debt Offering hereunder) will not constitute a Debt Offering for
purposes of this Agreement.
"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 Borrower and on a pro forma basis, the
pro forma EBITDA of any acquired Person in connection with the Thrall Merger or,
as applicable, the EBITDA of any such acquired Person attributable to the assets
acquired from such Person, for any portion of such applicable period occurring
prior to the date of the Thrall Merger but only to the extent such EBITDA for
such acquired Person can be established in a manner satisfactory to the
Administrative Agent based on financial statements of such acquired Person
prepared in accordance with GAAP, plus (c) with respect to the period ended
March 31, 2001, non-cash and cash charges in an aggregate amount not to exceed
$174,000,000, plus (d) non-cash and cash charges related to the Thrall Merger in
an aggregate amount not to exceed $25,000,000; 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.
"Fiscal Year" means the fiscal year of the Borrower, ending on
December 31 of each year.
"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 Xxxxx'x, either (i) the corporate debt rating of
the Borrower established by Xxxxx'x and in effect for such day, or (ii) if no
corporate debt rating of the Borrower has been established by Xxxxx'x 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
Xxxxx'x and in effect for such day (i.e. a rating one level higher than the
subordinated debt rating of the Borrower established by Xxxxx'x and in effect
for such day).
"Loan Documents" means this Agreement, the First Amendment,
the Notes, the Subsidiary Guaranties, the Security Instruments, 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 Acquisition" means (i) the Thrall Merger, and (ii)
any other 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
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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 or transaction
described in clause (i) or clause (ii), and (b) the cash amount for such
acquisitions described in clause (ii) does not exceed in the aggregate, during
any Fiscal Year of the Borrower, $50,000,000.
"Total Debt" means, for any period, all 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, plus (c) Indebtedness evidenced by any scheduled
Thrall Additional Payments due and owing during such period.
1.3 AMENDMENT TO COMMITMENT REDUCTION PROVISION. Section
2.08(b) of the Credit Agreement is amended to read in full as follows:
"(b) In the event the Borrower shall, prior to the Revolving
Commitment Termination Date, receive Net Cash Proceeds from (i) any
Asset Disposition, the Revolving Commitment shall reduce (and the
Revolving Commitments of each Lender shall reduce ratably) on such date
by an amount equal to seventy-five percent (75%) of such Net Cash
Proceeds, and (ii) any Debt Offering, the Revolving Commitment shall
reduce (and the Revolving Commitments of each Lender shall reduce
ratably) on such date by an amount equal to fifty percent (50%) of such
Net Cash Proceeds."
1.4 ADDITIONAL AFFIRMATIVE COVENANT. Article V of the Credit
Agreement is amended to add a new Section 5.10 thereto 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 Material
Subsidiaries 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, one or more Security Instruments, in form and
substance satisfactory to the Administrative Agent, and in such number
of counterparts as the Administrative Agent shall request, for the
purpose and with the effect of granting to the Administrative Agent for
the benefit of the Lenders as security for the indebtedness,
obligations and liabilities of the Borrower and its Subsidiaries under
the Loan Documents (which shall be secured ratably with the
indebtedness, obligations and liabilities of the Borrower and its
Subsidiaries under the Bridge Agreement), a valid first and prior Lien
on all material assets and property of the Borrower and its Material
Subsidiaries, together with such other executed documentation as the
Administrative Agent or any Lender may require or deem necessary to
perfect or protect the Administrative Agent's Liens on the assets and
properties of the Borrower and its Material Subsidiaries, including,
without limitation, (i) financing statements under the Uniform
Commercial Code, (ii) all intellectual property assignments for all
intellectual property registered in the
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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."
1.5 AMENDMENT TO DEBT COVENANT. Section 6.01 of the Credit
Agreement is amended to read in full as follows:
"SECTION 6.01 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 6.01, 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;
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(g) Indebtedness of the Borrower or any Subsidiary as an
account party in respect of trade letters of credit;
(h) Existing LC Exposure;
(i) Indebtedness evidenced by the TRLI Equipment Lease
Transaction in an aggregate amount not to exceed $200,000,000;
(j) ETC Indebtedness in an aggregate amount not to exceed
$200,000,000;
(k) 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;
(l) Indebtedness incurred for the Thrall Additional Payments
in an aggregate amount not to exceed $45,000,000;
(m) Bridge Indebtedness in an aggregate amount not to exceed
$170,000,000, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof;
(n) ETC Indebtedness (in addition to that permitted by clause
(j) of this Section 6.01) to the extent issued prior to the Borrower's
Fiscal Year ending December 31, 2002, in an aggregate amount not to
exceed $150,000,000; and
(o) other unsecured Indebtedness in an aggregate principal
amount not exceeding $75,000,000 at any time outstanding (the "Debt
Basket"); provided that the Debt Basket shall automatically reduce (on
a dollar for dollar basis) by an amount equal to any increase in the
aggregate Commitments above $450,000,000 pursuant to Section 2.01(c)
hereof, but in no event shall the Debt Basket be reduced pursuant to
the terms hereof below $50,000,000; provided further that the aggregate
principal amount of Indebtedness of the Borrower's Subsidiaries
permitted by this clause (o) shall not exceed $10,000,000 at any time
outstanding (excluding any Indebtedness of any such Subsidiaries
permitted by clauses (i) and (j) of this Section 6.01)."
1.6 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,
merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or, except
for (i) sales of inventory in the ordinary course of business,
and (ii) 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), sell, transfer, lease or
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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
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."
1.7 AMENDMENT TO LEVERAGE RATIO COVENANT. Section 6.09(b) of
the Credit Agreement is amended to read in full as follows:
"(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 September 30, 2001 3.25 to 1.00
Rolling Period ending December 31, 2001 4.00 to 1.00
Rolling Period ending March 31, 2002 4.00 to 1.00
Rolling Period ending June 30, 2002 3.75 to 1.00
Rolling Period ending September 30, 2002 3.75 to 1.00
Each Rolling Period thereafter 3.50 to 1.00
1.8 AMENDMENT TO CAPITAL EXPENDITURES COVENANT. Section 6.11
of the Credit Agreement is amended to read in full as follows:
"SECTION 6.11 Capital Expenditures. The Borrower will not, and
will not permit any of its Subsidiaries to, make (a) Capital
Expenditures (Leasing Company) (i) for the nine (9) month period ending
December 31, 2001 in excess of $150,000,000 in an aggregate amount, and
(ii) for any Fiscal Year ending thereafter in excess of $205,000,000 in
an aggregate amount, and (b) Capital Expenditures (Non-Leasing Company)
(i) for the nine (9) month period ending December 31, 2001 in excess of
$65,000,000 in an aggregate amount, and (ii) for any Fiscal Year ending
thereafter in excess of $95,000,000 in an aggregate amount."
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1.9 AMENDMENT TO DEFAULT PROVISIONS. 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 Section 5.01, 5.02, 5.03
(with respect to the Borrower's and its Subsidiaries' existence), 5.08,
5.10 or in Article VI;".
1.10 REDUCED COMMITMENTS; NEW SCHEDULE 2.02. Effective as of
the date hereof, the aggregate amount of the Lenders' Commitments is
$450,000,000. Schedule 2.01 to the Credit Agreement shall be replaced in its
entirety with Schedule 2.01 attached hereto and made a part hereof, which
Schedule 2.01 reflects each Lenders' Commitment effective as of the date hereof.
Section 2. EFFECTIVENESS OF AMENDMENT. This First 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 all the conditions to the effectiveness hereof set forth herein
(including, without limitation, the conditions set forth in Section 3 hereof)
have been satisfied.
Section 3. CLOSING DELIVERIES. Unless otherwise provided herein,
simultaneously with the execution and delivery hereof, and as a condition to the
effectiveness hereof, the Borrower shall deliver or pay to, or cause the
delivery or payment to, the Administrative Agent: (a) a copy of each Thrall
Merger Document, together with a certificate from an Authorized Officer of the
Borrower certifying that such copies are accurate and complete and represent the
complete understanding and agreement of the parties with respect to the subject
matter thereof, (b) the amendment fee due and payable in accordance with Section
4 hereof, (c) such arrangement and other fees due and payable to the
Administrative Agent and/or its Affiliates (for their own account) pursuant to
any separate agreement among or between the Borrower, the Administrative Agent
and its Affiliates, (d) the fees and expenses of counsel to the Administrative
Agent due and payable in accordance with Section 5 hereof, and (e) such
certificates of Authorized Officers of the Borrower, certified copies of
resolutions of the Board of Directors of the Borrower, and such other documents,
instruments and agreements as the Administrative Agent shall require to evidence
the due authorization, execution and delivery of this First Amendment and the
transactions contemplated hereby.
Section 4. AMENDMENT FEE. Upon execution of this First Amendment by the
Required Lenders (any such Lender executing and delivering this First Amendment
to the Administrative Agent prior to 5:00 p.m. (Dallas, Texas time) on October
22, 2001, being referred to herein as an "Executing Lender"), the Borrower shall
pay to the Administrative Agent for the ratable benefit of the Executing Lenders
a fee in the aggregate amount of one-tenth of one percent (.10%) of the
aggregate Revolving Commitments of all Executing Lenders on the date hereof.
Such fee shall be distributed by the Administrative Agent ratably to each such
Executing Lender provided that such Executing Lender has executed and delivered
this First Amendment to the Administrative Agent prior to 5:00 p.m. (Dallas,
Texas time) on October 22, 2001.
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Section 5. LEGAL FEES. Upon execution of this First 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 First Amendment and all related documents and transactions.
Section 6. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. To induce
the Lenders and the Administrative Agent to enter into this First Amendment, the
Borrower hereby represents and warrants to the Administrative Agent and the
Lenders as follows:
6.1 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.
6.2 DUE AUTHORIZATION, NO CONFLICTS. The execution, delivery
and performance by the Borrower of this First 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.
6.3 VALIDITY AND BINDING EFFECT. This First 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.
6.4 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.
6.5 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 7. MISCELLANEOUS.
7.1 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.
7.2 PARTIES IN INTEREST. All of the terms and provisions of
this First Amendment shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns.
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7.3 COUNTERPARTS. This First Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however, no
party shall be bound by this First Amendment until counterparts hereof have been
executed by the Borrower and the Required Lenders. Facsimiles shall be effective
as originals.
7.4 COMPLETE AGREEMENT. THIS FIRST 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.
7.5 HEADINGS. The headings, captions and arrangements used in
this First Amendment are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify or modify the terms of this First
Amendment, nor affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed by their respective Authorized Officers on the date and year
first above written.
[Signature Pages Follow]
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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
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
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
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By:
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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
SCHEDULE 2.01
COMMITMENTS
Lender Commitments
------------------------------------------------------------ ---------------
The Chase Manhattan Bank $ 48,913,043.50
Dresdner Bank AG, New York and Grand Cayman Branches
$ 48,913,043.50
The Bank of Tokyo - Mitsubishi, Ltd. $ 48,913,043.50
Bank One, NA $ 48,913,043.50
SunTrust Bank $ 48,913,043.50
BNP Paribas $ 48,913,043.50
The Royal Bank of Scotland plc $ 48,913,043.50
Wachovia Bank, N.A $ 34,239,130.35
The Bank of Nova Scotia $ 34,239,130.35
The Bank of New York $ 24,456,521.75
Comerica Bank $ 14,673,913.05
TOTAL: $ 450,000,000
Schedule 2.01
