EXHIBIT 10.17.2
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "Second Amendment") is
executed effective as of September 26, 2003 (the "Effective Date"), by and among
Trinity Industries, Inc., a Delaware corporation (the "Borrower"), JPMorgan
Chase Bank, as the Administrative Agent (the "Administrative Agent"), and the
financial institutions parties hereto as Lenders (individually a "Lender" and
collectively the "Lenders").
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent, the Syndication Agents
and the Lenders are parties to that certain Credit Agreement dated as of June 4,
2002, as amended by that certain First Amendment to Credit Agreement dated as of
October 16, 2002 (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 party hereto 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 party hereto 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
"Convertible Preferred Stock," "Equity Contribution," "ETC Indebtedness,"
"Second Amendment," "Second Amendment Closing Date" and "TILC Interest Coverage
Ratio" which shall read in full as follows:
"Convertible Preferred Stock" means the Borrower's 4.5% Series
B Redeemable Convertible Preferred Stock (a) containing the rights and
preferences set forth in the Certificate of Designations of Series B Redeemable
Convertible Preferred Stock of Trinity Industries, Inc. filed with the Secretary
of State of Delaware, and (b) issued pursuant to the Equity Contribution.
"Equity Contribution" means a cash contribution to the equity
capital of the Borrower in an aggregate gross amount equal to $60,000,000, such
contribution being made on June 25, 2003 in connection with the Borrower's
issuance of its Convertible Preferred Stock.
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"ETC Indebtedness" means the Indebtedness evidenced by
Equipment Trust Certificate Financing (Series 12) in an aggregate amount not to
exceed $170,000,000, which Indebtedness is secured by leased rail equipment
pledged to a trustee acting on behalf of the holders of such Equipment Trust
Certificates.
"Second Amendment" means that certain Second Amendment to
Credit Agreement dated as of September 26, 2003, among the Borrower, the
Administrative Agent and the Lenders party thereto.
"Second Amendment Closing Date" means the date on which all
conditions precedent to the effectiveness of the Second Amendment shall have
been satisfied, which date shall be September 26, 2003.
"TILC Interest Coverage Ratio" means, on any day, the ratio of
(a) EBITDA derived from the assets pledged to (i) the TILC Conduit Indebtedness,
and (ii) the ETC Indebtedness for the Rolling Period ending on the then most
recent Quarterly Date to (b) cash interest payments made by the Borrower and its
Subsidiaries on a consolidated basis during such Rolling Period with respect to
the TILC Conduit Indebtedness and/or the ETC Indebtedness during such Rolling
Period.
1.2 AMENDMENT TO DEFINITIONS. The definitions of
"EBITDA," "Interest Coverage Ratio," "Leverage Ratio," "Loan Documents," "TILC
Conduit Indebtedness" and "Total Debt" set forth in Section 1.01 of the Credit
Agreement are amended to read in full as follows:
"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) one-time cash charges in an aggregate amount not to exceed an
amount agreed to by the Lenders based upon existing facts and circumstances;
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. EBITDA will be adjusted on a pro forma basis (determined in
accordance with GAAP) to give effect during applicable historical periods to
Permitted Acquisitions as if such Permitted Acquisitions had been made at the
beginning of the applicable period.
"Interest Coverage Ratio" means, on any day, the ratio of (a)
EBITDA (excluding any EBITDA for such Rolling Period derived from the assets
pledged to (i) the TILC Conduit Indebtedness, (ii) the ETC Indebtedness) for the
Rolling Period ending on the then most recent Quarterly Date less Capital
Expenditures (Non-Leasing Company) (excluding such Capital Expenditures
(Non-Leasing Company) financed with the proceeds of the Equity Contribution) for
such Rolling Period to (b) cash interest payments made by the Borrower and its
Subsidiaries on a consolidated basis during such Rolling Period, excluding any
such interest payments (as applicable) made with respect to the TILC Conduit
Indebtedness and/or the ETC Indebtedness during such Rolling Period.
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"Leverage Ratio" means, on any day, the ratio of (a) Total
Debt of t he Borrower and its Subsidiaries on a consolidated basis as of the
date of determination to (b) EBITDA for the Rolling Period ending on the most
recent Quarterly Date as of the date of determination excluding EBITDA derived
from the assets pledged to (i) the TILC Conduit Indebtedness, and (ii) the ETC
Indebtedness, calculated on a pro forma basis.
"Loan Documents" means this Agreement, the First Amendment,
the Second Amendment, the Notes, the Subsidiary Guaranties, the Security
Instruments, the Intercreditor Agreement, the Letters of Credit, any Borrowing
Request, any Interest Election Request, any Assignment and Acceptance, the Fee
Letter, and all other agreements (including Hedging Agreements) relating to this
Agreement, the Loans, the Lender Indebtedness or the Collateral entered into
from time to time between or among the Borrower (or any or all of its
Subsidiaries) and the Administrative Agent or any Lender (or, with respect to
the Hedging Agreements, any Affiliates of any Lender), and any document
delivered by the Borrower or any of its Subsidiaries in connection with the
foregoing, as such documents, instruments or agreements may be amended, modified
or supplemented from time to time.
"TILC Conduit Indebtedness" means the Indebtedness created or
incurred after the date hereof (including Indebtedness pursuant to the warehouse
facility established by Credit Suisse First Boston, New York Branch and certain
other financial institutions, and any term out of such facility) in favor of a
wholly-owned special purpose subsidiary of TILC in an aggregate amount not to
exceed $600,000,000, such Indebtedness to be (i) used to finance a portion of
the lease fleet owned (or to be owned) by such subsidiary, (ii) secured by such
applicable railcars and associated underlying third party leases, and (iii)
non-recourse to the Borrower.
"Total Debt" means, for any period, all Indebtedness (other
than the TILC Conduit Indebtedness and the ETC 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.
1.3 AMENDMENT TO LETTER OF CREDIT SUBLIMIT. Sections
2.05(b) and 4.02(d) of the Credit Agreement are each amended by deleting the
references to "$100,000,000" in each such section and inserting in lieu thereof
a reference to "$150,000,000."
1.4 AMENDMENT TO PREPAYMENT OF LOANS. Section 2.11 of the
Credit Agreement is amended to add a new clause (f) thereto which shall read in
full as follows:
"(f) Notwithstanding anything to the contrary
contained in this Agreement or in any other Loan Document, on
or prior to the Second Amendment Closing Date, the Borrower
shall make a mandatory prepayment of the Term Loans in an
amount equal to $25,000,000, such prepayment to be applied on
a pro rata basis among the Term Lenders."
1.5 AMENDMENT TO INVESTMENT COVENANT. Section 7.04(f) of
the Credit Agreement is amended to read in full as follows:
"(f) investments existing on the Second Amendment
Closing Date and set forth in Schedule 7.04."
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1.6 AMENDMENT TO RESTRICTED PAYMENTS COVENANT. Section
7.06 of the Credit Agreement is amended to read in full as follows:
"SECTION 7.06 RESTRICTED PAYMENTS. The Borrower will
not, and will not permit any of its Subsidiaries to, declare
or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Borrower may declare and
pay dividends with respect to its capital stock payable solely
in additional shares of its common stock, (b) Subsidiaries may
declare and pay dividends ratably with respect to their
capital stock, (c) the Borrower may make Restricted Payments
pursuant to and in accordance with stock option plans or other
benefit plans for management or employees of the Borrower and
its Subsidiaries, including, without limitation, pursuant to
any severance packages for management or employees of the
Borrower and its Subsidiaries and approved by the Board of
Directors of the Borrower, (d) provided no Default has
occurred which is continuing, the Borrower may, for each
Fiscal Year, commencing with the Fiscal Year ending December
31, 2003, declare and pay dividends in an aggregate amount not
in excess of $15,000,000 (the "Dividend Basket"); provided,
that, in the event the ratings established by S&P and Moody's
for the Index Debt are increased to BBB- (stable)/Ba1 (stable)
or above, and for so long as such Index Debt remains at or
above such level or category with respect to both S&P and
Moody's (and further provided no Default has occurred which is
continuing), the Dividend Basket shall be increased to an
aggregate amount not in excess of $20,000,000 for any Fiscal
Year; provided, further that, in the event the ratings
established by S&P and Moody's for the Index Debt are
increased to BBB- (stable)/Baa3 (stable) or above, and for so
long as such Index Debt remains at or above such level or
category with respect to both S&P and Moody's (and further
provided no Default has occurred which is continuing), the
Dividend Basket shall be increased to an aggregate amount not
in excess of $35,000,000 for any Fiscal Year, and (e) provided
no Default has occurred which is continuing, the Borrower may,
for each Fiscal Year, commencing with the Fiscal Year ending
December 31, 2003, declare and pay dividends (in addition to
those contemplated by clause (d) of this definition) in
respect of its Convertible Preferred Stock in an aggregate
amount not in excess of $3,500,000 (the "CPS Dividend
Basket"); provided, that, in the event the Borrower elects (by
written notice to the Administrative Agent) to reduce the CPS
Dividend Basket, the Dividend Basket shall (subject to the
foregoing terms and conditions) increase (on a dollar for
dollar basis) by an aggregate amount equal to the lesser of
(i) the amount of the reduction to the CPS Dividend Basket,
and (b) $2,000,000."
1.7 AMENDMENTS TO FINANCIAL COVENANTS. Sections 7.09(a),
(b) and (d) of the Credit Agreement are amended to read in full as follows:
"(a) The Borrower will not permit the Interest
Coverage Ratio to be less than the ratio for each Rolling
Period indicated below:
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- -------------------------------------------------------------------
Period Ratio
------ -----
- -------------------------------------------------------------------
Rolling Period ending September 30, 2003 1.75 to 1.00
- -------------------------------------------------------------------
Rolling Period ending December 31, 2003 2.25 to 1.00
- -------------------------------------------------------------------
Rolling Period ending March 31, 2004 2.25 to 1.00
- -------------------------------------------------------------------
Each Rolling Period thereafter 2.75 to 1.00
- -------------------------------------------------------------------
(b) The Borrower will not permit the Leverage
Ratio to be greater than the ratio for each Rolling Period
indicated below:
- -------------------------------------------------------------------
Period Ratio
------ -----
- -------------------------------------------------------------------
Rolling Period ending September 30, 2003 3.50 to 1.00
- -------------------------------------------------------------------
Rolling Period ending December 31, 2003 3.00 to 1.00
- -------------------------------------------------------------------
Each Rolling Period thereafter 2.75 to 1.00
- -------------------------------------------------------------------
(d) The Borrower will not permit the Asset
Coverage Ratio to be less than 2.50 to 1.00 at any time."
1.8 ADDITIONAL FINANCIAL COVENANT. Section 7.09 of the
Credit Agreement is amended to add a new clause (e) thereto which shall read in
full as follows:
"(e) The Borrower will not permit the TILC
Interest Coverage Ratio to be less than 1.50 to 1.00 for each
Rolling Period ending on and after September 30, 2003."
1.9 AMENDMENT TO EXHIBIT E AND SCHEDULE 7.04. Exhibit E
and Schedule 7.04 to the Credit Agreement are each hereby deleted in their
entirety and each replaced by Exhibit E and Schedule 7.04, respectively,
attached to this Second Amendment.
Section 2. EFFECTIVENESS OF AMENDMENT. 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 all 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) the prepayment on the Term
Loans due on or prior to the date hereof pursuant to Section 2.11(f) of the
Credit Agreement (after giving effect to this Second Amendment), (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
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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 Second Amendment and the
transactions contemplated hereby.
Section 4. AMENDMENT FEE. Upon execution of this Second
Amendment by the Required Lenders (any such Lender executing and delivering this
Second Amendment to the Administrative Agent prior to 5:00 p.m. (Dallas, Texas
time) on September 26, 2003, 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 two-tenths of one percent
(.20%) of the aggregate 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 Second Amendment to the Administrative Agent prior to 5:00 p.m. (Dallas,
Texas time) on September 26, 2003.
Section 5. 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 Administrative Agent incurred by the Administrative Agent in
connection with this Second 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 Second
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 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.
6.3 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.
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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 Second Amendment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
7.3 COUNTERPARTS. This Second Amendment may be executed
in counterparts, and all parties need not execute the same counterpart; however,
no party shall be bound by this Second 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 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.
7.5 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 on the
date and year first above written.
[Signature Pages Follow]
7
SIGNATURE PAGE
TO
SECOND 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: /s/ S. Theis Rice
S. Theis Rice,
Vice President, Legal Affairs
[Signature Page]
SIGNATURE PAGE
TO
SECOND 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, as a Revolving
Lender, a Term Lender and as Administrative Agent
By: /s/ Michael J. Lister
Michael J. Lister,
Vice President
[Signature Page]
SIGNATURE PAGE
TO
SECOND 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 Revolving Lender
By: /s/ Deborah Carlson
Name: Deborah Carlson
Title: Director
By: /s/ Stephen Kovach
Name: Stephen Kovach
Title: Vice President
[Signature Page]
SIGNATURE PAGE
TO
SECOND 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
Revolving Lender
By: /s/ David Apps
Name: David Apps
Title: Senior Vice President
[Signature Page]
SIGNATURE PAGE
TO
SECOND 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 Revolving Lender
By: /s/ Randall Taylor
Name: Randall Taylor
Title: Managing Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND 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 Revolving Lender
By: /s/ D. Barnell
Name: D. Barnell
Title: Vice President
By: /s/ J. Mearns
Name: J. Mearns
Title: Vice President and Manager
[Signature Page]
SIGNATURE PAGE
TO
SECOND 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 Revolving Lender
and a Term Lender
By: /s/ Frederick E. Blumer
Name: Frederick E. Blumer
Title: Vice President
[Signature Page]
SIGNATURE PAGE
TO
SECOND 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 Revolving Lender
By: /s/ Jeff Tebeaux
Name: Jeff Tebeaux
Title: Vice President
By: /s/ Henry F. Setina
Name: Henry F. Setina
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CREDIT SUISSE FIRST BOSTON, CAYMAN
ISLANDS BRANCH, as a Revolving Lender
By: /s/ Karl Studer
Name: Karl Studer
Title: Director
By: /s/ Erik Boehmer
Name: Erik Boehmer
Title: Assistant Vice President
[Signature Page]
SIGNATURE PAGE
TO
SECOND 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 Revolving
Lender
By: /s/ Chris J. Allen
Name: Chris J. Allen
Title: Managing Director & Office Head
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
Landmark CDO Limited
By: Aladdin Capital Management LLC
As Manager
By: /s/ Joesph Moroney, CFA
Name: Joesph Moroney, CFA
Title: Authorized Signatory
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
Landmark II CDO Limited
By: Aladdin Capital Management LLC
As Manager
By: /s/ Joesph Moroney, CFA
Name: Joesph Moroney, CFA
Title: Authorized Signatory
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
AMMC CDO I, LIMITED
By: American Money Management Corp.,
as Collateral Manager
By: /s/ David P. Meyer
Name: David P. Meyer
Title: Vice President
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
AMMC CDO II, LIMITED
By: American Money Management Corp.,
as Collateral Manager
By: /s/ David P. Meyer
Name: David P. Meyer
Title: Vice President
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
Gallatin Funding I Ltd.
By: Bear Stearns Asset Management Inc.
as its Collateral Manager
By: /s/ Jonathan Berg
Name: Jonathan Berg
Title: Vice President
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
Atrium CDO
By: /s/ David H. Lerner
Name: David H. Lerner
Title: Authorized Signatory
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
CSAMI
By: /s/ David H. Lerner
Name: David H. Lerner
Title: Authorized Signatory
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
CSAMII
By: /s/ David H. Lerner
Name: David H. Lerner
Title: Authorized Signatory
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
First Dominion Funding I
By: /s/ David H. Lerner
Name: David H. Lerner
Title: Authorized Signatory
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
First Dominion Funding II
By: /s/ David H. Lerner
Name: David H. Lerner
Title: Authorized Signatory
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
Franklin CLO I, Limited
Franklin CLO II, Limited
Franklin CLO III, Limited
Franklin Floating Rate Trust
Franklin Floating Rate Master Serioes
Franklin Floating Rate Daily Access Fund
By: /s/ Richard Hsu
Name: Richard Hsu
Title: Asst. Vice President
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
INDOSUEZ CAPITAL FUNDING VI, LIMITED
By: Indosuez Capital as Collateral Manager
By: /s/ Charles Kobayashi
Name: Charles Kobayashi
Title: Principal and Portfolio Manager
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
ARCHIMEDES FUNDING III. LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Steven Gorsk
Name: Steven Gorsk
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
ARCHIMEDES FUNDING IV (CAYMAN), LTD..
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Steven Gorsk
Name: Steven Gorsk
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
BALANCED HIGH-YIELD FUND II, LTD.
By: ING Capital Advisors LLC,
as Asset Manager
By: /s/ Steven Gorsk
Name: Stevn Gorsk
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
ENDURANCE CLO I, LTD.
C/o ING Capital Advisors LLC,
as Portfolio Manager
By: /s/ Steven Gorsk
Name: Steven Gorsk
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
ORYX CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Steven Gorsk
Name: Steven Gorsk
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC,
as Investment Manager
By: /s/ Steven Gorsk
Name: Steven Gorsk
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Steven Gorsk
Name: Steven Gorsk
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
/s/ James Dingler
Madison Avenue CDO IV, Limited
By Metropolitan Life Insurance Company,
as Collateral Manager
Name: James Dingler
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
/s/ James Dingler
By Metropolitan Life Insurance Company
Name: James Dingler
Title: Director
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
Clydesdale CLO 2001-1, Ltd.
By: /s/ Richard W. Stewart
Name: Richard W. Stewart
Title: Managing Director
Nomura Corporate Research
and Asset Management Inc.
as
Collateral Manager
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
Nomura Bond Loan
By: /s/ Richard W. Stewart
Name: Richard W. Stewart
Title: Managing Director
By: UFJ Trust Bank Limited
as Trustee
By: Nomura Corporate Research and
Asset Management Inc.
Attorney in Fact
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
Octagon Investment Partners III, Ltd.
By: Octagon Credit Investors, LLC
as Portfolio Manager
By: /s/ Michael B. Nechamkin
Name: Steven Gorsk
Title: Portfolio Manager
[Signature Page]
SIGNATURE PAGE
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
TRINITY INDUSTRIES, INC.,
JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT
AND THE FINANCIAL INSTITUTIONS PARTIES THERETO AS LENDERS
CONSENT OF ADDITIONAL TERM LENDERS
The undersigned Term Lenders hereby consent and agree to this Second
Amendment to Credit Agreement.
Protective Life Insurance Company
By: /s/ Diane S. Griswold
Name: Diane S. Griswold
Title: AVP
[Signature Page]
EXHIBIT E
[FORM OF]
COMPLIANCE CERTIFICATE
_____________, 200__
JPMorgan Chase Bank, as Administrative Agent
2200 Ross Avenue, 3rd Floor
Dallas, Texas 75201
Attention: Mike Lister
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 4, 2002 (as
amended, restated, supplemented or otherwise modified and in effect from time to
time, the "Credit Agreement"), by and among Trinity Industries, Inc., a Delaware
corporation ("Borrower"), the Lenders named therein, JPMorgan Chase Bank, as
Administrative Agent to the Lenders ("Administrative Agent"), and the other
Agents named therein. Capitalized terms used herein without definition and which
are defined in the Credit Agreement shall have the respective meanings assigned
to such terms in the Credit Agreement.
Pursuant to Section 6.01(c) of the Credit Agreement, the undersigned Financial
Officer of Borrower hereby certifies to Administrative Agent as follows: (a) the
information furnished in the calculations attached hereto was true and correct
as of the last day of the Fiscal [Year] [Quarter] ended _____________; (b) as of
the date of this Compliance Certificate, there exists no Default or Event of
Default or condition which would, with either or both the giving of notice or
the lapse of time, result in a Default of an Event of Default; and (c) the
financial statements delivered herewith were prepared in accordance with
generally accepted accounting principles applied on a basis consistent with
prior periods.
IN WITNESS WHEREOF, the undersigned officer has executed this Compliance
Certificate as of the date first written above.
TRINITY INDUSTRIES, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Exhibit E-1
COMPLIANCE CERTIFICATE WORKSHEET
1. MINIMUM INTEREST COVERAGE RATIO - SECTION 7.09(a)
(a) consolidated net income $____________
(b) to the extent deducted in the calculation of $____________
consolidated net income, Interest Expense
(c) to the extent deducted in the calculation of $____________
consolidated net income, depreciation and
amortization
(d) to the extent deducted in the calculation of $____________
consolidated net income, income and
franchise tax expenses
(e) to the extent deducted in the calculation of $____________
consolidated net income, one-time cash
charges not to exceed an amount agreed to by
the Lenders
(f) to the extent deducted in the calculation of $____________
consolidated net income, $ non-recurring,
non-cash gains or losses and/or
extraordinary gains or losses, including,
but not limited to, gains or losses on the
disposition of assets (other than in
connection with the sale of rail cars from
the lease fleet in the ordinary course of
business)
(g) EBITDA (the sum of items (a), (b), (c), (d) $____________
and (e) above, minus item (f) above)
(h) EBITDA derived from the assets pledged to $____________
the TILC Conduit Indebtedness and the ETC
Indebtedness
(i) Capital Expenditures (Non-Leasing Company) $____________
(excluding such expenditures $ financed with
the proceeds of the Equity Contribution,
which such expenditures, as of the date
hereof, aggregate $_________)
(j) cash interest payments (excluding such $____________
payments made with respect to $ the TILC
Conduit Indebtedness and the ETC
Indebtedness)
(k) Interest Coverage Ratio (item (g) above less _____ to 1.00
items (h) and (i) above to divided by item
(j) above)
(l) Minimum Interest Coverage Ratio (from _____ to 1.00
Section 7.09(a))
2. MAXIMUM LEVERAGE RATIO - SECTION 7.09(b)
(a) Indebtedness (other than the TILC Conduit $____________
Indebtedness and the ETC Indebtedness)
Exhibit E-2
(b) LC Exposure $____________
(c) Total Debt (item (a) above minus item (b) $____________
above)
(d) EBITDA (from item 1(g) above) less item 1(h) $____________
above
(e) Leverage Ratio (item (c) above divided by ____ to 1.00
item (d) above)
(f) Maximum Leverage Ratio (from Section 7.09(b)) ____ to 1.00
3. MINIMUM NET WORTH - SECTION 7.09(c)
(a) Amount from Section 7.09(c)(i) of the Credit $ 800,000,000
Agreement
(b) cumulative consolidated net income $____________
(c) 50% of item (b) above $____________
(d) 100% of net cash proceeds from the issuance $____________
of Equity
(e) Consolidated Net Worth $____________
(f) Minimum Consolidated Net Worth (the sum of $____________
items (a), (c) and (d) above)
4. MINIMUM ASSET COVERAGE RATIO - SECTION 7.09(d)
(a) Book Value of accounts receivable (net of $____________
applicable reserves)
(b) Book Value of inventory (net of applicable $____________
reserves)
(c) Book Value of property, plant and equipment $____________
(net)
(d) Asset Value (the sum of items (a), (b) and $____________
(c) above)
(e) Aggregate Credit Exposure $____________
(f) Existing LC Exposure $____________
(g) Asset Coverage Ratio (item (d) above divided ____ to 1.00
by the sum of items (e) and (f) above)
(h) Minimum Asset Coverage Ratio 2.50 to 1.00
5. MINIMUM TILC INTEREST COVERAGE RATIO - SECTION 7.09(e)
(a) EBITDA derived from the assets pledged to $____________
the TILC Conduit Indebtedness $ and the ETC
Indebtedness
Exhibit E-3
(b) cash interest payments made with respect to $_____________
the TILC Conduit Indebtedness and the ETC
Indebtedness
(c) TILC Interest Coverage Ratio (item (a) above _____ to 1.00
divided by item (b) above)
(d) Minimum TILC Interest Coverage Ratio (from 1.50 to 1.00
Section 7.09(e))
6. CAPITAL EXPENDITURES -SECTION 7.11
(a) Capital Expenditures (Leasing Company) $_____________
(b) Maximum Capital Expenditures (Leasing $ 150,000,000
Company) per Fiscal Year (from Section 7.11)
Exhibit E-4
SCHEDULE 7.04
EXISTING INVESTMENTS
REMAINING
INVESTMENT
COMPANY INTEREST COMMITMENT
- ------- -------- ----------
Transport Capital 17.0% $ -0-
American Made 48.3 1.7 mil
Communispace 3.0 -0-
Townsend Tarnell 3.5 -0-
GoFigure Technologies 27.0 -0-
Vellis Knowledge 25.0 -0-
EPCAD 25.0 -0-
7th View 21.0 -0-
Q-Hire 15.0 -0-
Media Truck 10.0 -0-
Alpha Biosystems 17.0 -0-
Knowledge 2 Share 50.0 -0-
e-World Freight 5.0 -0-
Iktan 1.0 -0-
WorldO.com 5.0 -0-
Starguide Digital 1.0 -0-
Hybrigen 2.0 -0-
Point to Point 10.0 -0-
-----
TOTAL $ 1.7 MIL
=====
Schedule 7.04 - 1