EXHIBIT 10.18
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JP MORGAN
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
March 10, 2004
among
TRINITY INDUSTRIES, INC.,
as Borrower,
The FINANCIAL INSTITUTIONS NOW OR HEREAFTER PARTIES HERETO,
as Lenders,
JPMORGAN CHASE BANK,
Individually and as Issuing Bank and as Administrative Agent,
and
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
and
THE ROYAL BANK OF SCOTLAND plc,
Individually and as Syndication Agents
Revolving Credit Facility
J.P. MORGAN SECURITIES INC.,
as Sole Lead Arranger and Bookrunner
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TABLE OF CONTENTS
Page No.
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.......................................................................... 2
SECTION 1.02 Classification of Loans and Borrowings................................................. 25
SECTION 1.03 Terms Generally........................................................................ 25
SECTION 1.04 Accounting Terms; GAAP................................................................. 25
ARTICLE II
THE CREDITS
SECTION 2.01 Revolving Commitment................................................................... 26
SECTION 2.02 Revolving Loans and Borrowings......................................................... 26
SECTION 2.03 Requests for Borrowings................................................................ 27
SECTION 2.04 Competitive Bid Procedure.............................................................. 27
SECTION 2.05 Letters of Credit...................................................................... 29
SECTION 2.06 Funding of Borrowings.................................................................. 34
SECTION 2.07 Interest Elections..................................................................... 34
SECTION 2.08 Revolving Credit Notes................................................................. 35
SECTION 2.09 Termination and Reduction of Revolving Commitments; Certain Prepayments................ 36
SECTION 2.10 Repayment of Loans; Evidence of Debt................................................... 36
SECTION 2.11 Prepayment of Loans; Application of Prepayments........................................ 37
SECTION 2.12 Fees................................................................................... 38
SECTION 2.13 Interest............................................................................... 39
SECTION 2.14 Alternate Rate of Interest............................................................. 40
SECTION 2.15 Increased Costs........................................................................ 40
SECTION 2.16 Break Funding Payments................................................................. 42
SECTION 2.17 Taxes.................................................................................. 42
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs............................ 43
SECTION 2.19 Illegality............................................................................. 45
SECTION 2.20 Mitigation Obligations; Replacement of Lenders......................................... 46
SECTION 2.21 Increase of Commitments................................................................ 46
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Organization; Powers................................................................... 47
SECTION 3.02 Authorization; Enforceability.......................................................... 48
SECTION 3.03 Governmental Approvals; No Conflicts................................................... 48
SECTION 3.04 Financial Condition; No Material Adverse Change........................................ 48
SECTION 3.05 Properties............................................................................. 48
SECTION 3.06 Litigation............................................................................. 49
SECTION 3.07 Compliance with Laws and Agreements.................................................... 49
SECTION 3.08 Investment and Holding Company Status.................................................. 49
SECTION 3.09 Taxes.................................................................................. 49
SECTION 3.10 ERISA.................................................................................. 49
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SECTION 3.11 Subsidiaries........................................................................... 50
SECTION 3.12 Burdensome Obligations................................................................. 50
SECTION 3.13 Employee Matters....................................................................... 50
SECTION 3.14 Disclosure............................................................................. 50
SECTION 3.15 Margin Stock........................................................................... 50
SECTION 3.16 Primary Business....................................................................... 51
SECTION 3.17 Environmental Matters.................................................................. 51
SECTION 3.18 Closing Documents...................................................................... 51
SECTION 3.19 Schedules to other Loan Documents...................................................... 52
SECTION 3.20 Senior Indebtedness.................................................................... 52
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date......................................................................... 52
SECTION 4.02 Each Credit Event...................................................................... 54
ARTICLE V
SECURITY
SECTION 5.01 Lender Indebtedness Secured............................................................ 55
SECTION 5.02 Collateral Released.................................................................... 56
SECTION 5.03 Collateral Reinstated.................................................................. 56
SECTION 5.04 Release of Certain Existing Collateral................................................. 56
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01 Financial Statements and Other Information............................................. 57
SECTION 6.02 Notices of Material Events............................................................. 58
SECTION 6.03 Existence; Conduct of Business......................................................... 59
SECTION 6.04 Payment of Obligations................................................................. 59
SECTION 6.05 Maintenance of Properties; Insurance................................................... 59
SECTION 6.06 Books and Records; Inspection Rights................................................... 59
SECTION 6.07 Compliance with Laws................................................................... 60
SECTION 6.08 Use of Proceeds........................................................................ 60
SECTION 6.09 Maintenance of Debt Ratings............................................................ 60
SECTION 6.10 Compliance with Security Instruments................................................... 60
SECTION 6.11 Further Assurances..................................................................... 60
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.01 Indebtedness........................................................................... 61
SECTION 7.02 Liens.................................................................................. 62
SECTION 7.03 Fundamental Changes.................................................................... 62
SECTION 7.04 Investments, Loans, Advances, Guarantees and Acquisitions.............................. 63
SECTION 7.05 Hedging Agreements..................................................................... 64
SECTION 7.06 Restricted Payments.................................................................... 64
SECTION 7.07 Transactions with Affiliates........................................................... 64
SECTION 7.08 Restrictive Agreements................................................................. 64
SECTION 7.09 Financial Covenants.................................................................... 65
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SECTION 7.10 Fiscal Year............................................................................ 65
SECTION 7.11 Capital Expenditures................................................................... 65
SECTION 7.12 Modifications to Senior Unsecured Debt Documents; Payment Restrictions................. 65
ARTICLE VIII
EVENTS OF DEFAULT
ARTICLE IX
AGENTS
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Notices................................................................................ 71
SECTION 10.02 Waivers; Amendments.................................................................... 71
SECTION 10.03 Expenses; Indemnity; Damage Waiver..................................................... 72
SECTION 10.04 Successors and Assigns................................................................. 74
SECTION 10.05 Survival............................................................................... 76
SECTION 10.06 Counterparts; Integration; Effectiveness............................................... 77
SECTION 10.07 Severability........................................................................... 77
SECTION 10.08 Right of Setoff........................................................................ 77
SECTION 10.09 Governing Law; Jurisdiction; Consent to Service of Process............................. 77
SECTION 10.10 WAIVER OF JURY TRIAL................................................................... 78
SECTION 10.11 Headings............................................................................... 78
SECTION 10.12 Confidentiality........................................................................ 78
SECTION 10.13 Interest Rate Limitation............................................................... 79
SECTION 10.14 Arranger; Syndication Agents........................................................... 80
SECTION 10.15 NO ORAL AGREEMENTS..................................................................... 80
SECTION 10.16 USA Patriot Act Notice................................................................. 81
SECTION 10.17 Lender Indebtedness as Senior Indebtedness............................................. 81
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SCHEDULES:
Schedule 1.01 -- Existing Letters of Credit
Schedule 2.01 -- Revolving Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.11 -- Subsidiaries
Schedule 3.13 -- Employee Matters
Schedule 7.01 -- Existing Indebtedness
Schedule 7.02 -- Existing Liens
Schedule 7.03 -- Permitted Asset Sales
Schedule 7.08 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Subsidiary Guaranty
Exhibit C -- Form of Borrowing Request
Exhibit D -- Form of Interest Election Request
Exhibit E -- Form of Compliance Certificate
Exhibit F -- Form of Revolving Credit Note
Exhibit G -- Form of Security Agreement
Exhibit H -- Form of Pledge Agreement
Exhibit I -- Form of Increased Commitment Agreement
Exhibit J -- Form of Certificate of Effectiveness
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LIST OF DEFINED TERMS
Page No.
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$.................................................................................................. 7
ABR................................................................................................ 2
Adjusted LIBO Rate................................................................................. 2
Administrative Agent............................................................................... 2
Administrative Questionnaire....................................................................... 2
Affiliate.......................................................................................... 2
Agents............................................................................................. 2
Aggregate Revolving Commitment..................................................................... 2
Aggregate Revolving Credit Exposure................................................................ 2
Agreement.......................................................................................... 2
Alternate Base Rate................................................................................ 2
Applicable Rate.................................................................................... 3
Arranger........................................................................................... 3
Assessment Rate.................................................................................... 3
Asset Disposition.................................................................................. 4
Assignment and Acceptance.......................................................................... 4
Authorized Officer................................................................................. 4
Availability Period................................................................................ 4
Bailee's Letter.................................................................................... 4
Base CD Rate....................................................................................... 4
Board.............................................................................................. 5
Borrower........................................................................................... 1
Borrowing.......................................................................................... 5
Borrowing Request.................................................................................. 5
Business Day....................................................................................... 5
Capital Expenditures............................................................................... 5
Capital Expenditures (Leasing Company)............................................................. 5
Capital Expenditures (Non-Leasing Company)......................................................... 5
Capital Lease Obligations.......................................................................... 5
Certificate of Effectiveness....................................................................... 5
Change in Control.................................................................................. 6
Change in Law...................................................................................... 6
Class.............................................................................................. 6
Closing Documents.................................................................................. 6
Closing Transactions............................................................................... 6
Code............................................................................................... 6
Collateral......................................................................................... 6
Collateral Agent................................................................................... 6
Competitive Bid.................................................................................... 6
Competitive Bid Rate............................................................................... 7
Competitive Bid Request............................................................................ 7
Competitive Loan................................................................................... 7
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Consolidated Net Worth............................................................................. 7
Consolidated Subsidiaries.......................................................................... 7
Control............................................................................................ 7
Convertible Preferred Stock........................................................................ 7
Current Information................................................................................ 3,7
Current Lender..................................................................................... 7
Debt Offering...................................................................................... 7
Default............................................................................................ 7
Disclosed Matters.................................................................................. 7
dollars............................................................................................ 7
EBITDA............................................................................................. 8
Effective Date..................................................................................... 8
Eligible New Lender................................................................................ 8
Environmental Laws................................................................................. 8
Environmental Liability............................................................................ 8
Equity............................................................................................. 8
ERISA.............................................................................................. 8
ERISA Affiliate.................................................................................... 9
ERISA Event........................................................................................ 9
ETC Indebtedness................................................................................... 9
Eurodollar......................................................................................... 9
Events of Default.................................................................................. 66
Exchange Notes..................................................................................... 9
Excluded Collateral................................................................................ 9
Excluded Taxes..................................................................................... 10
Existing Credit Agreement.......................................................................... 1
Existing Indebtedness.............................................................................. 10
Existing LC Exposure............................................................................... 10
Existing Lenders................................................................................... 1,10
Existing Letters of Credit......................................................................... 10
Federal Funds Effective Rate....................................................................... 10
Fee Letter......................................................................................... 10
Financial Officer.................................................................................. 11
Fiscal Quarter..................................................................................... 11
Fiscal Year........................................................................................ 11
Fixed Rate......................................................................................... 11
Fixed Rate Loan.................................................................................... 11
Foreign Lender..................................................................................... 11
GAAP............................................................................................... 11
Governmental Authority............................................................................. 11
Governmental Rule.................................................................................. 11
Guarantee.......................................................................................... 11
guarantor.......................................................................................... 11
Hazardous Materials................................................................................ 12
Hedging Agreement.................................................................................. 12
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Highest Lawful Rate................................................................................ 79
ICR Capex Exclusion Amount......................................................................... 12
Increase Amount.................................................................................... 12
Increase Notice.................................................................................... 12
Increased Commitment Agreement..................................................................... 13
Indebtedness....................................................................................... 13
Indemnified Taxes.................................................................................. 13
Indemnitee......................................................................................... 73
Indenture.......................................................................................... 13
Index Debt......................................................................................... 13
Information........................................................................................ 79
Information Memorandum............................................................................. 14
Intercreditor Agreement............................................................................ 14
Interest Coverage Ratio............................................................................ 14
Interest Election Request.......................................................................... 14
Interest Expense................................................................................... 14
Interest Payment Date.............................................................................. 14
Interest Period.................................................................................... 15
Issuing Bank....................................................................................... 15
JPMorgan........................................................................................... 15
LC Disbursement.................................................................................... 15
LC Exposure........................................................................................ 15
Lender Affiliate................................................................................... 15
Lender Indebtedness................................................................................ 15
Lenders............................................................................................ 16
Letter of Credit................................................................................... 16
Leverage Ratio..................................................................................... 16
LIBO Rate.......................................................................................... 16
Lien............................................................................................... 16
Loan............................................................................................... 17
Loan Documents..................................................................................... 17
Loans.............................................................................................. 17
Maintenance Capital Expenditures................................................................... 17
Margin............................................................................................. 17
Material Adverse Effect............................................................................ 17
Material Indebtedness.............................................................................. 17
Material Subsidiaries.............................................................................. 18
Material Subsidiary................................................................................ 18
Moody's............................................................................................ 18
Multiemployer Plan................................................................................. 18
Net Cash Proceeds.................................................................................. 18
New York City...................................................................................... 18
Nonrecourse Subsidiary............................................................................. 18
Notes.............................................................................................. 18
Other Taxes........................................................................................ 18
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Participant........................................................................................ 75
PBGC............................................................................................... 18
Permitted Acquisition.............................................................................. 19
Permitted Encumbrances............................................................................. 19
Permitted Investments.............................................................................. 19
Person............................................................................................. 20
Plan............................................................................................... 20
Pledge Agreement................................................................................... 20
Prime Rate......................................................................................... 20
Property........................................................................................... 21
Quarterly Date..................................................................................... 21
Register........................................................................................... 75
Related Parties.................................................................................... 21
Required Lenders................................................................................... 21
Restricted Payment................................................................................. 21
Revolving Commitment............................................................................... 21
Revolving Commitment Termination Date.............................................................. 21
Revolving Credit Exposure.......................................................................... 22
Revolving Credit Note.............................................................................. 22
Revolving Credit Percentage........................................................................ 22
Revolving Loans.................................................................................... 22
Rolling Period..................................................................................... 22
S&P................................................................................................ 22
Security Agreement................................................................................. 22
Security Instruments............................................................................... 22
Security Threshold Rating Level.................................................................... 22
Senior Notes....................................................................................... 22
Senior Unsecured Debt Documents.................................................................... 23
Senior Unsecured Notes............................................................................. 23
Statutory Reserve Rate............................................................................. 23
subsidiary......................................................................................... 23
Subsidiary......................................................................................... 23
Subsidiary Guaranties.............................................................................. 23
Syndication Agents................................................................................. 23
Taxes.............................................................................................. 24
Three-Month Secondary CD Rate...................................................................... 24
TILC............................................................................................... 24
TILC Conduit Indebtedness.......................................................................... 24
TILC Interest Coverage Ratio....................................................................... 24
Total Debt......................................................................................... 24
Transactions....................................................................................... 24
Type............................................................................................... 24
UCC................................................................................................ 25
Withdrawal Liability............................................................................... 25
viii
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement")
is made and entered into as of March 10, 2004, among TRINITY INDUSTRIES, INC., a
Delaware corporation ("Borrower"), JPMORGAN CHASE BANK, individually as a Lender
and Issuing Bank and as Administrative Agent, DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES and THE ROYAL BANK OF SCOTLAND plc, each individually as a
Lender and collectively as Syndication Agents, and each of the lenders that is a
signatory hereto or which hereafter becomes a party hereto as provided in
Section 10.04 (individually, a "Lender" and collectively, "Lenders").
WITNESSETH
WHEREAS, Borrower, JPMorgan Chase Bank, as administrative
agent, and each of the financial institutions party thereto as lenders (the
"Existing Lenders") and agents are parties to that certain Credit Agreement
dated as of June 4, 2002 (as heretofore amended, the "Existing Credit
Agreement"); and
WHEREAS, pursuant to certain assignments, certain Lenders have
purchased and assumed certain of the rights and obligations of certain of the
Existing Lenders under the Existing Credit Agreement; and
WHEREAS, concurrently with the closing and consummation of the
Closing Transactions (as hereinafter defined), the parties hereto desire to
amend and restate the Existing Credit Agreement in its entirety in the form of
this Agreement; and
WHEREAS, subject to and upon the terms and conditions herein
contained, the Lenders are willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and subject to the
satisfaction of each condition precedent contained in Section 4.01 hereof, the
satisfaction of which shall be evidenced by the execution by the Borrower and
the Administrative Agent of the Certificate of Effectiveness (as herein
defined), the parties hereto agree that the Existing Credit Agreement is hereby
amended and restated in its entirety on (and subject to) the terms and
conditions set forth herein. It is the intention of the parties hereto that this
Agreement supersedes and replaces the Existing Credit Agreement in its entirety;
provided, that, (a) such amendment and restatement shall operate to renew, amend
and modify certain of the rights and obligations of the Borrower under the
Existing Credit Agreement and as provided herein, but shall not act as a
novation thereof, and (b) except for Liens (as hereinafter defined) encumbering
the Mortgaged Property (as defined in the Existing Credit Agreement) and the
other Property (as hereinafter defined) of the Borrower and its Subsidiaries (as
hereinafter defined) described on Schedule 5 of the Existing Credit Agreement,
the Liens securing the Lender Indebtedness under and as defined in the Existing
Credit Agreement and the liabilities and obligations of the Borrower and its
Subsidiaries under the Existing Credit Agreement and the Loan Documents (as
therein defined) shall not be extinguished but shall be
1
carried forward and shall secure such indebtedness as renewed, amended, restated
and modified hereby. The parties hereto further agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR," when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/32 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means each of the Administrative Agent, each
Syndication Agent and the Collateral Agent.
"Aggregate Revolving Commitment" means the sum of all of the
Lenders' Revolving Commitments.
"Aggregate Revolving Credit Exposure" means the sum of all of
the Lenders' Revolving Credit Exposures.
"Agreement" means this Amended and Restated Credit Agreement,
as it may be amended, modified, restated or supplemented and in effect from time
to time.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
2
"Applicable Rate" means, for any day, with respect to any
Eurodollar Loan or ABR Loan, or with respect to the facility fees payable
hereunder, the applicable rate per annum set forth below under the caption
"Eurodollar Spread," "ABR Spread" or "Facility Fee Rate" as the case may be,
based upon the Leverage Ratio for the Rolling Period ending on the most recent
Quarterly Date with respect to which the Administrative Agent shall have
received the financial statements and other information (the "Current
Information") required to be delivered to the Administrative Agent pursuant to
Section 6.01(a) or Section 6.01(b) and the compliance certificate required to be
delivered pursuant to Section 6.01(c) in respect of such financial statements:
Eurodollar Facility Fee
Leverage Ratio Spread ABR Spread Rate
-------------- ------ ---------- ----
Less than 1.00 to 1.00 1.000% 0.000% 0.250%
- ----------------------------------------------------------------------------------------------
Greater than or equal to 1.00 to 1.00 1.125% 0.000% 0.375%
but less than 1.50 to 1.00
- ----------------------------------------------------------------------------------------------
Greater than or equal to 1.50 to 1.00 1.250% 0.250% 0.500%
but less than 2.25 to 1.00
- ----------------------------------------------------------------------------------------------
Greater than or equal to 2.25 to 1.00 1.500% 0.500% 0.500%
but less than 2.75 to 1.00
- ----------------------------------------------------------------------------------------------
Greater than or equal to 2.75 to 1.00 1.750% 0.750% 0.500%
Each change in the Applicable Rate based on a change in the
Current Information shall become effective on the date on which Current
Information is delivered to the Lenders pursuant to Section 6.01 (but in any
event not later than the 45th day after the end of each of the first three
quarterly periods of each Fiscal Year or the 90th day after the end of each
Fiscal Year, as the case may be) and shall remain in effect until the next
change to be effected pursuant to this paragraph. If any Current Information is
not delivered within the time periods specified in Section 6.01, then, until
such Current Information is delivered, the Leverage Ratio as of the end of the
Rolling Period that would have been covered thereby shall, for the purposes of
this definition, be deemed to be greater than or equal to 2.75 to 1.00.
Furthermore, and notwithstanding any other provision to the contrary, for the
period from the Effective Date until the date on which the Current Information
for the Rolling Period ending March 31, 2004 is delivered to the Lenders, the
Leverage Ratio as at the end of each Rolling Period during such period shall,
for the purposes of this definition, be deemed to be greater than or equal to
1.50 to 1.00 but less than 2.25 to 1.00.
"Arranger" means J.P. Morgan Securities Inc., in its capacity
as Sole Lead Arranger and Bookrunner.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the
3
meaning of 12 C.F.R. Part 327 (or any successor provision) to the Federal
Deposit Insurance Corporation for insurance by such Corporation of time deposits
made in dollars at the offices of such member in the United States; provided
that if, as a result of any change in any law, rule or regulation, it is no
longer possible to determine the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual rate as shall be determined by the
Administrative Agent to be representative of the cost of such insurance to the
Lenders.
"Asset Coverage Ratio" means, on any day, the ratio of (a)
Asset Value to (b) the sum of (i) Aggregate Revolving Credit Exposure plus (ii)
Existing LC Exposure as of the date of determination.
"Asset Disposition" means any sale, securitization,
assignment, lease, license, exchange, conversion or other disposition by the
Borrower of any of its assets, including pursuant to any casualty or
condemnation proceeding affecting such assets, but excluding (i) any of the
foregoing expressly permitted by Section 7.03 hereof, and (ii) the sale of
inventory in the ordinary course of business.
"Asset Value" means, as of the date of determination, the sum
of the book values of the following for the Borrower and its Subsidiaries
calculated on a consolidated basis and only with respect to that Property which
either (i) has been pledged as Collateral hereunder to secure the Lender
Indebtedness, or (ii) is otherwise unencumbered and free of all Liens (other
than Permitted Encumbrances described in clauses (a) through (f) of the
definition thereof): (a) accounts receivable (net of applicable reserves), and
(b) inventory (net of applicable reserves).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in substantially the form of Exhibit A or any other form approved by the
Administrative Agent.
"Authorized Officer" means the Chairman, the President, the
Chief Financial Officer, any Senior Vice President, any Vice President or the
Treasurer of the Borrower or any Material Subsidiary, as applicable, or any
other officer of the Borrower or any Material Subsidiary specified to the
Administrative Agent in writing by any of the aforementioned officers of the
Borrower or any Material Subsidiary.
"Availability Period" means the period from and including the
Effective Date to but excluding the Revolving Commitment Termination Date.
"Bailee's Letter" means a letter in form and substance
acceptable to the Administrative Agent executed by any Person who is in
possession of inventory on behalf of the Borrower pursuant to which such Person
acknowledges the Administrative Agent's and/or Collateral Agent's Lien with
respect thereto.
"Base CD Rate" means the sum of (a) the Three Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
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"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" shall have the meaning set forth in the initial
paragraph hereof.
"Borrowing" means (a) Loans of the same Type, made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect, or (b) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03, in substantially the form of Exhibit
C or any other form approved by the Administrative Agent.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City or Dallas, Texas are
authorized or required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Expenditures" means, as to any Person for any period,
all expenditures (whether paid in cash or accrued as a liability, including the
portion of Capital Lease Obligations originally incurred during such period that
are capitalized on the consolidated balance sheet of the Borrower) by such
Person and its Subsidiaries during such period that, in conformity with GAAP,
are included in "capital expenditures," "additions to property, plant or
equipment" or comparable items on the consolidated financial statements of such
Person, but excluding expenditures for the restoration, repair or replacement of
any fixed or capital asset that was destroyed or damaged, in whole or in part,
in an amount equal to any insurance proceeds received in connection with such
destruction or damage.
"Capital Expenditures (Leasing Company)" means, for any
period, Capital Expenditures transferred, assigned or otherwise conveyed to
TILC, but excluding Capital Expenditures funded with proceeds of the TILC
Conduit Indebtedness.
"Capital Expenditures (Non-Leasing Company)" means, for any
period, all Capital Expenditures other than Capital Expenditures (Leasing
Company).
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Certificate of Effectiveness" means a Certificate of
Effectiveness in the form of Exhibit J attached hereto to be executed by the
Borrower and the Administrative Agent upon the satisfaction of each of the
conditions precedent contained in Section 4.01 hereof.
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"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
of shares representing more than thirty percent (30)% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Borrower; (b) the occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower nor (ii) appointed by
directors so nominated; (c) the acquisition of direct or indirect Control of the
Borrower by any Person or group; or (d) a "Change of Control" as defined in the
Indenture.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of
such Lender or by such Lender's or the Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"Class," when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Competitive Loans.
"Closing Documents" means the Senior Unsecured Debt Documents
and all other material documents, instruments and agreements executed or
delivered by the Borrower or any of its Subsidiaries in connection with, or
otherwise pertaining to, the Closing Transactions, including all amendments and
modifications thereto.
"Closing Transactions" means the transactions to occur on the
Effective Date pursuant to the Closing Documents and this Agreement, including,
without limitation (i) the execution and delivery of the Senior Unsecured Debt
Documents, and the closing and consummation of the transactions contemplated
thereby pursuant to the terms thereof, and the application of the proceeds
thereof to repay in part the Existing Indebtedness, (ii) the refinancing in
full, with proceeds of a Borrowing under this Agreement, of all Existing
Indebtedness, and (iii) the payment of all fees and expenses of the
Administrative Agent in connection with the credit facility provided herein.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means the Properties of the Borrower and its
Subsidiaries described in and subject to the Liens, privileges, priorities and
security interests created and granted (or purported to have been created and
granted) by any Security Instrument.
"Collateral Agent" means JPMorgan Chase Bank, as collateral
agent under the terms of the Intercreditor Agreement, and its successors and
assigns.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
6
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Consolidated Net Worth" means, at any time and from time to
time, the consolidated shareholder's equity of the Borrower and its
Subsidiaries, determined in accordance with GAAP.
"Consolidated Subsidiaries" means, for any Person, any
subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Convertible Preferred Stock" means the Borrower's 4.5% Series
B Redeemable Convertible Preferred Stock containing the rights and preferences
set forth in the Certificate of Designation of Series B Redeemable Convertible
Preferred Stock of Trinity Industries, Inc. filed with the Secretary of State of
Delaware.
"Current Information" has the meaning set forth in the
definition of "Applicable Rate" in this Section 1.01.
"Current Lender" has the meaning set forth in Section 2.21.
"Debt Offering" means the incurrence by the Borrower of
Indebtedness whether or not occurring in connection with the issuance or sale of
notes, bonds, debentures or other debt securities; provided that the incurrence
of any Indebtedness borrowed under this Agreement or expressly permitted by
Section 7.01 hereof will not constitute a Debt Offering for purposes of this
Agreement.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States
of America.
7
"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 assets 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 any such Permitted Acquisition had been made at the beginning
of the applicable period.
"Effective Date" means March 10, 2004, provided that the
conditions specified in Section 4.01 are satisfied (or waived in accordance with
Section 10.02), and the Borrower and the Administrative Agent have executed and
delivered the Certificate of Effectiveness.
"Eligible New Lender" means (a) a commercial bank organized
under the laws of the United States, or any State thereof, and having primary
capital of not less than $250,000,000, or (b) a commercial bank organized under
the laws of any other country which is a member of the Organization for Economic
Cooperation and Development and having primary capital (or its equivalent) of
not less than $250,000,000 (or its dollar equivalent).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity" means shares of capital stock or a partnership,
profits, capital or member interest, or options, warrants or any other right to
substitute for or otherwise acquire the capital stock or a partnership, profits,
capital or member interest, of the Borrower or any of its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
8
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"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.
"Eurodollar," when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in
Article VIII.
"Exchange Notes" means notes issued under an effective
registration statement relating to an offer to exchange the Senior Notes with
notes having terms identical to the Senior Notes, except that the Exchange Notes
will not be subject to restrictions on transfer or to certain increases in
annual interest rate in the event an exchange offer is not contemplated in a
timely manner.
"Excluded Collateral" means (a) all assets, leases and related
collateral from time to time sold and/or pledged by the Borrower, TILC or any
Subsidiary of the Borrower or TILC in connection with the TILC Conduit
Indebtedness, and (b) all accounts receivable (other than accounts receivable
arising from the sale of assets by TILC, which accounts receivable shall not be
"Excluded Collateral" hereunder) and inventory of TILC.
9
"Excluded Taxes" means, with respect to any Agent, any Lender,
the Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.20(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"Existing Credit Agreement" has the meaning set forth in the
recitals.
"Existing Indebtedness" means all Indebtedness of the Borrower
and its Subsidiaries on the Effective Date under and in connection with the
Existing Credit Agreement.
"Existing LC Exposure" means, at any time, without
duplication, the sum of (a) the aggregate undrawn amount of all outstanding
Existing Letters of Credit at such time plus (b) the aggregate amount of all
payments made by any issuer of an Existing Letter of Credit pursuant to such
Existing Letter of Credit that have not yet been reimbursed by or on behalf of
the Borrower or its Subsidiaries at such time.
"Existing Lenders" has the meaning set forth in the recitals.
"Existing Letters of Credit" means the letters of credit
issued for the account of the Borrower or its Subsidiaries outstanding on the
date hereof and described on Schedule 1.01, including any extensions, renewals
or replacements of such letters of credit that do not increase the amount of
credit or exposure related thereto.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter, dated as of
February 17, 2004, by and among the Borrower, JPMorgan and the Arranger, as such
letter may be amended, supplemented, restated or otherwise modified from time to
time.
10
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Fiscal Quarter" means the fiscal quarter of the Borrower,
ending on the last day of each March, June, September and December of each year.
"Fiscal Year" means the fiscal year of the Borrower, ending on
December 31 of each year.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurodollar Competitive Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Governmental Rule" means any statute, law, regulation,
ordinance, rule, judgment, order, decree, permit, concession, grant, franchise,
license, agreement, directive, requirement of, or other governmental restriction
or any similar binding form of decision of or determination by, or any binding
interpretation or administration of any of the foregoing by, any Governmental
Authority, whether now or hereafter in effect.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term
11
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Highest Lawful Rate" has the meaning set forth in Section
10.13.
"ICR Capex Exclusion Amount" means, for purposes of
calculating the Interest Coverage Ratio during the period commencing on the
Effective Date and continuing through and including September 30, 2006, the sum
of (a) $60,000,000 plus (b) an amount equal to (i) 75% multiplied by (ii) the
difference between (A) the Net Cash Proceeds received by the Borrower on the
Effective Date from the issuance of the Senior Notes, and (B) the Existing
Indebtedness (other than existing LC Exposure) of the Borrower outstanding on
the Effective Date immediately prior to giving effect to the Closing
Transactions. Notwithstanding anything to the contrary contained herein, the ICR
Capex Exclusion Amount shall be solely applicable to actual strategic, long term
Capital Expenditures (Non-Leasing Company) of the Borrower and its Subsidiaries
which do not constitute Maintenance Capital Expenditures. The ICR Capex
Exclusion Amount, as of the Effective Date, shall be set forth in the
certificate of a Financial Officer of the Borrower to be delivered pursuant to
Section 6.01(h)
"Increase Amount" means the total amount by which the Borrower
desires to increase the Aggregate Revolving Commitments pursuant to Section
2.21, which amount shall be (a) an amount not less than the lesser of (i)
$300,000,000 minus the then current amount of the Aggregate Revolving
Commitments, or (ii) $10,000,000, and (b) an amount that is either (i) an
integral multiple of $5,000,000, or (ii) if (but only if) the amount of the
Aggregate Revolving Commitments then in effect is $295,000,000 or more, an
amount equal to the remainder of $300,000,000 minus the amount of the Aggregate
Revolving Commitments then in effect.
"Increase Notice" means a written notice sent by the Borrower
to the Administrative Agent instructing the Administrative Agent that the
Borrower wishes to increase the Aggregate Revolving Commitments hereunder
pursuant to the terms and conditions set forth in Section 2.21, which notice
shall include (a) the identity of the Supplementing Lenders, (b) the Revolving
Commitment Supplement of each Current Lender, if any, (c) the New Revolving
Commitment of each New Lender, if any, (d) the aggregate amount of the Revolving
Commitment Supplements and the New Revolving Commitments, (e) the requested
Revolving Commitment of each Current Lender and New Lender, as the case may be,
after giving effect to such requested increase, and (f) the Increase Amount.
12
"Increased Commitment Agreement" means an Increased Commitment
Agreement, substantially in the form of Exhibit I attached hereto, appropriately
completed and executed by the Borrower, the Administrative Agent and the other
lending institutions party thereto.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances and
(k) liabilities of such Person in respect of any Hedging Agreement, provided
that, for purposes of this definition, such liabilities of such Person in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that such Person would be
required to pay if such Hedging Agreement were terminated at such time. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indenture" means that certain Indenture, dated as of March
10, 2004, by and among the Borrower, each of the Guarantors party thereto and
Wells Fargo Bank, National Association, as Trustee, relating to the issuance of
$300,000,000 of 6.5% Senior Unsecured Notes due 2014.
"Index Debt" means, for any day, (a) with respect to S&P, the
corporate debt rating of the Borrower established by S&P and in effect for such
day, and (b) with respect to Moody's, either (i) the corporate debt rating of
the Borrower established by Moody's and in effect for such day, or (ii) if no
corporate debt rating of the Borrower has been established by Moody's and in
effect for any such day, the senior implied corporate debt rating of the
Borrower based upon the subordinated debt rating of the Borrower established by
Moody's and in effect for such day (i.e., a rating one level higher than the
subordinated debt rating of the Borrower established by Moody's and in effect
for such day).
"Index Debt Ratings" has the meaning set forth in Section
5.01.
13
"Information Memorandum" means the Confidential Information
Memorandum dated February 2004 relating to the Borrower and the Transactions.
"Intercreditor Agreement" means that certain Intercreditor
Agreement to be executed in accordance with Section 4.01(p) by the Borrower,
certain of its Subsidiaries a party thereto, the Collateral Agent, the
Administrative Agent and the Letter of Credit Banks (as defined therein), in the
form approved by the Required Lenders and as the same may be amended or
otherwise modified from time to time.
"Interest Coverage Ratio" means, on any day, the ratio of (a)
EBITDA (excluding any EBITDA for such Rolling Period derived from the assets
pledged to (i) the TILC Conduit Indebtedness, or (ii) the ETC Indebtedness) for
the Rolling Period ending on the then most recent Quarterly Date less Capital
Expenditures (Non-Leasing Company) (excluding the ICR Capex Exclusion Amount;
provided, that, the ICR Capex Exclusion Amount shall be (A) calculated in the
aggregate on a cumulative basis, and (B) permitted and effective only for the
period commencing on the Effective Date and continuing through and including
September 30, 2006) 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.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.07, in
substantially the form of Exhibit D or any other form approved by the
Administrative Agent.
"Interest Expense" means, as to any Person for any period,
without duplication, total interest expenses, whether paid or accrued as
liabilities (including the interest component of Capital Lease Obligations),
with respect to all outstanding Indebtedness, including, without limitation, all
commissions, discounts, and other fees and charges owed with respect to any
financing or letters of credit and net costs under any Hedging Agreement to the
extent that such costs are included within interest expense under GAAP.
"Interest Payment Date" means (a) with respect to any ABR
Loan, each Quarterly Date, (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months' duration after the first day of such
Interest Period, and (c) with respect to any Fixed Rate Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Fixed Rate Borrowing with an Interest Period of more than
90 days' duration (unless otherwise specified in the applicable Competitive Bid
Request), each day prior to the last day of such Interest Period that occurs at
intervals of 90 days' duration after the first day of such Interest Period, and
any other dates that are specified in the applicable Competitive Bid Request as
Interest Payment Dates with respect to such Borrowing.
14
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect, and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than seven days or
more than 180 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; provided, that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means JPMorgan, in its capacity as the issuer
of Letters of Credit hereunder, and its successors in such capacity as provided
in Section 2.05(i). The Issuing Bank may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which
case the term "Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"JPMorgan" means JPMorgan Chase Bank, in its individual
capacity or as an Issuing Bank, as the case may be, and not as Administrative
Agent or Collateral Agent.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, without duplication, the sum
of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Revolving Credit Percentage of the total LC
Exposure at such time.
"Lender Affiliate" means (a) with respect to any Lender (i) an
Affiliate of such Lender, or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or an
Affiliate of such Lender and (b) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Lender Indebtedness" means any and all amounts owing or to be
owing by the Borrower or any Subsidiary to the Administrative Agent, the Issuing
Bank or the Lenders with
15
respect to or in connection with the Loans, any Letter of Credit, the Notes, any
Hedging Agreement, this Agreement, or any other Loan Document and, as to Hedging
Agreements, any and all amounts owing or to be owing by the Borrower or any
Subsidiary thereunder to any Lender or any of its Affiliates.
"Lenders" has the meaning set forth in the opening paragraph
hereof, but shall not include any Person that ceases to be a Lender hereto
pursuant to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant
to this Agreement.
"Leverage Ratio" means (a) for purposes of calculating the
Applicable Rate (but subject in all respects to the terms contained in the
definition of "Applicable Rate" with respect to the delivery (or non-delivery)
of Current Information) for any day, the ratio of (i) Total Debt of the Borrower
and its Subsidiaries on a consolidated basis as of the last day of the Rolling
Period ending on the most recent Quarterly Date with respect to which the
Administrative Agent shall have received the Current Information to (ii) EBITDA
for such Rolling Period, excluding EBITDA derived from the assets pledged to (A)
the TILC Conduit Indebtedness, and (B) the ETC Indebtedness, calculated on a pro
forma basis, and (b) for purposes of calculating the covenant set forth in
Section 7.09(b), for any day, the ratio of (i) Total Debt of the Borrower and
its Subsidiaries on a consolidated basis as of the date of determination to (ii)
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 (A)
the TILC Conduit Indebtedness, and (B) the ETC Indebtedness, calculated on a pro
forma basis. For purposes of calculating the Leverage Ratio for any period, and
provided no Revolving Loans are then outstanding, the Borrower shall be
permitted to net any unrestricted cash then available as provided and set forth
in the Borrower's consolidated balance sheet for such period against Total Debt
of the Borrower then outstanding.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate (rounded
upwards, if necessary, to the next 1/32 of 1%) at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" means any interest in Property securing an obligation
owed to, or claim by, a Person other than the owner of the Property, whether
such interest is based on contract, constitutional, common or statutory law, and
including, but not limited to, the lien or security
16
interest arising from a mortgage, encumbrance, pledge, security agreement,
conditional sale or trust receipt or a lease, consignment or bailment for
security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights of way, covenants, conditions, restrictions,
liens and other statutory, constitutional or common law rights of landlords,
leases and other title exceptions and encumbrances affecting Property. For
purposes of this Agreement, the Borrower and any Subsidiary shall be deemed to
be the owner of any Property which it has acquired or holds subject to a
conditional sale agreement, financing lease or other arrangement pursuant to
which title to the Property has been retained by or vested in some other Person
for security purposes.
"Loan" means a Revolving Loan or a Competitive Loan, and
"Loans" means the Revolving Loans and Competitive Loans or one or more of them
as provided herein.
"Loan Documents" means this Agreement, the Notes, the
Subsidiary Guaranties, the Security Instruments, the Intercreditor Agreement,
the Letters of Credit, any Borrowing Request, any Interest Election Request, any
Assignment and Acceptance, the Fee Letter, and all other agreements (including
Hedging Agreements) relating to this Agreement, the Loans, the Lender
Indebtedness or the Collateral entered into from time to time between or among
the Borrower (or any or all of its Subsidiaries) and the Administrative Agent or
any Lender (or, with respect to the Hedging Agreements, any Affiliates of any
Lender), and any document delivered 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.
"Maintenance Capital Expenditures" means, for any period,
Capital Expenditures (Non-Leasing Company) of the Borrower and its Subsidiaries
during such period for the restoration, repair or maintenance of any fixed or
capital asset of such Person.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Competitive Loan, as specified by the Lender making
such Competitive Loan in its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or condition, financial or otherwise, of
the Borrower and its Material Subsidiaries taken as a whole, (b) the ability of
the Borrower or any Material Subsidiary to perform any of its obligations under
this Agreement or any of the other Loan Documents, (c) the validity or
enforceability of this Agreement or any of the other Loan Documents, (d) the
rights of or benefits available to the Lenders under this Agreement or any of
the other Loan Documents, or (e) the perfection or priority of any Liens
securing the Lender Indebtedness.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
17
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Material Subsidiary" means any Subsidiary of the Borrower
which is organized under the laws of the United States of America, any State
thereof, or the District of Columbia (a) with assets (including, without
limitation, assets of any subsidiary of such Subsidiary) having a book value
equal to or greater than ten percent (10%) of the consolidated assets of the
Borrower and its Subsidiaries, (b) which accounts (together with any subsidiary
of such Subsidiary) for more than ten percent (10%) of the consolidated revenues
of the Borrower and its Subsidiaries, or (c) which accounts (together with any
subsidiary of such Subsidiary) for more than ten percent (10%) of EBITDA of the
Borrower and its Subsidiaries. As of March 10, 2004, "Material Subsidiaries"
means the Subsidiaries set forth (and designated as such) on Schedule 3.11.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means the remainder of (a) the gross
proceeds received by the Borrower from any Asset Disposition, Debt Offering or
issuance of Senior Notes or Equity, less (b) underwriter discounts and
commissions, investment banking fees, legal, accounting and other professional
fees and expenses, and other usual customary transaction costs, in each case
only to the extent paid or payable by the Borrower in cash and related to such
Asset Disposition, Debt Offering or issuance of Senior Notes or Equity.
"New Lender" has the meaning set forth in Section 2.21.
"New Revolving Commitment" has the meaning set forth in
Section 2.21.
"New York City" means New York, New York.
"Nonrecourse Subsidiary" means any Subsidiary which holds a
single Property as its principal asset and the Indebtedness, liabilities and
obligations of which have not been guaranteed or assumed by the Borrower or any
Subsidiary.
"Notes" means the Revolving Credit Notes and any other
promissory note of the Borrower payable to the order of a Lender and issued
hereunder pursuant to Section 2.04(g).
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
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"Permitted Acquisition" means any acquisition by the Borrower
or its Material Subsidiaries of the voting securities or other equity interests,
or all or substantially all of the assets, of any Person (or any division or
product line of such Person), but only so long as (a) no Default shall have
occurred and be continuing at the time of (or would result from) such
acquisition, and (b) the cash amount for such acquisitions does not exceed in
the aggregate, during any Fiscal Year of the Borrower, $75,000,000.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due
or are being contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 6.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) pledges and deposits to secure the performance of
bids, trade contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VIII;
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower or
any Subsidiary; and
(g) Liens, if any, securing the Indebtedness described in
Sections 7.01(a), (h) and (i);
provided that the term "Permitted Encumbrances" shall not (except as otherwise
permitted by clause (g) of this definition) include any Lien securing
Indebtedness.
"Permitted Investments" means:
(a) obligations issued or directly and fully guaranteed
or insured by the government of the United States of America (or by any
agency or instrumentality thereof), in each case maturing within one
year from the date of acquisition thereof;
19
(b) investments in commercial paper maturing within 270
days from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (a)
above and entered into with a financial institution satisfying the
criteria described in clause (c) above;
(e) money market funds that (i) comply with the criteria
set forth in Securities and Exchange Commission Rule 2a-7 under the
Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Moody's, and (iii) have portfolio assets of at least $5,000,000,000;
(f) investments in auction rate securities with a rating
of AAA or higher and a maximum maturity of one year, for which the
reset date will be used to determine the maturity date; and
(g) investments (in addition to those contemplated by
clauses (a), (b), (c), (d), (e) and (f) of this definition, but
expressly excluding any repurchase of the stock or other securities of
the Borrower) measured at cost on a cumulative basis from and after the
date of this Agreement not exceeding, at any time, $5,000,000.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means one or more pledge agreements to be
executed and delivered pursuant to Section 4.01(e), Article V, Section 6.01(f)
and/or the Intercreditor Agreement by the Borrower and certain of its
Subsidiaries, substantially in the form of Exhibit H (with applicable conforming
changes), as amended, supplemented, restated or otherwise modified from time to
time.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan as its prime rate in effect at its
principal office in New York City; each
20
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed.
"Quarterly Date" means the last day of each March, June,
September and December in each year.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means Lenders having fifty-one percent
(51%) or more of the Aggregate Revolving Commitment at such time, until
terminated, and thereafter Lenders having fifty-one percent (51%) or more of the
Aggregate Revolving Credit Exposure; provided that, for purposes of declaring
the Revolving Loans to be due and payable pursuant to Article VIII, and for all
purposes after the Revolving Loans become due and payable pursuant to Article
VIII or the Revolving Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be added to their respective Revolving
Credit Exposures and to the Aggregate Revolving Credit Exposure in determining
the Required Lenders.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock of
the Borrower or any option, warrant or other right to acquire any such shares of
capital stock of the Borrower.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.09, (b)
increased from time to time pursuant to Section 2.21, (c) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04, and (d) terminated pursuant to Article VIII. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Commitment. The initial Aggregate Revolving Commitment is
$250,000,000.
"Revolving Commitment Supplement" has the meaning set forth in
Section 2.21.
"Revolving Commitment Termination Date" means the earliest of:
(a) March 10, 2007; (b) the date on which all of the Revolving Commitments are
terminated in full or reduced
21
to zero pursuant to Section 2.09; and (c) the date on which the Revolving
Commitments otherwise are terminated in full and reduced to zero pursuant to the
terms of Article VIII. Upon the occurrence of any event described in clause (b)
or (c), the Revolving Commitments shall terminate automatically and without any
further action.
"Revolving Credit Exposure" means, at any time and as to each
Lender, the sum of (a) the aggregate principal amount of Revolving Loans (other
than any Competitive Loans) made by such Lender outstanding at such time plus
(b) such Lender's Revolving Credit Percentage of the aggregate amount of all LC
Exposure at such time.
"Revolving Credit Note" means a promissory note of the
Borrower described in Section 2.08 payable to the order of any Lender and being
substantially in the form of Exhibit F, evidencing the aggregate Indebtedness of
the Borrower to such Lender resulting from Revolving Loans made by such Lender,
as any such promissory note may be amended, endorsed, or otherwise modified from
time to time, and also means all other promissory notes accepted from time to
time in substitution thereof or renewal thereof.
"Revolving Credit Percentage" means, as to any Lender, the
percentage of the Aggregate Revolving Commitment constituted by its Revolving
Commitment (or, if the Revolving Commitments have terminated or expired, the
percentage which such Lender's Revolving Credit Exposure at such time
constitutes of the Aggregate Revolving Credit Exposure at such time).
"Revolving Loans" means the loans provided for in Section
2.01.
"Rolling Period" means any period of four consecutive Fiscal
Quarters.
"S&P" means Standard & Poor's.
"Security Agreement" means one or more security agreements to
be executed and delivered pursuant to Section 4.01(d), Article V and/or the
Intercreditor Agreement by the Borrower and certain of its Subsidiaries,
substantially in the form of Exhibit G, as amended, supplemented, restated or
otherwise modified from time to time.
"Security Instruments" means all 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 Lender
Indebtedness, as any of the foregoing may be amended, modified, restated or
supplemented from time to time.
"Security Threshold Rating Level" means an Index Debt Rating
as established by either S&P or Moody's of BB+ /Ba1, respectively.
"Senior Notes" means the senior unsecured notes issued
pursuant to the Indenture in an aggregate amount of up to $300,000,000.
22
"Senior Unsecured Debt Documents" means the Indenture, the
Senior Unsecured Notes, and all other agreements, documents or instruments
executed and delivered by the Borrower or any of its Subsidiaries in connection
with, or pursuant to, the issuance of the Senior Unsecured Notes.
"Senior Unsecured Notes" means the Senior Notes and the
Exchange Notes issued pursuant to the Indenture in an aggregate amount of up to
$300,000,000.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal
time deposits in dollars of over $100,000 with maturities approximately equal to
three months, and (b) with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
Regulation D of the Board. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D of the Board or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guaranties" means the guaranties of the Lender
Indebtedness, executed and delivered pursuant to Section 4.01(c) and/or Section
6.01(f), substantially in the form of Exhibit B, given by each of the Material
Subsidiaries, as amended, supplemented, restated or otherwise modified from time
to time.
"Supplementing Lenders" has the meaning set forth in Section
2.21.
"Syndication Agents" means Dresdner Bank AG, New York and
Grand Cayman Branches and The Royal Bank of Scotland plc, in their capacities as
syndication agents for the Lenders hereunder.
23
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"TILC" means Trinity Industries Leasing Company, a Delaware
corporation, and a wholly-owned Subsidiary of the Borrower.
"TILC Conduit Indebtedness" means the Indebtedness created or
incurred (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) by TILC or in favor of a
wholly-owned special purpose subsidiary of TILC, such Indebtedness to be (i)
used to finance a portion of the lease fleet owned (or to be owned) by TILC or
such subsidiary, (ii) secured by such applicable assets and associated
underlying third party leases, and (iii) non-recourse to the Borrower or any
Material Subsidiary (other than TILC).
"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 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.
"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.
"Transactions" means the execution, delivery and performance
by the Borrower and its Material Subsidiaries of this Agreement and the other
Loan Documents, the borrowing of the Loans, the use of the proceeds thereof and
the issuance of Letters of Credit hereunder.
"Type," when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO
Rate or a Fixed Rate.
24
"UCC" means the Uniform Commercial Code as from time to time
in effect in the State of Texas or, where specifically applicable to the
Borrower, any Subsidiary or Collateral, any other relevant state.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein," "hereof" and "hereunder," and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
25
ARTICLE II
THE CREDITS
SECTION 2.01 Revolving Commitment. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrower
from time to time during the Availability Period in an aggregate principal
amount that will not result in (i) such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving Commitment or (ii) the sum of the Aggregate
Revolving Credit Exposure plus the aggregate principal amount of outstanding
Competitive Loans exceeding the Aggregate Revolving Commitment. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02 Revolving Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with
their respective Revolving Commitments. Each Competitive Loan shall be made in
accordance with the procedures set forth in Section 2.04. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Revolving Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $2,000,000 and not less than $10,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $2,000,000 and not less than $10,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Aggregate Revolving Commitment or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Subject
to Section 2.04(d), each Competitive Borrowing shall be in an aggregate amount
that is an integral multiple of $2,000,000 and not less than $10,000,000.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of five
Eurodollar Borrowings outstanding.
(d) The Borrower shall not be entitled to request any Borrowing
after the Revolving Commitment Termination Date, or to elect to convert or
continue any Borrowing if the Interest Period requested with respect thereto
would end after the Revolving Commitment Termination Date.
26
SECTION 2.03 Requests for Borrowings. To request a Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., Dallas, Texas
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 10:00 a.m., Dallas, Texas time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request executed by an
Authorized Officer of the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section 2.03, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Revolving Loan to be made as part of the requested
Borrowing.
SECTION 2.04 Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein,
from time to time during the Availability Period the Borrower may request
Competitive Bids and may (but shall not have any obligation to) accept
Competitive Bids and borrow Competitive Loans; provided that (1) the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
$50,000,000, and (2) the sum of the Aggregate Revolving Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans at any time
shall not exceed the Aggregate Revolving Commitment. To request Competitive
Bids, the Borrower shall notify the Administrative Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
Dallas, Texas time, four Business Days before the date of the proposed Borrowing
and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., Dallas,
Texas time, one Business Day before the date of the proposed Borrowing; provided
that the Borrower may submit up to (but not more than) two (2) Competitive Bid
Requests on the same day, but a Competitive Bid Request shall not be made within
five Business Days after the date of any
27
previous Competitive Bid Request, unless any and all such previous Competitive
Bid Requests shall have been withdrawn or all Competitive Bids received in
response thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in a form approved by the Administrative Agent
and executed by an Authorized Officer of the Borrower. Each such telephonic and
written Competitive Bid Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar
Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such
Borrowing, which shall be a period contemplated by the definition of
the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section 2.04, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation
to) make one or more Competitive Bids to the Borrower in response to a
Competitive Bid Request. Each Competitive Bid by a Lender must be in a form
approved by the Administrative Agent and must be received by the Administrative
Agent by telecopy, in the case of a Eurodollar Competitive Borrowing, not later
than 9:30 a.m., Dallas, Texas time, three Business Days before the proposed date
of such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not
later than 9:30 a.m., Dallas, Texas time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform substantially to the
form approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $10,000,000 and an integral multiple of
$2,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Competitive
Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or
Competitive Bid Rates at which the Lender is prepared to make such Competitive
Loan or Competitive Loans (expressed as a percentage rate per annum in the form
of a decimal to no more than four decimal places) and (iii) the Interest Period
applicable to each such Competitive Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
28
(d) Subject only to the provisions of this Section
2.04(d), the Borrower may accept or reject any Competitive Bid. The Borrower
shall notify the Administrative Agent by telephone, confirmed by telecopy in a
form approved by the Administrative Agent, whether and to what extent it has
decided to accept or reject each Competitive Bid, in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., Dallas, Texas time, three
Business Days before the date of the proposed Competitive Borrowing, and in the
case of a Fixed Rate Borrowing, not later than 10:30 a.m., Dallas, Texas time,
on the proposed date of the Competitive Borrowing; provided that (i) the failure
of the Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if the Borrower rejects a Competitive Bid made
at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive
Bids accepted by the Borrower shall not exceed the aggregate amount of the
requested Competitive Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (iii) above, the
Borrower may accept Competitive Bids at the same Competitive Bid Rate in part,
which acceptance, in the case of multiple Competitive Bids at such Competitive
Bid Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of $10,000,000 and an integral multiple of
$2,000,000; provided further that if a Competitive Loan must be in an amount
less than $10,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $2,000,000 or any integral multiple
thereof, and in calculating the pro rata allocation of acceptances of portions
of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to
clause (iv), the amounts shall be rounded to integral multiples of $2,000,000 in
a manner determined by the Borrower. A notice given by the Borrower pursuant to
this Section 2.04(d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Administrative Agent pursuant to paragraph (b) of this Section 2.04.
(g) Any Lender which makes a Competitive Loan hereunder
may request that such Competitive Loan be evidenced by a promissory note. In
such event, the Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender and in a form approved by
the Administrative Agent.
SECTION 2.05 Letters of Credit.
(a) General. Subject to the terms and conditions set
forth herein, the Borrower may request the issuance of Letters of Credit for its
own account, in a form reasonably
29
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section 2.05), the amount of such Letter of Credit, the name and address
of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit application on
the Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $150,000,000, (ii) the sum of the Aggregate Revolving Credit Exposure
plus the aggregate principal amount of outstanding Competitive Loans shall not
exceed the Aggregate Revolving Commitment and (iii) no Default shall have
occurred and be continuing.
(c) Expiration Date. Each Letter of Credit shall expire
at or prior to the close of business on the date that is five Business Days
prior to the Revolving Commitment Termination Date.
(d) Participations. By the issuance of a Letter of Credit
(or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
the Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Revolving Credit Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Issuing Bank, such Lender's
Revolving Credit Percentage of each LC Disbursement made by the Issuing Bank and
not reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section 2.05, or of any reimbursement payment required to be refunded to
the Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this Section 2.05(d) in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or reduction
or
30
termination of the Revolving Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, Dallas, Texas time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., Dallas, Texas time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, Dallas, Texas time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., Dallas, Texas time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
the Borrower may, subject to the conditions to Borrowing set forth herein,
request in accordance with Section 2.03 that such payment be financed with an
ABR Borrowing in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Borrowing. If the Borrower fails to make such payment when
due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Lender's Revolving Credit Percentage thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its Revolving Credit
Percentage of the unreimbursed LC Disbursement, in the same manner as provided
in Section 2.06 with respect to Revolving Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this Section
2.05(e), the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to this Section
2.05(e) to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank
as their interests may appear. Any payment made by a Lender pursuant to this
Section 2.05(e) to reimburse the Issuing Bank for any LC Disbursement (other
than the funding of ABR Loans as contemplated above) shall not constitute a
Revolving Loan and shall not relieve the Borrower of its obligation to reimburse
such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section 2.05
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section 2.05(f),
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower's obligations hereunder. Neither the Agents, the Lenders
nor the Issuing Bank, nor any of their Related Parties, shall have any liability
or responsibility by reason
31
of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any
LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such
LC Disbursement, at the rate per annum then applicable to ABR Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section 2.05, then Section 2.13(d) shall apply.
Interest accrued pursuant to this Section 2.05(h) shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (e) of this Section 2.05 to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may
be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing
32
Bank pursuant to Section 2.12(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If (i) any Event of Default
shall occur and be continuing, on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Revolving Loans has been accelerated, Lenders with LC Exposure
representing not less than fifty-one percent (51%) of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this Section 2.05(j),
and/or otherwise (ii) on the Revolving Commitment Termination Date, the Borrower
shall deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VIII. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement, and the Borrower will, in connection therewith, execute
and deliver such security and pledge agreements in form and substance
satisfactory to the Administrative Agent which the Administrative Agent may, in
its discretion, require. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Revolving Loans has been
accelerated (but subject to the consent of Lenders with LC Exposure representing
not less than fifty-one percent (51%) of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement, and the Borrower
will, in connection therewith, execute and deliver such security and pledge
agreements in form and substance satisfactory to the Administrative Agent which
the Administrative Agent may, in its discretion, require. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
33
SECTION 2.06 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds by 12:00 noon, Dallas, Texas time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in Dallas, Texas and
designated by the Borrower; provided that ABR Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's share
of such Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with paragraph (a) of this
Section 2.06 and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of (A) the Federal Funds
Effective Rate and (B) a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Revolving Loan included in such Borrowing.
SECTION 2.07 Interest Elections.
(a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request (or an ABR Borrowing if no Type is
specified) and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section 2.07. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. This Section 2.07 shall not apply to
Competitive Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section 2.07,
the Borrower shall notify the Administrative Agent of such election by telephone
by the time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly
34
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request executed by an Authorized Officer of the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each applicable Lender of the
details thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.08 Revolving Credit Notes. The Borrower's obligation to pay
the principal of, and interest on, the Revolving Loans made by each Lender shall
be further evidenced by the Borrower's issuance, execution and delivery of a
Revolving Credit Note payable to the order of each such Lender in the amount of
such Lender's Revolving Credit Commitment, and shall be dated as of the date of
issuance of such Revolving Credit Note. The principal amount of each Revolving
Credit Note shall be payable on or before the Revolving Commitment Termination
Date.
35
SECTION 2.09 Termination and Reduction of Revolving Commitments;
Certain Prepayments.
(a) Unless previously terminated, the Revolving
Commitment of each Lender shall terminate on the Revolving Commitment
Termination Date applicable to such Lender's Revolving Commitment.
(b) In the event the Borrower shall receive Net Cash
Proceeds from any Asset Disposition or any Debt Offering, an amount equal to
seventy-five percent (75%) of such Net Cash Proceeds shall be applied on such
date to the reduction of the Revolving Commitments as set forth in Section
2.11(e).
(c) The Borrower may at any time terminate, or from time
to time reduce, the Revolving Commitments; provided that (i) each reduction of
the Revolving Commitments shall be in an amount that is an integral multiple of
$2,000,000 and not less than $10,000,000, and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11(b),
the sum of the Aggregate Revolving Credit Exposure plus the aggregate principal
amount of outstanding Competitive Loans would exceed the Aggregate Revolving
Commitment.
(d) The Borrower shall notify the Administrative Agent of
any election to terminate or reduce the Revolving Commitments under paragraph
(c) of this Section 2.09 at least three Business Days prior to the effective
date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section 2.09(d) shall be
irrevocable; provided that a notice of termination of the Revolving Commitments
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Subject to
Section 2.21, any termination or reduction of the Revolving Commitments shall be
permanent. Each reduction of the Revolving Commitments shall be made ratably
among the Lenders in accordance with their respective Revolving Commitments.
SECTION 2.10 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay
(i) to the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan and Borrowing of such Lender on the
Revolving Commitment Termination Date, (ii) to the Administrative Agent for the
account of each Lender thereof, the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to such
Competitive Loan, and (iii) the amounts specified in Sections 2.08 and 2.11 on
the dates specified in each such Section. The Borrower hereby further agrees to
pay interest on the unpaid principal amount of the Loans made to the Borrower,
from time to time outstanding from the date hereof until payment in full thereof
at the rates per annum, and on the dates set forth in Section 2.13.
36
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant
to paragraph (b) or (c) of this Section 2.10 shall be prima facie evidence of
the existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
SECTION 2.11 Prepayment of Loans; Application of Prepayments.
(a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing in whole or in part; provided that (i)
each prepayment pursuant to this Section 2.11(a) shall be in an amount that is
an integral multiple of $2,000,000 and not less than $10,000,000, (ii) each
prepayment pursuant to this Section 2.11(a) shall be subject to prior notice in
accordance with paragraph (d) of this Section 2.11, (iii) the Borrower shall pay
any and all costs and expenses due to the Lenders pursuant to Section 2.16 at
the time of such prepayment, and (iv) the Borrower shall not have the right to
prepay any Competitive Loan without the prior consent of the Lender thereof.
(b) The Borrower shall, from time to time, upon demand of
the Administrative Agent, prepay the Revolving Loans in such amounts as shall be
necessary so that at all times the sum of the Aggregate Revolving Credit
Exposure plus the aggregate principal amount of outstanding Competitive Loans is
equal to or less than the Aggregate Revolving Commitment.
(c) At any time the Borrower becomes obligated to prepay
all or part of the Senior Unsecured Notes, the Borrower shall, prior to any
prepayment of the Senior Unsecured Notes, prepay the Loans and reduce the
Revolving Commitments in full.
(d) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., Dallas, Texas
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., Dallas, Texas time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid (which amount shall be in a
minimum principal amount of $10,000,000 and in $2,000,000 increments in excess
thereof); provided that, if a
37
notice of prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.09(d),
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.09(d). Promptly following receipt of any
such notice relating to a Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13.
(e) Amounts to be applied in connection with Revolving
Commitment reductions made pursuant to Section 2.09(b) shall be applied to
reduce permanently the Revolving Commitments, any such reduction to be applied
proportionately to the Revolving Commitment of each Lender. Any such reduction
of the Revolving Commitment shall be accompanied by a prepayment of the
Revolving Loans to the extent required by Section 2.11(b). Subject to the terms
hereof, each prepayment of Loans and reduction of the Revolving Commitment shall
be made ratably among the Lenders in accordance with their Revolving
Commitments. The application of any prepayment of the Loans shall be applied
first to ABR Loans and then to Eurodollar Loans next maturing.
SECTION 2.12 Fees.
(a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Revolving Commitment of such Lender
(whether used or unused) during the period from and including the Effective Date
to but excluding the Revolving Commitment Termination Date applicable to such
Lender's Revolving Commitment. Accrued facility fees shall be payable in arrears
on each Quarterly Date of each year and on the Revolving Commitment Termination
Date, commencing on the first such date to occur after the Effective Date. All
facility fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative
Agent for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Revolving Commitment terminates and the date on which such Lender ceases to have
any LC Exposure, and (ii) to the Issuing Bank upon issuance of any Letter of
Credit by such Issuing Bank a fronting fee equal to an amount calculated at the
rate of 0.125% per annum based on the stated amount and term of such Letter of
Credit, as well as the Issuing Bank's standard fees with respect to the
administration, issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees shall be payable
in arrears on the third Business Day following each Quarterly Date, commencing
on the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the Revolving Commitments terminate
and any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this Section 2.12(b) shall be
38
payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at the times
separately agreed upon in writing between the Borrower and the Administrative
Agent (including, without limitation, all fees due and payable pursuant to the
terms of the Fee Letter).
(d) All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent (or to the
Issuing Bank, in the case of fees payable to it) for distribution, in the case
of facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13 Interest.
(a) Subject to Section 10.13, the Loans comprising each
ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
(b) Subject to Section 10.13, the Loans comprising each
Eurodollar Borrowing shall bear interest (i) in the case of a Eurodollar Loan,
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate, or (ii) in the case of a Eurodollar Competitive Loan,
at the LIBO Rate for the Interest Period in effect for such Borrowing plus (or
minus, as applicable) the Margin applicable to such Loan.
(c) Subject to Section 10.13, each Fixed Rate Loan shall
bear interest at the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, but subject to Section
10.13, if any principal of or interest on any Loan or any fee or other amount
payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section 2.13 or
(ii) in the case of any other amount, 2% plus the Alternate Base Rate.
(e) Subject to Section 10.13, accrued interest on each
Loan shall be payable in arrears on each Interest Payment Date for such Loan;
provided that (i) interest accrued pursuant to paragraph (d) of this Section
2.13 shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan prior to the end
of the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion.
(f) Subject to Section 10.13, all interest hereunder
shall be computed on the basis of a year of 360 days, except that interest
computed by reference to the Alternate Base Rate
39
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.14 Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such Interest Period;
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender that is
required to make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period; or
(c) the Administrative Agent determines that by reason of
circumstances affecting the interbank dollar market generally, deposits in U.S.
Dollars in the relevant interbank dollar market are not being offered for the
applicable Interest Period and in an amount equal to the amount of the
Eurodollar Loan requested by the Borrower;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
(ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing
shall be made as an ABR Borrowing and (iii) any request by the Borrower for a
Eurodollar Competitive Borrowing shall be ineffective; provided that (A) if the
circumstances giving rise to such notice do not affect all the Lenders, then
requests by the Borrower for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby and (B) if the circumstances giving rise
to such notice affect only one Type of Borrowings, then the other Type of
Borrowings shall be permitted.
SECTION 2.15 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
40
(ii) impose on any Lender or the Issuing Bank or the
London interbank market any other condition affecting this Agreement or
Eurodollar Loans or Fixed Rate Loans made by such Lender or any Letter
of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section 2.15 shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section 2.15 shall not
constitute a waiver of such Lender's or the Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be required to compensate a
Lender or the Issuing Bank pursuant to this Section 2.15 for any increased costs
or reductions incurred more than 270 days prior to the date that such Lender or
the Issuing Bank, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender's or the
Issuing Bank's intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this
Section 2.15, a Lender shall not be entitled to compensation pursuant to this
Section 2.15 in respect of any Competitive
41
Loan if the Change in Law that would otherwise entitle it to such compensation
shall have been publicly announced prior to submission of the Competitive Bid
pursuant to which such Loan was made.
SECTION 2.16 Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan or Fixed Rate Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an Event
of Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(d) and is revoked in accordance therewith), (d) the failure
to borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan other than
on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.20, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section 2.16 shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.17 Taxes.
(a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.17) the Administrative Agent, each
Lender or the Issuing Bank (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative
Agent, each Lender and the Issuing Bank, within 10 days after written demand
therefor, for the full amount of any
42
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or the Issuing Bank, as the case may be, on or with respect to any payment by or
on account of any obligation of the Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section 2.17) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) The Borrower shall make each payment required to be
made by it hereunder (whether of principal, interest, fees or reimbursement of
LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon, Dallas, Texas time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 1 Chase Manhattan
Plaza, 8th Floor, New York, New York 10081, except payments to be made directly
to the Issuing Bank as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in dollars.
(b) Each Borrowing of Revolving Loans shall be made, each
payment on account of any facility fee or participation fee in respect of the
Revolving Commitments hereunder shall be allocated by the Administrative Agent,
and any reduction of the Revolving
43
Commitments of the Lenders shall be allocated by the Administrative Agent, pro
rata according to the relevant Revolving Credit Percentages of the Lenders. Each
payment (including each prepayment) on account of principal of and interest on
any Revolving Loans shall be allocated by the Administrative Agent pro rata
according to the respective outstanding principal amounts of such Revolving
Loans then held by the Lenders. Further, if at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts
of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal and unreimbursed LC Disbursements then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
All proceeds (including proceeds from the realization upon the Collateral)
received after acceleration of the maturity of the Loans, shall be applied
first, to reimbursement of expenses and indemnities provided for in this
Agreement and the other Loan Documents, second, to the other Lender Indebtedness
until repaid in full pro rata to each Lender, and third, to any other Person
entitled to receive such proceeds in accordance with applicable law.
(c) If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Loans or participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans and participations in LC Disbursements of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and participations
in LC Disbursements; provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, unless the Lender from which such payment is
recovered is required to pay interest thereon, in which case each Lender
returning funds to such Lender shall pay its pro rata share of such interest,
and (ii) the provisions of this Section 2.18(c) shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this Section 2.18(c) shall apply). The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such
44
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required
to be made by it pursuant to Section 2.05(d) or (e), 2.06(b), 2.18(d) or
10.03(e), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19 Illegality.
(a) Notwithstanding any other provision of this Agreement
to the contrary, if (i) by reason of the adoption of any applicable Governmental
Rule or any change (after the Effective Date) in any applicable Governmental
Rule or in the interpretation or administration thereof by any Governmental
Authority or compliance by any Lender with any request or directive (whether or
not having the force of law) of any central bank or other Governmental Authority
or (ii) circumstances affecting the London interbank dollar market or the
position of a Lender therein shall at any time make it unlawful or impracticable
in the sole discretion of a Lender exercised in good faith for such lender or
its applicable lending office to (A) honor its obligation to make Eurodollar
Loans either generally or for a particular Interest Period provided for
hereunder, or (B) maintain Eurodollar Loans either generally or for a particular
Interest Period provided for hereunder, then such Lender shall promptly notify
the Borrower thereof through the Administrative Agent and such Lender's
obligation to make or maintain Eurodollar Loans having an affected Interest
Period hereunder shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans having an affected Interest Period (in which
case the provisions of Section 2.19(b) hereof shall be applicable). Before
giving such notice pursuant to this Section 2.19(a), such Lender will designate
a different available lending office for the affected Eurodollar Loans of such
Lender or take such other action as the Borrower may request if such designation
or action will avoid the need to suspend such Lender's obligation to make
Eurodollar Loans hereunder and will not, in the sole opinion of such Lender
exercised in good faith, be disadvantageous to such Lender (provided, that such
Lender shall have no obligation to so designate a lending office for Eurodollar
Loans located in the United States of America).
(b) If the obligation of any Lender to make or maintain
any Eurodollar Loans shall be suspended pursuant to Section 2.19(a) hereof, all
Loans having an affected Interest Period which would otherwise be made by such
Lender as Eurodollar Loans shall be made instead as ABR Loans (and, if such
Lender so requests by notice to the Borrower with a copy to the Administrative
Agent, each Eurodollar Loan having an affected Interest Period of such Lender
then outstanding shall be automatically converted into an ABR Loan on the last
day of the
45
Interest Period for such Eurodollar Loans unless earlier conversion is required
by applicable law) and, to the extent that Eurodollar Loans are so made as (or
converted into) ABR Loans, all payments of principal which would otherwise be
applied to such Eurodollar Loans shall be applied instead to such ABR Loans.
SECTION 2.20 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section
2.15, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
2.17, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17,
as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section
2.15, (ii) the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
2.17, (iii) any Lender defaults in its obligation to fund Loans hereunder, or
(iv) any Lender suspends its obligation to maintain or fund Eurodollar Loans
under Section 2.19, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Commitment is being assigned, the Issuing Bank),
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
(other than Competitive Loans) and participations in LC Disbursements, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.21 Increase of Commitments. By delivery of an effective
Increase Notice to the Administrative Agent (which the Administrative Agent
shall promptly distribute to the Lenders), the Borrower may request an increase
of the aggregate amount of the Revolving Commitments; provided, that, (a) the
aggregate amount of the Revolving Commitments both before and after giving
effect to such requested increase shall not exceed $300,000,000, (b) no
46
Default or Event of Default shall have occurred and be continuing or would
result therefrom, and (c) the Borrower shall cause to be delivered to the
Administrative Agent a commitment (or commitments) from (i) at least one Lender
that commits to lending to the Borrower more than its then current Revolving
Commitment (such Lender to be referred to herein as a "Current Lender" and such
amount of its Revolving Commitment above its then current Revolving Commitment
to be referred to herein as a "Revolving Commitment Supplement") and/or (ii) any
other Person (including a Lender Affiliate) that meets the requirements of the
definition of "Eligible New Lender" (as defined in Section 1.01 hereof) and that
commits to lending to the Borrower and becoming a Lender under this Agreement
(such Person to be referred to herein as a "New Lender" and the amount of its
Revolving Commitment to be referred to herein as a "New Revolving Commitment")
(each Current Lender and each New Lender to be referred to herein collectively
as the "Supplementing Lenders"). Upon receipt of notice from the Administrative
Agent to the Lenders and the Borrower that the Supplementing Lenders have agreed
to commit to increase the Aggregate Revolving Commitments by an aggregate amount
equal to the Increase Amount and execution and delivery by the Borrower, the
Administrative Agent and the Supplementing Lenders of an Increased Commitment
Agreement evidencing such agreement, then (A) the then current Aggregate
Revolving Commitments shall be increased by the Increase Amount, (B) the then
current Revolving Commitment of each Current Lender shall be increased by such
Current Lender's Revolving Commitment Supplement and (C) each of the New Lenders
will be added as a Lender under this Agreement and each such New Lender's
Revolving Commitment shall be such New Lender's New Revolving Commitment. On the
effective date of the Increased Commitment Agreement, the Borrower shall request
a Borrowing hereunder, which Borrowing shall be made by (and only by) the
Supplementing Lenders in the appropriate amounts as provided below. The proceeds
of such Borrowing shall be utilized by the Borrower to repay the Lenders that
did not agree to increase their Revolving Commitments, such Borrowing and
repayment to be in amounts sufficient so that, after giving effect to the
Increased Commitment Agreement, the Revolving Loans and the LC Exposure shall be
held by the Lenders according to their Revolving Credit Percentage of the
Revolving Commitments as increased in accordance with the Increased Commitment
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Syndication
Agents, the Issuing Bank and the Lenders to enter into this Agreement and to
make Loans and issue Letters of Credit hereunder, the Borrower represents and
warrants (which representations and warranties shall be deemed made after giving
effect to the Closing Transactions (except in the case of Section 3.04(a)) to
the Agents, the Issuing Bank and the Lenders that:
SECTION 3.01 Organization; Powers. Each of the Borrower and its
Consolidated Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
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SECTION 3.02 Authorization; Enforceability. The Transactions and
Closing Transactions are within the Borrower's and each Material Subsidiary's
(as applicable) corporate, partnership or limited liability company powers (as
applicable) and have been duly authorized, as applicable, by all necessary
corporate, partnership or limited liability company powers (as applicable) and,
if required, stockholder action. This Agreement and the other Loan Documents
have been duly executed and delivered by the Borrower and each Material
Subsidiary (to the extent a party thereto) and constitute the legal, valid and
binding obligations of the Borrower and each Material Subsidiary (as
applicable), enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions and
Closing Transactions (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except such
as have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 3.04 Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders
its consolidated balance sheet and statements of income, stockholders equity and
cash flows (i) as of and for the calendar year ended December 31, 2003, audited
by Ernst & Young, LLP, independent public accountants, and (ii) as of and for
the Fiscal Quarter and the portion of the calendar year ended September 30,
2003, certified by one of its Financial Officers. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its Consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since December 31, 2003, and except for the Disclosed
Matters, there has been no Material Adverse Effect on the Borrower and its
Subsidiaries, taken as a whole.
SECTION 3.05 Properties.
(a) Each of the Borrower and its Consolidated
Subsidiaries has good title to, or valid leasehold interests in, all its
Property material to its business (including its Collateral), except for (i)
Permitted Encumbrances and (ii) minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties for their intended purposes.
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(b) Each of the Borrower and its Consolidated
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business
(including its Collateral), and the use thereof by the Borrower and its
Consolidated Subsidiaries does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06 Litigation.
(a) There are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve this Agreement,
the Transactions or the Closing Transactions.
(b) Since the date of this Agreement, there has been no
change in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.07 Compliance with Laws and Agreements. Each of the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. Neither (a) a Default nor (b)
any other default by the Borrower or any of its Subsidiaries under any agreement
that could result in a Material Adverse Effect, has occurred and is continuing.
SECTION 3.08 Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09 Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (in each case determined based on the
assumptions used for purposes of Statement of Financial Accounting
49
Standards No. 87) as of the date of the most recent financial statements
reflecting such amounts, does not exceed the fair market value of the assets of
such Plan (as of the date of determination of such benefit obligation amount) by
an amount which, if it constituted a direct liability of the Borrower, could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.11 Subsidiaries. Schedule 3.11 hereto accurately (a) reflects
(i) the jurisdiction of incorporation or organization of the Borrower and each
of its Subsidiaries, and (ii) each jurisdiction in which the Borrower and each
of its Subsidiaries is qualified to transact business as a foreign corporation,
foreign partnership or foreign limited liability company, and (b) specifies
those Subsidiaries that are Material Subsidiaries. The Borrower has no
Subsidiaries other than those listed on Schedule 3.11.
SECTION 3.12 Burdensome Obligations. Neither the Borrower nor any of
its Subsidiaries, nor any of their respective properties, is subject to any law
or any pending or threatened Change in Law or subject to any restriction under
its articles or certificate of incorporation, bylaws, regulations, partnership
agreement or comparable charter or other organizational documents or under any
agreement or instrument to which the Borrower or any of its Subsidiaries, or any
of their respective properties, may be subject or bound, which is so unusual or
burdensome as to be likely in the foreseeable future to result in a Material
Adverse Effect.
SECTION 3.13 Employee Matters. Except as set forth on Schedule 3.13,
neither the Borrower nor any of its Subsidiaries, nor any of their respective
employees, is subject to any collective bargaining agreement. There are no
strikes, slowdowns, work stoppages or controversies pending or, to the knowledge
of the Borrower, threatened against the Borrower or any of its Subsidiaries, or
their respective employees, which could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.14 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum, nor any of the
other reports, financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.15 Margin Stock. None of the proceeds of the Loans will be
used for the purpose of, and neither the Borrower nor any Subsidiary of the
Borrower is engaged in the business of, extending credit for the purpose of (a)
purchasing or carrying any "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System (12 C.F.R. Part 221) or (b)
reducing or retiring any indebtedness which was originally incurred to purchase
50
or carry any margin stock, in either case in violation of Regulation U. Neither
the Borrower nor any Subsidiary of the Borrower is engaged principally in the
business of extending credit for the purpose of purchasing or carrying any
margin stock. Neither the Borrower nor any Subsidiary of the Borrower nor any
Person acting on behalf of the Borrower or any Subsidiary of the Borrower has
taken or will take any action which would cause any of the Loan Documents,
including this Agreement and any Subsidiary Guaranty, to violate Regulation U or
any other regulation of the Board of Governors of the Federal Reserve System, or
to violate any similar provision of the Securities Exchange Act of 1934 or any
rule or regulation under any such provision thereof.
SECTION 3.16 Primary Business. The primary business of the Borrower and
its Subsidiaries taken as a whole is that of the manufacturing of
transportation, construction and industrial products, and the leasing of
railroad tank cars, covered hopper cars, box cars and related equipment.
SECTION 3.17 Environmental Matters.
(a) Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(b) Except for the Disclosed Matters, all Hazardous
Materials or solid waste generated at any and all Property of the Borrower or
any Subsidiary have in the past been transported, treated and disposed of only
by carriers maintaining valid permits under any Environmental Law, and only at
treatment, storage and disposal facilities maintaining valid permits under any
Environmental Law, which carriers and facilities have been and are operating in
compliance with such permits.
(c) The Borrower and each Subsidiary have taken all
reasonable steps necessary to determine and have determined that no Hazardous
Materials or solid waste has been disposed of or otherwise released and there
has been no threatened release of any Hazardous Materials on or to any Property
of the Borrower or any Subsidiary except in compliance with Environmental Laws,
and except for releases that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.18 Closing Documents. The Borrower has provided to the
Administrative Agent a true, correct and complete copy of each of the Closing
Documents (and all amendments thereto) and all other material documents,
instruments and agreements entered into by, between or among the Borrower, its
Subsidiaries and any other party to any Closing Document, including all
amendments and modifications thereto (whether characterized as an amendment,
modification, waiver, consent or similar document) relating to the Closing
Transactions.
51
SECTION 3.19 Schedules to other Loan Documents. All information set
forth in all disclosure schedules to the other Loan Documents is true, correct
and complete in all material respects.
SECTION 3.20 Senior Indebtedness. The Lender Indebtedness constitutes
"Senior Indebtedness" of the Borrower under and as defined in the Indenture.
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date. This Agreement and the obligations of the
Lenders to make Loans and of the Issuing Bank to issue, amend, renew or extend
any Letter of Credit shall not become effective until the date on which each of
the following conditions is satisfied (or waived in accordance with Section
10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) The Administrative Agent (or its counsel) shall have
received from the Borrower a Revolving Credit Note payable to the order of each
Lender, each in the amount of such Lender's Revolving Commitment, signed on
behalf of the Borrower.
(c) The Administrative Agent (or its counsel) shall have
received from each Material Subsidiary either (i) a Subsidiary Guaranty signed
on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of such Subsidiary Guaranty) that such party has signed such
Subsidiary Guaranty.
(d) The Administrative Agent (or its counsel) shall have
received from the Borrower and its Material Subsidiaries a Security Agreement
signed on behalf of the Borrower and such Subsidiaries.
(e) The Administrative Agent (or its counsel) shall have
received from each of the Borrower and Trinity Rail Group, LLC, a Pledge
Agreement signed on behalf of the Borrower and Trinity Rail Group, LLC,
respectively.
(f) The Administrative Agent shall have received such
UCC, tax and judgment lien search reports listing all documentation on file
against the Borrower, each Subsidiary and such other Persons as the
Administrative Agent may require in each jurisdiction in which Borrower, such
Subsidiaries and such other Persons has a principal place of business and/or
jurisdiction of organization and in which any Collateral is or has been located.
52
(g) The Administrative Agent shall have received such
executed documentation and other Property as the Administrative Agent may
require or deem necessary to perfect or protect the Administrative Agent's Lien
in the Property of the Borrower and its Subsidiaries granted pursuant to the
Security Agreement, the Pledge Agreements and the other Security Instruments,
including, without limitation, (i) stock certificates and other applicable
certificates representing all of the outstanding Equity in each Material
Subsidiary, duly endorsed for transfer to the Administrative Agent or such other
duly executed assignments of such Equity as are acceptable to the Administrative
Agent (or its counsel), (ii) all Collateral the possession of which is necessary
to perfect the Lien therein, (iii) financing statements under the UCC, (iv) all
other applicable documentation under the laws of any jurisdiction required with
respect to the creation, perfection and protection of Liens, and (v) all third
party or governmental approvals and consents required for the pledge of the
Collateral under the Security Agreement, the Pledge Agreements and the other
Security Instruments.
(h) The Administrative Agent shall have received such
duly executed UCC-3 termination statements and such other documentation as shall
be necessary to terminate or release all Liens encumbering the Collateral not
otherwise permitted by this Agreement.
(i) The Administrative Agent shall have received evidence
that the insurance required by Section 6.05 is in effect.
(j) The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative Agent and the Lenders
and dated as of the date hereof) of Haynes & Boone, LLP, counsel for the
Borrower and the Subsidiaries a party to any Loan Document, in form and
substance satisfactory to the Administrative Agent, and covering such matters
relating to the Borrower, such Subsidiaries, this Agreement, the other Loan
Documents and/or the Transactions as the Required Lenders shall reasonably
request.
(k) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
the Borrower and its Subsidiaries, the authorization of the Closing
Transactions, the Transactions and any other legal matters relating to the
Borrower, its Subsidiaries, this Agreement, the other Loan Documents, the
Closing Transactions and/or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(l) The Administrative Agent shall have received a
certificate, dated as of the date hereof and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(m) The Administrative Agent, the Arranger and the
Lenders shall have received all fees and other amounts due and payable pursuant
to the Fee Letter, this Agreement or any other Loan Document on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder or under any other Loan Document.
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(n) All Existing Indebtedness of the Borrower shall have
been paid in full.
(o) The Administrative Agent shall have received Bailee's
Letters duly executed and delivered by any Person who is in possession of
inventory on behalf of the Borrower.
(p) The Administrative Agent (or its counsel) shall have
received the Intercreditor Agreement executed by the Borrower, certain of its
Subsidiaries party thereto and all other parties thereto.
(q) The Administrative Agent shall have received a copy
of each material Closing Document and all other material documents, instruments
and agreements executed and/or delivered by the Borrower or any of its
Subsidiaries in connection with the Closing Transactions, together with a
certificate from an Authorized Officer certifying that such copies are accurate
and complete.
(r) The Closing Transactions shall have occurred (or the
Administrative Agent shall be satisfied that such transactions will occur
simultaneously with the Effective Date).
(s) The representations and warranties of each Person set
forth in the Loan Documents shall be true and correct on and as of the date
hereof.
(t) The Administrative Agent and its counsel shall have
received all information, approvals, documents or instruments as the
Administrative Agent or its counsel may reasonably request.
All documents executed or submitted pursuant to this Section 4.01 by and on
behalf of the Borrower or any of its Subsidiaries shall be in form and substance
reasonably satisfactory to the Administrative Agent and its counsel. The
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 10.02) at or
prior to 2:00 p.m., Dallas, Texas time, on March 10, 2004 (and, in the event
such conditions are not so satisfied or waived, the Revolving Commitments shall
terminate at such time). Upon satisfaction of each of the conditions set forth
in this Section 4.01, the Borrower and the Administrative Agent shall execute
the Certificate of Effectiveness. Upon the execution and delivery of the
Certificate of Effectiveness, the Existing Credit Agreement shall automatically
and completely be amended and restated on the terms set forth herein without
necessity of any other action on the part of any Lender, any Agent or the
Borrower. Until execution and delivery of the Certificate of Effectiveness, the
Existing Credit Agreement shall remain in full force and effect in accordance
with its terms. Each Lender hereby authorizes the Administrative Agent to
execute the Certificate of Effectiveness on its behalf and acknowledges and
agrees that the execution of the Certificate of Effectiveness by the
Administrative Agent shall be binding on each such Lender.
SECTION 4.02 Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the further satisfaction of
the following conditions:
54
(a) The representations and warranties of each Person set
forth in the Loan Documents shall be true and correct on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be continuing.
(c) The funding of such Borrowing or the issuance,
amendment, renewal or extension of any Letter of Credit and all other Borrowings
to be made and/or Letter(s) of Credit to be issued, amended, renewed or extended
(as applicable) on the same day under this Agreement, shall not cause the
Revolving Credit Exposure of the Lenders to be greater than the Aggregate
Revolving Commitment.
(d) Following the issuance of any Letter(s) of Credit,
the aggregate LC Exposure of all the Lenders shall not exceed $150,000,000.
(e) The Administrative Agent shall have received a
Borrowing Request for any Borrowing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a), (b),
(c) and (d) of this Section 4.02.
ARTICLE V
SECURITY
SECTION 5.01 Lender Indebtedness Secured. As of the Effective Date, and
at all times thereafter when the ratings established by S&P and Moody's for the
Index Debt (the "Index Debt Ratings") are at a level (as established in
accordance with the terms of this Section 5.01) equal to or below the Security
Threshold Rating Level, the Lender Indebtedness and the other obligations
described in the Intercreditor Agreement shall be secured by perfected, first
priority Liens on and encumbering (a) all accounts receivable and inventory
(other than the Excluded Collateral) of the Borrower and its Material
Subsidiaries party to the Security Agreements, whether now owned or hereafter
acquired and wherever located, and (b) all of the issued and outstanding Equity
owned by the Borrower and its Subsidiaries of each existing and future Material
Subsidiary. In furtherance of the foregoing, the Borrower hereby agrees to
execute and deliver (and to cause any other appropriate Person to execute and
deliver) to the Administrative Agent and/or the Collateral Agent for the benefit
of the Lenders and the Creditors (as defined in the Intercreditor Agreement),
promptly upon request by the Administrative Agent and/or the Collateral Agent,
such Security Instruments and other documents, instruments, agreements and
certificates, as the Administrative Agent and/or the Collateral Agent shall deem
necessary or appropriate in its or their sole discretion to create, evidence and
perfect the Liens contemplated by this Section 5.01. The Borrower hereby
consents and authorizes the Administrative Agent and the Collateral Agent, and
their agents, successors and assigns, to file any and all necessary financing
statements under the UCC, amendments, "in lieu" filings or assignments or
55
continuation statements as necessary from time to time (in the Administrative
Agent's and Collateral Agent's discretion) to perfect or continue perfection of
the Liens granted pursuant to the Loan Documents. For purposes of this Article
V, (i) if either S&P or Moody's shall not have in effect an Index Debt Rating
(other than by reason of the circumstances referred to in the last sentence of
this Section 5.01), then such rating agency shall be deemed to have established
an Index Debt Rating below the Security Threshold Rating Level, and (ii) if the
Index Debt Ratings established or deemed to have been established by S&P and
Moody's shall be changed (other than as a result of a change in the rating
system of S&P or Moody's), such change shall be effective as of the date on
which it is first announced by the applicable rating agency. If the rating
system of S&P or Moody's shall change, or if either such rating agency shall
cease to be in the business of rating corporate or subordinated debt obligations
(as applicable), the Borrower and the Lenders shall negotiate in good faith to
amend this Article V to reflect such changed rating system or the unavailability
of ratings from such rating agency and, pending the effectiveness of any such
amendment, the provisions of this Article V shall be construed and determined by
reference to the rating most recently in effect prior to such change or
cessation.
SECTION 5.02 Collateral Released. If at any time the Index Debt Ratings
established by S&P or Moody's are (or either one of them is) increased to a
level (as established in accordance with the terms of Section 5.01) above the
Security Threshold Rating Level, the Borrower may request the Collateral Agent
in writing, with copies thereof delivered simultaneously to the Administrative
Agent, to release the Liens on and encumbering the Collateral. Promptly after
the Administrative Agent receives such written request from the Borrower,
together with evidence of the applicable Index Debt Ratings, and provided no
Default or Event of Default then exists, the Administrative Agent shall, without
the consent or approval of any other Lender or Creditor (as defined in the
Intercreditor Agreement), at the Borrower's expense, cause the Collateral Agent
to release such Collateral.
SECTION 5.03 Collateral Reinstated. If at any time following the
release of Collateral as provided in Section 5.02, the Index Debt Ratings are
reduced to a level (as established in accordance with Section 5.01) equal to or
below the Security Threshold Rating Level, the Borrower will, and will cause
each of its Subsidiaries (as applicable) to, at the Borrower's expense, execute
and deliver to the Administrative Agent and/or the Collateral Agent, for the
benefit of the Lenders and/or Creditors (as defined in the Intercreditor
Agreement), on or prior to the date which is thirty (30) Business Days following
the reduction of such Index Debt Ratings to a level equal to or below the
Security Threshold Rating Level, such Security Instruments and other documents,
instruments, agreements and certificates as the Administrative Agent and/or the
Collateral Agent shall deem necessary or appropriate in its or their sole
discretion to create, evidence and perfect the Liens contemplated by Section
5.01.
SECTION 5.04 Release of Certain Existing Collateral. As soon as
reasonably practicable following the Effective Date, the Liens encumbering the
Mortgaged Property (as defined in the Existing Credit Agreement) and the other
Property of the Borrower and its Subsidiaries described on Schedule 5 of the
Existing Credit Agreement, to the extent granted to secure the Lender
Indebtedness under and as defined in the Existing Credit Agreement and not
securing the Lender Indebtedness as defined herein, shall be released.
56
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Revolving Commitments have expired or been
terminated and the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full and all Letters of Credit shall have
expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Administrative Agent, the Syndication
Agents, the Issuing Bank and each Lender that:
SECTION 6.01 Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of
the Borrower, its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Ernst & Young, LLP or other independent
public accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders' equity and
cash flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial
statements under clause (a) or (b) above, a certificate of a Financial Officer
of the Borrower, substantially in the form of Exhibit E, (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 7.09(a), (b), (c), (d) and (e) and (iii) stating
whether any change in GAAP or in the application thereof has occurred since the
date of the audited financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial
statements under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained knowledge
during the course of their examination of such financial
57
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the case may be;
(f) promptly upon determination that any Subsidiary has
become a Material Subsidiary, (i) a Subsidiary Guaranty duly executed by such
Material Subsidiary, (ii) a Pledge Agreement duly executed by the Borrower (or
any applicable Subsidiary) granting the Administrative Agent and/or Collateral
Agent a perfected first priority Lien on and evidencing all of the issued and
outstanding Equity owned by the Borrower (or any applicable Subsidiary) of such
Material Subsidiary, together with such certificates, financing statements and
other Property as necessary to perfect the Administrative Agent's and/or
Collateral Agent's Lien in such Equity, and (iii) such resolutions, member or
partner consents, certificates, legal opinions and such other related documents
as the Administrative Agent may reasonably request, all in form and substance
satisfactory to the Administrative Agent;
(g) promptly after such delivery or receipt, copies of
any financial or other report or notice delivered to, or received from, any
holders of Senior Unsecured Notes, which report or notice has not been delivered
to the Lenders hereunder;
(h) within five (5) days of the Effective Date, a
certificate of a Financial Officer of the Borrower certifying as to the amount
of the ICR Capex Exclusion Amount (and each component thereof) as of the
Effective Date after giving effect to the Closing Transactions; and
(i) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of this
Agreement or any other Loan Document, as the Administrative Agent or any Lender
may reasonably request.
SECTION 6.02 Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any Affiliate thereof that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;
58
(d) an announcement by Moody's or S&P of a change in the
ratings established or deemed to have been established for the Index Debt or any
other rating of the Borrower or any of its Subsidiaries;
(e) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened or other
environmental claims against the Borrower or any of its Subsidiaries or any of
their respective properties pursuant to any applicable Environmental Laws which
could reasonably be expected to have a Material Adverse Effect;
(f) the occurrence of any event or circumstance
concerning or changing any of the Collateral that could reasonably be expected
to have a Material Adverse Effect; or
(g) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.02 shall be accompanied by a
statement of a Financial Officer or other Authorized Officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 6.03 Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.03.
SECTION 6.04 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, and the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (b) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 6.05 Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by the Borrower and its Subsidiaries.
SECTION 6.06 Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent, the Collateral Agent or any Lender, upon
59
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 6.07 Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.08 Use of Proceeds. The proceeds of the Revolving Loans will
be used only (a) to refinance Existing Indebtedness of the Borrower, (b) for
working capital and general corporate purposes of the Borrower and its
Subsidiaries in the ordinary course of business, and (c) to pay fees and
expenses related to the closing and consummation of the Transactions. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.
SECTION 6.09 Maintenance of Debt Ratings. The Borrower shall use
commercially reasonable efforts to ensure that the Borrower's Index Debt is
rated by Moody's and S&P (as applicable).
SECTION 6.10 Compliance with Security Instruments. The Borrower will,
and will cause each of its Subsidiaries to, comply with its obligations under
the Intercreditor Agreement and the Security Instruments arising in connection
with the formation or acquisition of any Material Subsidiary within ten (10)
Business Days after such Material Subsidiary is formed or acquired.
SECTION 6.11 Further Assurances. The Borrower will, and will cause each
of its Subsidiaries to, cure promptly any defects in the creation and issuance
of the Notes, and the execution and delivery of the Loan Documents, including
this Agreement. The Borrower at its expense will, as promptly as practical,
execute and deliver to the Administrative Agent or the Issuing Bank upon request
all such other and further documents, agreements and instruments (or cause any
of its Subsidiaries (as applicable) to take such action) in compliance with or
performance of the covenants and agreements of the Borrower and its Subsidiaries
in the Loan Documents, including this Agreement, or to further evidence and more
fully describe the Collateral, or to correct any omissions in the Loan
Documents, or more fully to state the security obligations set out herein or in
any of the Loan Documents, or to perfect, protect or preserve any Liens created
pursuant to any of the Loan Documents, or to make any recordings, to file any
notices, or obtain any consents, all as may be necessary or appropriate in
connection therewith.
ARTICLE VII
NEGATIVE COVENANTS
Until the Revolving Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have
60
expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Administrative Agent, the Syndication
Agents, the Issuing Bank and each Lender that:
SECTION 7.01 Indebtedness. The Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set
forth in Schedule 7.01, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
(c) Indebtedness of the Borrower to any Subsidiary and of
any Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other
Subsidiary (including pursuant to the Subsidiary Guaranties);
(e) Indebtedness of the Borrower or any Subsidiary
incurred to finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any Indebtedness assumed
in connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that (i) such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by this clause (e) shall not exceed $25,000,000 at any
time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary
after the date hereof; provided that (i) such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (f) shall not exceed
$25,000,000 at any time outstanding;
(g) Indebtedness of the Borrower or any Subsidiary as an
account party in respect of trade letters of credit;
(h) Existing LC Exposure;
(i) the TILC Conduit Indebtedness;
(j) other unsecured Indebtedness in an aggregate
principal amount not exceeding $150,000,000 at any time outstanding; provided
that the aggregate principal amount of Indebtedness of the Borrower's
Subsidiaries permitted by this clause (j) shall not exceed
61
$10,000,000 at any time outstanding (excluding any Indebtedness of any such
Subsidiaries permitted by clause (i) of this Section 7.01); and
(k) Indebtedness evidenced by the Senior Unsecured Notes.
SECTION 7.02 Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances and Liens created by the
Security Instruments;
(b) any Lien on any property or asset of the Borrower or
any Subsidiary existing on the date hereof and set forth in Schedule 7.02;
provided that (i) such Lien shall not apply to any other property or asset of
the Borrower or any Subsidiary, and (ii) such Lien shall secure only those
obligations which it secures on the date hereof, and extensions, removals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(c) any Lien existing on any property or asset prior to
the acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary; provided that (i) such Lien
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and
(iii) such Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the case
may be, and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof; and
(d) Liens on fixed or capital assets acquired,
constructed or improved by the Borrower or any Subsidiary; provided that (i)
such Liens secure Indebtedness permitted by clause (e) of Section 7.01, (ii)
such Liens and the Indebtedness secured thereby are incurred prior to or within
90 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the
cost of acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or assets of
the Borrower or any Subsidiary.
SECTION 7.03 Fundamental Changes.
(a) Except as otherwise set forth herein, the Borrower
will not, and will not permit any Subsidiary to, (i) merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate
with it; (ii) except for (A) sales of inventory in the ordinary course of
business, (B) the sale of assets described on Schedule 7.03 (or the sale of the
voting securities or other equity interests of Subsidiaries whose only
substantial assets are those described on Schedule 7.03), (C) the sale of all of
the Equity of SC Meva SA, a Romanian joint stock company and a Subsidiary of the
Borrower, and (D) in addition to the sales otherwise expressly permitted
hereunder, the sale of all or any interest in one or more assets (to the extent,
62
and only to the extent, such assets do not (or any portion thereof proposed to
be sold does not) constitute Collateral) including all or any interest in
Subsidiaries, to the extent the book value of such interest or interests,
measured on a cumulative basis from and after the date of this Agreement, does
not exceed an amount equal to $20,000,000, (y) sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the stock of any
of its Subsidiaries (in each case, whether now owned or hereafter acquired), or
(z) sell, transfer, lease or otherwise dispose of any Collateral; or (iii)
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (A) any
Subsidiary may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (B) any Subsidiary may merge into any Subsidiary in a
transaction in which the surviving entity is a Subsidiary, (C)(i) the Borrower
may sell, transfer, lease or otherwise dispose of its assets to any Subsidiary,
and (ii) any Subsidiary may sell, transfer, lease or otherwise dispose of its
assets to the Borrower or any other Subsidiary, and (D) any Subsidiary may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 7.04.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto.
SECTION 7.04 Investments, Loans, Advances, Guarantees and Acquisitions.
The Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower in the capital stock of
its Subsidiaries, and investments by such Subsidiaries in the capital stock of
their respective subsidiaries;
(c) loans or advances made by the Borrower to any
Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by
Section 7.01; and
(e) Permitted Acquisitions.
63
SECTION 7.05 Hedging Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 7.06 Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (a) the Borrower may
declare and pay dividends with respect to its capital stock payable solely in
additional shares of its common stock, (b) Subsidiaries may declare and pay
dividends ratably with respect to their capital stock, (c) the Borrower may make
Restricted Payments pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Borrower and its
Subsidiaries, including, without limitation, pursuant to any severance packages
for management or employees of the Borrower and its Subsidiaries and approved by
the Board of Directors of the Borrower, (d) provided no Default has occurred
which is continuing, the Borrower may, for each Fiscal Year, commencing with the
Fiscal Year ending December 31, 2004, declare and pay dividends in an aggregate
amount equal to the greater of (i) $25,000,000, or (ii) 50% of the Borrower's
consolidated net income (determined in accordance with GAAP) for such Fiscal
Year.
SECTION 7.07 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliate and (c) any Restricted Payment permitted by Section 7.06.
SECTION 7.08 Restrictive Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Borrower or any Subsidiary
to create, incur or permit to exist any Lien in favor of the Administrative
Agent or Collateral Agent upon any of its property or assets, or (b) the ability
of any Subsidiary to pay dividends or other distributions with respect to any
shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Subsidiary or to Guarantee the Lender Indebtedness;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by this Agreement, (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on Schedule
7.08 (but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v) clause (a)
of the foregoing shall not apply to restrictions or conditions imposed
64
by any agreement relating to Liens on property or assets permitted by Section
7.02(c) hereof if such restrictions or conditions apply only to the property or
assets contemplated therein, (vi) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to purchase money
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets being financed thereunder, and (vii) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
SECTION 7.09 Financial Covenants.
(a) The Borrower will not permit the Interest Coverage
Ratio to be less than 2.25 to 1.00 at any time.
(b) The Borrower will not permit the Leverage Ratio to be
greater than 3.25 to 1.00 at any time.
(c) The Borrower will not permit Consolidated Net Worth
at any time to be less than the sum of (i) $860,000,000, plus (ii) 50% of the
Borrower's and its Subsidiaries' cumulative positive consolidated net income for
each Fiscal Quarter ending after December 31, 2003, plus (iii) one-hundred
percent (100%) of the Net Cash Proceeds received by the Borrower at any time
after December 31, 2003 as a result of the issuance of any Equity.
(d) The Borrower will not permit the Asset Coverage Ratio
to be less than 1.75 to 1.00 at any time.
(e) The Borrower will not permit the TILC Interest
Coverage Ratio to be less than 1.50 to 1.00 at any time.
SECTION 7.10 Fiscal Year. The Borrower will not change its Fiscal Year.
SECTION 7.11 Capital Expenditures. The Borrower will not, and will not
permit any of its Subsidiaries to, make Capital Expenditures (Leasing Company)
in any Fiscal Year in excess of $150,000,000 in an aggregate amount.
SECTION 7.12 Modifications to Senior Unsecured Debt Documents; Payment
Restrictions. The Borrower will not, and will not permit any of its Subsidiaries
to,
(a) amend, modify, or waive any covenant contained in any
of the Senior Unsecured Debt Documents if the effect of such amendment,
modification, or waiver would be to make the terms of any such Senior Unsecured
Debt Document materially more onerous to the Borrower or any of its
Subsidiaries;
(b) amend, modify, or waive any provision of the Senior
Unsecured Debt Documents if the effect of such amendment, modification or waiver
(1) subjects the Borrower or any of its Subsidiaries to any additional material
obligation, (2) increases the principal of or rate of interest on any Senior
Unsecured Note, (3) accelerates the date fixed for any payment of principal or
interest on any Senior Unsecured Note, or (4) would change the percentage of
65
holders of such Senior Unsecured Notes required for any such amendment,
modification, or waiver from the percentage required on the Effective Date; or
(c) make any payment of principal of, make any voluntary
prepayment of, or optionally redeem, or make any payment in defeasance of, any
part of the Senior Unsecured Notes.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay (including, but not
limited to, any failure to pay any mandatory prepayment required by Section
2.11(b)) any principal of any Loan or any reimbursement obligation in respect of
any LC Disbursement when and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower or any Material Subsidiary shall fail to
pay any interest on any Loan or any fee or any other amount (other than an
amount referred to in clause (a) of this Article VIII) payable under this
Agreement or any other Loan Document, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by
or on behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document or any amendment or modification hereof or
thereof, or waiver hereunder or thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection
with this Agreement or any other Loan Document, or any amendment or modification
hereof or thereof, or waiver hereunder or thereunder, shall prove to have been
incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Article V, Section 6.01, 6.02,
6.03 (with respect to the Borrower's and its Subsidiaries' existence), 6.08 or
in Article VII;
(e) the Borrower or any Subsidiary (as applicable) shall
fail to observe or perform any covenant, condition or agreement contained in
this Agreement or any other Loan Document (other than those specified in clause
(a), (b) or (d) of this Article VIII), and such failure shall continue
unremedied for a period of 30 days after the earlier to occur of either (i) an
Authorized Officer of the Borrower becoming aware of such default or (ii) notice
thereof having been given to the Borrower by the Administrative Agent (which
notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable;
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(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Material Subsidiary or its debts,
or of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary or
for a substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article VIII, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Material
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Material Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against the
Borrower, any Subsidiary (other than a Nonrecourse Subsidiary) or any
combination thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Borrower or any such Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the
opinion of the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) a Change in Control shall occur;
(n) any Lien purported to be created under any Loan
Document shall cease to be, or shall be asserted by the Borrower or any of its
Subsidiaries not to be, a valid and perfected
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Lien on any Collateral, with the priority required hereby or by the
Intercreditor Agreement, except as a result of the sale or other disposition of
the applicable Collateral in a transaction permitted under the Loan Documents;
(o) either any Subsidiary Guaranty, any Security
Agreement, any Pledge Agreement, the Intercreditor Agreement or any other
Security Instrument shall for any reason cease to be in full force and effect
and valid, binding and enforceable in accordance with its terms after its date
of execution, or the Borrower or any of its Subsidiaries shall so state in
writing;
(p) the occurrence of an Event of Default under and as
defined in the Intercreditor Agreement; or
(q) the occurrence of an event of default under the
Indenture, which such event of default shall continue unremedied or is not
waived prior to the expiration of any applicable period of grace or cure under
the Indenture;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article VIII), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Revolving Commitments, and thereupon the Revolving Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower described in
clause (h) or (i) of this Article VIII, the Revolving Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower. In addition to the other rights and remedies that
the Lenders may have upon the occurrence of an Event of Default, the Required
Lenders may direct the Administrative Agent and, in accordance with the terms
of, and subject to the necessary consent of the other parties to, the
Intercreditor Agreement, the Collateral Agent, to exercise the rights and
remedies available to the Administrative Agent and the Collateral Agent under
the Security Agreements, the Pledge Agreements and the other Security
Instruments.
ARTICLE IX
AGENTS
Each of the Lenders, the Issuing Bank and the other Agents
hereby irrevocably appoint JPMorgan Chase Bank as Administrative Agent, and each
of Dresdner Bank AG, New York and Grand Cayman Branches and The Royal Bank of
Scotland plc as Syndication Agents,
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and authorize each such Agent to take such actions on its behalf and to exercise
such powers as are delegated to such Agents by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
Without limiting the foregoing, the Administrative Agent is hereby authorized to
execute and deliver the Intercreditor Agreement on behalf of each Lender and
bind each Lender to the terms thereof as if each Lender were directly a party
thereto. Further, each Lender hereby irrevocably appoints JPMorgan Chase Bank as
Collateral Agent for the Lenders under the Intercreditor Agreement and the
Security Instruments (as applicable).
Any bank serving as an Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Agents shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) the Agents shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) each Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that such Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 10.02, or further, with respect to the Collateral Agent, such other
number or percentage of Persons as necessary or required by the terms of the
Intercreditor Agreement), and (c) except as expressly set forth in the Loan
Documents, the Agents shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as such Agent or any of its Affiliates in any capacity. Each Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.02) or in the absence of its own gross negligence or willful misconduct;
PROVIDED, HOWEVER, THAT IT IS THE INTENTION OF THE PARTIES HERETO THAT EACH OF
THE AGENTS BE INDEMNIFIED IN THE CASE OF ITS OWN NEGLIGENCE (OTHER THAN GROSS
NEGLIGENCE), REGARDLESS OF WHETHER SUCH NEGLIGENCE IS SOLE OR CONTRIBUTORY,
ACTIVE OR PASSIVE, IMPUTED, JOINT OR TECHNICAL. Each Agent shall be deemed not
to have knowledge of any Default (other than, with respect to the Administrative
Agent, knowledge of a Default of the types specified in clauses (a) or (b) of
Article VIII) unless and until written notice thereof is given to such Agent by
the Borrower or a Lender, and such Agent shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
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The Agents shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agents also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agents may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Any Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by such
Agent. Any Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of such Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as an Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in Dallas, Texas, Houston, Texas or New York
City, or an Affiliate of any such bank. Upon the acceptance of its appointment
as Administrative Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon any Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at Trinity Industries,
Inc., 2525 Stemmons Freeway, Dallas, Texas 75207, Attention: Neil Shoop
(Telecopy No.: 214-589-8824);
(b) if to the Administrative Agent, to it at JPMorgan
Chase Bank, 2200 Ross Avenue, 3rd Floor, Dallas, Texas, Texas 75201, Attention:
Michael Lister (Telecopy No.: 214-965-2044), with a copy to JPMorgan Chase Bank,
1111 Fannin, Floor 10, Houston, Texas 77002, Attention: Sheila Fitzwater
(Telecopy No.: 713-216-2228);
(c) if to the Issuing Bank, to it at JPMorgan Chase Bank,
2200 Ross Avenue, 3rd Floor, Dallas, Texas, Texas 75201, Attention: Michael
Lister (Telecopy No.: 214-965-2044), with a copy to JPMorgan Chase Bank, 1111
Fannin, Floor 10, Houston, Texas 77002, Attention: Sheila Fitzwater (Telecopy
No.: 713-216-2228); and
(d) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02 Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder or under
any other Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section 10.02, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
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(b) Neither this Agreement nor any of the Loan Documents
nor any provision hereof or thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or by the Borrower and the Administrative Agent with
the consent of the Required Lenders; provided that no such agreement shall (i)
increase the Revolving Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Revolving Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender directly affected thereby, (v) release any
Material Subsidiary from its obligations under its Subsidiary Guaranty, without
the written consent of each Lender, (vi) release any material portion of the
Collateral without the written consent of each Lender and each party otherwise
required to consent thereto pursuant to the terms of the Intercreditor
Agreement, except as otherwise expressly permitted hereby, and provided that the
Administrative Agent and the Collateral Agent shall release (without consent
from the Lenders or any other Person) any Collateral sold, transferred or
otherwise disposed of as permitted by Section 7.03 hereof, (vii) waive any of
the conditions set forth in Section 4.01 to the making of the Loans without the
consent of each Lender affected thereby, or (viii) change any of the provisions
of this Section 10.02(b) or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender directly
affected thereby; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of any Agent or the Issuing Bank hereunder
without the prior written consent of such Agent or the Issuing Bank, as the case
may be.
SECTION 10.03 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Arranger and
their respective Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Agents, the Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for the Agents, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement and the other Loan Documents, including its rights under this
Section 10.03, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket
72
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Agents, the Issuing
Bank, the Arranger and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document, the
performance by the parties to the Loan Documents of their respective obligations
hereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or willful misconduct of
such Indemnitee (IT BEING UNDERSTOOD THAT IT IS THE INTENTION OF THE PARTIES
HERETO THAT EACH OF THE INDEMNITEES BE INDEMNIFIED IN THE CASE OF ITS OWN
NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE), REGARDLESS OF WHETHER SUCH NEGLIGENCE
IS SOLE OR CONTRIBUTORY, ACTIVE OR PASSIVE, IMPUTED, JOINT OR TECHNICAL). No
Indemnitee shall be liable for any damages arising from the use by others of any
information or other material obtained through the Internet, Intralinks or other
similar information transmission systems in connection with the Loan Documents.
The Borrower agrees that no Indemnitee shall have any liability for any indirect
or consequential damages in connection with its activities related to the Loan
Documents.
(c) To the extent that the Borrower fails to pay any
amount required to be paid by it to the Agents or the Issuing Bank under
paragraph (a) or (b) of this Section 10.03, each Lender severally agrees to pay
to such Agents or the Issuing Bank, as the case may be, such Lender's Revolving
Credit Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agents or
the Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, the
Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
73
contemplated hereby, any other Loan Document, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section 10.03 shall be
payable promptly after written demand therefor.
SECTION 10.04 Successors and Assigns.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit), except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by the Borrower without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any Lender may assign to one or more assignees all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Revolving Commitment and the Loans at the time owing to it) by
executing, and causing the assignee thereof to execute, an Assignment and
Acceptance; provided that (i) except in the case of an assignment to a Lender or
a Lender Affiliate, each of the Borrower and the Administrative Agent (and, in
the case of an assignment of all or a portion of a Revolving Commitment or any
Lender's obligations in respect of its LC Exposure, the Issuing Bank) must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an assignment to a
Lender or a Lender Affiliate or an assignment of the entire remaining amount of
an assigning Lender's Revolving Commitment, the aggregate amount of the
Revolving Commitments assigned to an assignee, and the aggregate amount of the
Revolving Commitments retained by the assignor after giving effect to such
assignment, shall not be less than $10,000,000 (provided, that, if the Revolving
Commitments have expired or terminated, such limits shall apply to the amount of
the Revolving Credit Exposure assigned and retained), (iii) except in the case
of an assignment to a Lender or a Lender Affiliate or an assignment of the
entire remaining amount of an assigning Lender's Revolving Commitment, the
aggregate amount of the Revolving Commitments of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
be in increments of $1,000,000 and not be less than $5,000,000, unless each of
the Borrower and the Administrative Agent otherwise consent, (iv) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iv) shall not apply to rights in respect of outstanding Competitive
Loans, (v) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, except in the case of an assignment to a Lender
Affiliate, in which case no processing and recordation fee shall be
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payable, and (vi) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire; and provided further
that any consent of the Borrower otherwise required under this paragraph shall
not be required if an Event of Default has occurred and is continuing. Subject
to acceptance and recording thereof pursuant to paragraph (d) of this Section
10.04, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and to the other Loan
Documents and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement and
the other Loan Documents, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17, 2.19 and
10.03). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (e) of this Section
10.04(b).
(c) The Administrative Agent, acting for this purpose as
an agent of the Borrower, shall maintain at one of its offices in Houston, Texas
or Dallas, Texas a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Revolving Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement and the other Loan Documents,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section 10.04 and any written consent to such assignment required by
paragraph (b) of this Section 10.04, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower,
the Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Revolving Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and
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obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section 10.04, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.15, 2.16
and 2.17 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section 10.04. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 10.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.15 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 10.05 Survival. All covenants, agreements, representations and
warranties made by the Borrower and the Material Subsidiaries in the Loan
Documents and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the other Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that any Agent, the Issuing Bank, the Arranger or any Lender
may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Revolving
Commitments have not expired or terminated. The provisions of Sections 2.15,
2.16, 2.17, 2.19 and 10.03 and Article IX shall survive and remain in full force
and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the Letters
of Credit and the Revolving Commitments or the termination of this Agreement or
any provision hereof.
76
SECTION 10.06 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Agents constitute
the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Article IV, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 10.07 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 10.09 Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and governed by the law of the State of Texas.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Courts of the State of Texas and of the United States District Court for the
Northern District of Texas, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such Texas State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall
77
affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section 10.09.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 10.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10.10.
SECTION 10.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12 Confidentiality. Each of the Agents, the Issuing Bank and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder, (f) subject
to an
78
agreement containing provisions substantially the same as those of this Section
10.12, to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section 10.12 or
(ii) becomes available to the Administrative Agent, the Issuing Bank or any
Lender on a nonconfidential basis from a source other than the Borrower. For the
purposes of this Section 10.12, "Information" means all information received
from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or
any Lender on a non-confidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 10.13 Interest Rate Limitation. It is the intention of the
parties hereto to conform strictly to applicable interest, usury and criminal
laws and, anything herein to the contrary notwithstanding, the obligations of
the Borrower or any Material Subsidiary to a Lender, the Issuing Bank or any
Agent under this Agreement or any other Loan Document shall be subject to the
limitation that payments of interest shall not be required to the extent that
receipt thereof would be contrary to provisions of law applicable to such
Lender, the Issuing Bank or such Agent limiting rates of interest which may be
charged or collected by such Lender, the Issuing Bank or such Agent.
Accordingly, if the transactions contemplated hereby or thereby would be
illegal, unenforceable, usurious or criminal under laws applicable to a Lender,
the Issuing Bank or any Agent (including the laws of any jurisdiction whose laws
may be mandatorily applicable to such Lender or the Administrative Agent
notwithstanding anything to the contrary in this Agreement or any other Loan
Document) then, in that event, notwithstanding anything to the contrary in this
Agreement or any other Loan Document, it is agreed as follows:
(i) the provisions of this Section 10.13 shall govern and
control;
(ii) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, taken, reserved,
charged or received under this Agreement, or under any of the other
aforesaid agreements or otherwise in connection with this Agreement or
any other Loan Document by such Lender, the Issuing Bank or such Agent
shall under no circumstances exceed the maximum amount of interest
allowed by applicable law (such maximum lawful interest rate if any,
with respect to such Lender, the Issuing Bank and the Agents herein
called the "Highest Lawful Rate"), and any excess shall be canceled
automatically and if theretofore paid shall be credited to the Borrower
by such Lender, the Issuing Bank or such Agent (or, if such
consideration shall have been paid in full, such excess refunded to the
Borrower);
(iii) all sums paid, or agreed to be paid, to such Lender,
the Issuing Bank or such Agent for the use, forbearance and detention
of the indebtedness of the Borrower to such Lender, the Issuing Bank or
such Agent hereunder or under any Loan Document
79
shall, to the extent permitted by laws applicable to such Lender, the
Issuing Bank or such Agent, as the case may be, be amortized, prorated,
allocated and spread throughout the full term of such indebtedness
until payment in full so that the actual rate of interest is uniform
throughout the full term thereof;
(iv) if at any time the interest provided pursuant to this
Section 10.13 or any other clause of this Agreement or any other Loan
Document, together with any other fees or compensation payable pursuant
to this Agreement or any other Loan Document and deemed interest under
laws applicable to such Lender, the Issuing Bank or such Agent, exceeds
that amount which would have accrued at the Highest Lawful Rate, the
amount of interest and any such fees or compensation to accrue to such
Lender, the Issuing Bank or such Agent pursuant to this Agreement or
such other Loan Document shall be limited, notwithstanding anything to
the contrary in this Agreement or any other Loan Document, to that
amount which would have accrued at the Highest Lawful Rate, but any
subsequent reductions, as applicable, shall not reduce the interest to
accrue to such Lender, the Issuing Bank or such Agent pursuant to this
Agreement or such other Loan Document below the Highest Lawful Rate
until the total amount of interest accrued pursuant to this Agreement
or such other Loan Document, as the case may be, and such fees or
compensation deemed to be interest equals the amount of interest which
would have accrued to such Lender, the Issuing Bank or such Agent if a
varying rate per annum equal to the interest provided pursuant to any
other relevant Section hereof (other than this Section 10.13) or
thereof as applicable, had at all times been in effect, plus the amount
of fees which would have been received but for the effect of this
Section 10.13; and
(v) with the intent that the rate of interest herein
shall at all times be lawful, if the receipt of any funds owing
hereunder or under any other agreement related hereto (including any of
the other Loan Documents) by such Lender, the Issuing Bank or such
Agent would cause such Lender, the Issuing Bank or such Agent to charge
the Borrower a criminal rate of interest, the Lenders, the Issuing Bank
and the Agents agree that they will not require the payment or receipt
thereof or a portion thereof which would cause a criminal rate of
interest to be charged by such Lender, the Issuing Bank or such Agent,
as applicable, and if received such affected Lender, the Issuing Bank
or such Agent will return such funds to the Borrower so that the rate
of interest paid by the Borrower shall not exceed a criminal rate of
interest from the date this Agreement was entered into.
SECTION 10.14 Arranger; Syndication Agents. None of the Arranger or the
Syndication Agents shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or any other Loan Document other
than, except in the case of the Arranger, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Arranger or the Syndication
Agents shall have or be deemed to have any fiduciary relationship with any
Lender or the Borrower or any of its Subsidiaries. The Borrower and each Lender
acknowledge that it has not relied, and will not rely, on any of the Arranger or
the Syndication Agents in deciding to enter into this Agreement or in taking any
action hereunder or under the Loan Documents.
SECTION 10.15 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
80
BETWEEN OR AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
SECTION 10.16 USA Patriot Act Notice. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.
SECTION 10.17 Lender Indebtedness as Senior Indebtedness. The parties
hereto acknowledge and agree that the Lender Indebtedness is "Senior
Indebtedness" of the Borrower under and as defined in the Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
[SIGNATURE PAGES BEGIN ON NEXT PAGE]
81
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
TRINITY INDUSTRIES, INC.
By: /s/ John L. Adams
------------------------------
John L. Adams,
Executive Vice President
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
JPMORGAN CHASE BANK,
as a Lender and as Administrative Agent
By: /s/ Michael J. Lister
-------------------------------------
Michael J. Lister,
Vice President
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES,
as a Lender and as a Syndication Agent
By: /s/ Brian Haughney
-------------------------------------
Name: Brian Haughney
-------------------------------
Title: Director
------------------------------
By: /s/ Brian Schneider
-------------------------------------
Name: Brian Schneider
-------------------------------
Title: Vice President
------------------------------
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
THE ROYAL BANK OF SCOTLAND plc,
as a Lender and as a Syndication Agent
By: /s/ David Apps
-------------------------------------
Name: David Apps
-------------------------------
Title: Senior Vice President
------------------------------
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
BANK OF AMERICA, N.A., as a Lender
By: /s/ Steven A. Mackenzie
-------------------------------------
Name: Steven A. Mackenzie
-------------------------------
Title: Vice President
------------------------------
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
BNP PARIBAS, as a Lender
By: /s/ Jeff Tebeaux
-------------------------------------
Name: Jeff Tebeaux
-------------------------------
Title: Vice President
------------------------------
By: /s/ Lloyd Cox
-------------------------------------
Name: Lloyd Cox
-------------------------------
Title: Managing Director
------------------------------
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ William E. Zarrett
-------------------------------------
Name: William E. Zarrett
-------------------------------
Title: Managing Director
------------------------------
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
WACHOVIA BANK, N.A., as a Lender
By: /s/ Frederick E. Blumer
-------------------------------------
Name: Frederick E. Blumer
-------------------------------
Title: Director
------------------------------
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
THE BANK OF TOKYO - MITSUBISHI, LTD.,
as a Lender
By: /s/ D. Barnell
-------------------------------------
Name: D. Barnell
-------------------------------
Title: Vice President
------------------------------
By: /s/ John M. Mearns
-------------------------------------
Name: J. Mearns
-------------------------------
Title: VP & Manager
------------------------------
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ Karl Studer
-------------------------------------
Name: Karl Studer
-------------------------------
Title: Director
------------------------------
By: /s/ Andreas M. Rupp
-------------------------------------
Name: Andreas M. Rupp
-------------------------------
Title: Assistant Vice President
------------------------------
[Signature Page]
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BYAND AMONG
TRINITY INDUSTRIES, INC.,
AS BORROWER, JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
AND THE LENDERS LISTED ON SCHEDULE 2.01 HERETO
SOUTHWEST BANK OF TEXAS, N.A., as a
Lender
By: /s/ Melinda N. Jackson
-------------------------------------
Name: Melinda N. Jackson
-------------------------------
Title: Senior Vice President
------------------------------
[Signature Page]
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement
dated as of March 10, 2004 (as amended and in effect on the date hereof, the
"Credit Agreement"), among Trinity Industries, Inc., the Lenders named therein,
JPMorgan Chase Bank, as Administrative Agent for the Lenders, and the other
Agents named therein. Terms defined in the Credit Agreement are used herein with
the same meanings.
The Assignor named herein hereby sells and assigns, without
recourse, to the Assignee named herein, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Assignment
Date set forth herein, the interests set forth herein (the "Assigned Interest"),
in the Assignor's rights and obligations under the Credit Agreement and the
other Loan Documents, including, without limitation, the interests set forth
herein, in the Revolving Commitment of the Assignor on the Assignment Date and
Competitive Loans and Loans owing to the Assignor which are outstanding on the
Assignment Date, together with the participations in Letters of Credit, LC
Disbursements held by the Assignor on the Assignment Date, but excluding accrued
interest and fees to and excluding the Assignment Date. The Assignee hereby
acknowledges receipt of a copy of the Credit Agreement and the other Loan
Documents. From and after the Assignment Date (i) the Assignee shall be a party
to and be bound by the provisions of the Credit Agreement and the other Loan
Documents and, to the extent of the Assigned Interest, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Loan Documents.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The Assignee shall pay the fee payable to the
Administrative Agent pursuant to Section 10.04(b) of the Credit Agreement (to
the extent required by such Section 10.04(b)).
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of Texas.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
A-1
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Principal Amount Percentage Assigned of
Assigned Facility/Revolving Commitment
(and identifying (set forth, to at least 8 decimals, as
information as to a percentage of the Facility and the
individual Competitive aggregate Revolving Commitments of all
Facility Loans) Lenders thereunder)
- --------------------------------------------------------------------------------------------------------------
Revolving Commitment Assigned: $ %
- --------------------------------------------------------------------------------------------------------------
Loans:
- --------------------------------------------------------------------------------------------------------------
Competitive Loans:
- --------------------------------------------------------------------------------------------------------------
The terms set forth above and herein are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By: _________________________________
Name: ___________________________
Title:___________________________
[NAME OF ASSIGNEE], as Assignee
By: _________________________________
Name: ___________________________
Title:___________________________
A-2
The undersigned hereby consent to the within assignment:
Trinity Industries, Inc. JPMorgan Chase Bank,
as Administrative Agent
By: _________________________________ By: _________________________________
Name: ___________________________ Name: ___________________________
Title:___________________________ Title:___________________________
JPMorgan Chase Bank,
as Issuing Bank
By: _________________________________
Name: ___________________________
Title:___________________________
- -----------------------
(1) Consents to be included to the extent required by Section 10.04(b) of
the Credit Agreement.
A-3
EXHIBIT B
[FORM OF]
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of ____________, 200_, is
made by _________________, a _________________ (the "Guarantor"), in favor of
JPMORGAN CHASE BANK, as Administrative Agent (together with all successors and
assigns thereto, the "Administrative Agent") for each of the Lender Parties.
WITNESSETH:
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as
of March 10, 2004 (together with all amendments, supplements, restatements and
other modifications, if any, from time to time thereafter made thereto, the
"Credit Agreement"), among Trinity Industries, Inc., a Delaware corporation (the
"Borrower"), the various financial institutions as are, or may from time to time
become, parties to the Credit Agreement (the "Lenders"), the various financial
institutions as are or may from time to time become Agents under the Credit
Agreement, and JPMorgan Chase Bank, as Administrative Agent for the Lenders, the
Lenders have agreed to extend commitments to make Loans to, and the Issuing Bank
has agreed to issue Letters of Credit for the account of, the Borrower; and
WHEREAS, as a condition precedent to the making of the initial Loans
and the issuance of the initial Letter of Credit under the Credit Agreement, the
Guarantor is required to execute and deliver this Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to, and the Letters of Credit
issued from time to time for the account of, the Borrower and its Subsidiaries
by the Lenders and the Issuing Bank, as the case may be, pursuant to the Credit
Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to, and to induce the Issuing Bank to issue the
Letters of Credit (including the initial Letter of Credit) for the account of,
the Borrower and its Subsidiaries pursuant to the Credit Agreement and the
Lender Parties to extend financial accommodations, the Guarantor agrees, for the
benefit of each Lender Party, as follows:
B-1
ARTICLE 1
DEFINITIONS
Section 1.01 CERTAIN TERMS. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender Party" means, as the context may require, any Lender, any
Agent, any Issuing Bank, and each of its respective successors, transferees and
assigns.
"Lenders" is defined in the first recital.
"Loan Parties" means, collectively, the Borrower, the Guarantor and any
other Subsidiary of the Borrower which executes a Loan Document, and "Loan
Party" means any one of the foregoing.
"Obligations" means the sum of (i) the Aggregate Revolving Credit
Exposures of the Lenders under the Loan Documents plus (ii) all accrued but
unpaid interest and fees owing to the Lender Parties under the Loan Documents
plus (iii) all other obligations (monetary or otherwise) of the Borrower or any
Subsidiary of the Borrower to any Lender Party, whether or not contingent,
arising under or in connection with any of the Loan Documents.
Section 1.02 CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty, including
its preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE 2
GUARANTY PROVISIONS
Section 2.01 GUARANTY. The Guarantor hereby absolutely, unconditionally
and irrevocably
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of all Obligations of the Borrower and each other Loan Party now or
hereafter existing under the Credit Agreement and each other Loan Document to
which the Borrower or such other Loan Party is or may become a party, whether
for principal, interest, fees, expenses or otherwise (including all
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such amounts which would become due but for the operation of the automatic stay
under Section 362(4) of the United States Bankruptcy Code, 11 U.S.C. Section
362(4), and the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. Section 502(b) and Section 506(b)), and
(b) indemnifies each Lender Party for any and all costs and
expenses (including reasonable attorney's fees and expenses) incurred by such
Lender or such holder, as the case may be, in enforcing any rights under this
Guaranty;
provided, however, that the Guarantor shall be liable under this Guaranty for
the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and the Guarantor specifically agrees that it shall not
be necessary or required that any Lender Party exercise any right, assert any
claim or demand, or enforce any remedy whatsoever against the Borrower or any
other Loan Party (or any other Person) before or as a condition to the
obligations of the Guarantor hereunder.
Section 2.02 ACCELERATION OF GUARANTY. The Guarantor agrees that, in
the event that the Obligations have been accelerated pursuant to Article VIII of
the Credit Agreement, the Guarantor will pay to the Administrative Agent for
itself and as agent for the Lender Parties forthwith the full amount of all such
Obligations.
Section 2.03 GUARANTY ABSOLUTE, ETC. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of the
Borrower and each other Loan Party has been paid in full, all obligations of the
Guarantor hereunder shall have been paid in full and all Revolving Commitments
shall have terminated and all Letters of Credit shall have terminated or
expired. The Guarantor guarantees that the Obligations of the Borrower and each
other Loan Party will be paid strictly in accordance with the terms of the
Credit Agreement and each other Loan Document under which they arise, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Lender Party or any holder of
any note with respect thereto. The liability of the Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of
the Credit Agreement or any other Loan Document;
(b) the failure of any Lender Party
(1) to assert any claim or demand or to enforce
any right or remedy against the Borrower, any other Loan Party or any
other Person (including any other guarantor) under the provisions of
the Credit Agreement, any other Loan Document, or otherwise, or
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(2) to exercise any right or remedy against any
other guarantor of any Obligations of the Borrower or any other Loan
Party;
(c) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations of the Borrower or
any other Loan Party, or any other extension, compromise, or renewal of any
Obligation of the Borrower or any other Loan Party;
(d) any reduction, limitation, impairment or termination
of any Obligations of the Borrower or any other Loan Party for any reason (other
than indefeasible payment in full in cash of the Obligations), including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to (and the Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality, non-genuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any Obligations
of the Borrower, any other Loan Party or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of the
Credit Agreement or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or release or
addition of, or consent to departure from, any other guaranty, held by any
Lender Party securing any of the Obligations of the Borrower or any other Loan
Party; or
(g) any other circumstance (other than indefeasible
payment in full in cash of the Obligations) which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower, any
other Loan Party, any surety, or any guarantor.
Section 2.04 REINSTATEMENT, ETC. The Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Lender Party, upon the
insolvency, bankruptcy or reorganization of the Borrower, any other Loan Party
or otherwise, all as though such payment had not been made.
Section 2.05 WAIVER, ETC. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrower or any other Loan Party and this Guaranty and any
requirement that the Administrative Agent or any other Lender Party protect,
secure, perfect or insure any Lien, or any property subject thereto, or exhaust
any right or take any action against the Borrower, any other Loan Party or any
other Person (including any other guarantor) or any collateral securing the
Obligations of the Borrower or any other Loan Party, as the case may be.
Section 2.06 WAIVER OF SUBROGATION. Until the indefeasible payment in
full in cash of all Obligations and the termination or expiration of all
Revolving Commitments and Letters of Credit, the Guarantor hereby irrevocably
waives any claim or other rights which it may now or
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hereafter acquire against the Borrower or any other Loan Party that arise from
the existence, payment, performance or enforcement of the Guarantor's
obligations under this Guaranty or any other Loan Document, including any right
of subrogation, reimbursement, exoneration, or indemnification, any right to
participate in any claim or remedy of the Lender Parties against the Borrower or
any other Loan Party or any collateral which the Administrative Agent now has or
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including the right to take or receive
from the Borrower or any other Loan Party, directly or indirectly, in cash or
other property or by set-off or in any manner, payment or security on account of
such claim or other rights. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, such amount shall be deemed to have been
paid to the Guarantor for the benefit of, and held in trust for, the Lender
Parties, and shall forthwith be paid to the Administrative Agent for the benefit
of the Lender Parties to be credited and applied to the Obligations, whether
matured or unmatured. The Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by the Credit
Agreement and that the waiver set forth in this Section is knowingly made in
contemplation of such benefits.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.01 REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants unto each Lender Party as set forth in this Article.
Section 3.02 ORGANIZATION; POWERS. The Guarantor is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
Section 3.03 AUTHORIZATION; ENFORCEABILITY. The execution, delivery and
performance by the Guarantor of this Guaranty and each other Loan Document
executed or to be executed by it are within the Guarantor's corporate,
partnership or limited liability company powers (as applicable), and have been
duly authorized by all necessary corporate, partnership or limited liability
company action (as applicable), and if required and applicable, stockholder
action. This Guaranty has been duly executed and delivered by the Guarantor and
constitutes, and each other Loan Document executed or to be executed by the
Guarantor, when executed and delivered by the Guarantor, will constitute, a
legal, valid and binding obligation of the Guarantor, enforceable in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
Section 3.04 APPROVALS; NO CONFLICTS. The execution, delivery and
performance by the Guarantor of this Guaranty and each other Loan Document
executed or to be executed by it, (a) do not require any approval of any
Governmental Authority or other third party approvals, except such as have been
obtained or made and are in full force and effect and except filings
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necessary to perfect Liens created in connection with this Guaranty, (b) will
not violate any applicable Governmental Rule or the articles of organization,
formation or incorporation (or comparable document), bylaws, operating
agreement, partnership agreement, limited liability company agreement or similar
documents (as applicable) of the Guarantor or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement, or other instrument binding upon the Guarantor or its assets, or give
rise to a right thereunder to require any payment to be made by the Guarantor
and (d) will not result in the creation or imposition of any Lien on any asset
of the Guarantor except Liens created under the Loan Documents.
Section 3.05 BENEFIT TO THE GUARANTOR. The Guarantor is a wholly-owned
subsidiary of the Borrower; and the Guarantor's guaranty pursuant to this
Guaranty reasonably may be expected to benefit, directly or indirectly, the
Guarantor; and the Guarantor has determined that this Guaranty is necessary and
convenient to the conduct, promotion and attainment of the business of the
Guarantor and the Borrower.
Section 3.06 LITIGATION MATTERS. Except for Disclosed Matters, there
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Guarantor, threatened
against or affecting the Guarantor or any of its Subsidiaries or any of their
respective properties, businesses, assets or revenues, (i) as to which there is
a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that question the validity or enforceability of any Loan Documents or seek to
enjoin or prevent the Transactions. Since the date of this Guaranty, there has
been no change in the status of the Disclosed Matters that, individually or in
the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
Section 3.07 SOLVENCY. Immediately after entering into this Guaranty,
the Guarantor will be Solvent. As used herein, the term "Solvent" means, with
respect to the Guarantor, a condition under which (a) the fair market value of
the Guarantor's assets is, on the date of determination greater than the total
amount of the Guarantor's liabilities (including contingent and unliquidated
liabilities) at such time; and (b) the Guarantor is able to pay all of its
liabilities as such liabilities mature. For purposes of this definition (i) the
amount of the Guarantor's contingent or unliquidated liabilities at any time
shall be the amount which, in light of all the facts and circumstances then
existing, represents the amount which can reasonably be expected to become an
actual or matured liability, (ii) the "fair saleable value" of an asset shall be
the amount which may be realized within a reasonable time either through
collection or sale of such asset at its regular market value, and (iii) the
"regular market value" of an asset shall be the amount which a capable and
diligent business person could obtain for such asset from an interested buyer
who is willing to purchase such asset under ordinary selling conditions.
Section 3.08 CREDIT AGREEMENT REPRESENTATIONS. All representations and
warranties made by the Borrower with respect to the Guarantor set forth in
Article III of the Credit Agreement are true and correct in all respects as of
the date hereof.
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ARTICLE 4
COVENANTS, ETC.
Section 4.01 COVENANTS. Until the payment in full in cash of all
Obligations and the termination or expiration of all Revolving Commitments and
Letters of Credit, the Guarantor covenants and agrees that the Guarantor will
perform, comply with, observe and fulfill each of the covenants, agreements and
obligations contained in the Credit Agreement, including without limitation,
Article VI and Article VII of the Credit Agreement, pertaining or otherwise
applicable to the Guarantor in its capacity as a Loan Party and a Subsidiary.
The Guarantor hereby irrevocably and unconditionally agrees to be bound by such
covenants, agreements and obligations applicable to it in such capacities as if
the Guarantor were a party to the Credit Agreement and such covenants,
agreements, and obligations applicable to it in such capacities are hereby
reaffirmed by the Guarantor.
ARTICLE 5
MISCELLANEOUS PROVISIONS
Section 5.01 LOAN DOCUMENT. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
Section 5.02 BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS;
ASSIGNMENT. This Guaranty shall be binding upon the Guarantor and its
successors, transferees and assigns and shall inure to the benefit of and be
enforceable by the Administrative Agent, each other Lender Party and their
respective successors, transferees and assigns permitted by Section 10.04 of the
Credit Agreement.
Section 5.03 AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent in accordance with Section 10.02(b) of
the Credit Agreement, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Section 5.04 ADDRESSES FOR NOTICES TO THE GUARANTOR. All notices and
other communications hereunder to the Guarantor shall be in writing (including
telecopy communication) and mailed or telecopied or delivered to it, addressed
to it at the address set forth below its signature hereto, or at such other
address as shall be designated by the Guarantor in a written notice to the
Administrative Agent at the address specified in the Credit Agreement complying
as to delivery with the terms of this Section. All such notices and other
communications shall be effective as provided in Section 10.01 of the Credit
Agreement.
Section 5.05 NO WAIVER REMEDIES. In addition to, and not in limitation
of, Section 2.03 and Section 2.05, no failure on the part of any Lender Party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the
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exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 5.06 HEADINGS. Article and Section headings used herein are for
convenience of reference only, are not part of this Guaranty and shall not
affect the construction of, or be taken into consideration in interpreting, this
Guaranty.
Section 5.07 SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender Party is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender Party to or for the
credit or the account of the Guarantor or any of its Subsidiaries against any of
and all the obligations of Guarantor now or hereafter existing under this
Guaranty held by such Lender, irrespective of whether or not such Lender Party
shall have made any demand under this Guaranty and although such obligations may
be unmatured; provided, however, that any such set-off and application shall be
subject to the provisions of Section 2.18 of the Credit Agreement.
Section 5.08 SEVERABILITY. Any provision of this Guaranty held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality, and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 5.09 GOVERNING LAWS. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
(OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF TEXAS
AND, TO THE EXTENT CONTROLLING, LAWS OF THE UNITED STATES OF AMERICA.
Section 5.10 WAIVER OF JURY TRIAL. GUARANTOR HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). GUARANTOR (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT SUCH LENDER PARTIES HAVE BEEN INDUCED TO ENTER INTO THE LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 5.11 NO ORAL AGREEMENTS. THIS WRITTEN GUARANTY AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AS TO THE SUBJECT MATTER HEREOF AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF
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PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[SIGNATURE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
_____________________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
Address: ____________________________
____________________________
____________________________
Attention: __________________________
Telephone: __________________________
Telecopy: ___________________________
B-9
EXHIBIT C
[FORM OF]
BORROWING REQUEST
___________, 200___
JPMorgan Chase Bank
as Administrative Agent
for the Lenders referred to below
c/o JPMorgan Chase Bank
_______________________________
_______________________________
_______________________________
Attention: ________________
Facsimile: ________________
JPMorgan Chase Bank
as Administrative Agent
for the Lenders referred to below
c/o JPMorgan Chase Bank
_______________________________
_______________________________
_______________________________
Attention: ________________
Facsimile: ________________
Re: Credit Agreement (hereinafter defined)
Dear Sirs:
Reference is made to that certain Amended and Restated Credit
Agreement, dated as of March 10, 2004 (together with all amendments, if any,
from time to time made thereto, the "Credit Agreement"), among Trinity
Industries, Inc., a Delaware corporation (the "Borrower"), the Lenders party
thereto, and JPMorgan Chase Bank, as the Administrative Agent (the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meanings. This notice constitutes a Borrowing Request and the
Borrower hereby requests a Borrowing under the Credit Agreement, and in that
connection the Borrower specifies the following information with respect to the
Borrowing requested hereby:
(A) Principal amount of Borrowing(1):_______________________
(B) Interest rate basis(2):
- -----------------------
(1) Not less than $10,000,000 and an integral multiple of $2,000,000 (or
aggregate unused balance of the Revolving Commitments in the case of an
ABR Borrowing).
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(C) Effective date (which is a Business Day):
(D) Date of maturity (which is a Business Day):
(E) Interest Period(3):
If the Borrowing results in an increase in the aggregate outstanding
principal amount of the Loans, the Borrower hereby represents and warrants that
the conditions specified in paragraphs (a) and (b) of Section 4.02 of the Credit
Agreement are satisfied.
The Borrower has caused this Borrowing Request to be executed and
delivered by its Authorized Officer this _____ day of ___________, 200____.
Very truly yours,
TRINITY INDUSTRIES, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
- --------------------------
(2) Eurodollar Borrowing or ABR Borrowing.
(3) If applicable, selected period must comply with the definition of
"Interest Period" and end not later than the Revolving Commitment
Termination Date.
C-2
EXHIBIT D
[FORM OF]
INTEREST ELECTION REQUEST
JPMorgan Chase Bank
as Administrative Agent
for the Lenders referred to below
c/o JPMorgan Chase Bank
_______________________________
_______________________________
_______________________________
Attention: ________________
Facsimile: ________________
JPMorgan Chase Bank
as Administrative Agent
for the Lenders referred to below
c/o JPMorgan Chase Bank
_______________________________
_______________________________
_______________________________
Attention: ________________
Facsimile: ________________
Re: Credit Agreement (hereinafter defined)
Dear Sirs:
Reference is made to that certain Amended and Restated Credit
Agreement, dated as of March 10, 2004 (together with all amendments, if any,
from time to time made thereto, the "Credit Agreement"), among Trinity
Industries, Inc., a Delaware corporation (the "Borrower"), the Lenders party
thereto, and JPMorgan Chase Bank, as Administrative Agent (the "Administrative
Agent"). Terms defined in the Credit Agreement are used herein with the same
meanings. This notice constitutes an Interest Election Request and the Borrower
hereby requests the conversion or continuation of a Borrowing under the Credit
Agreement, and in that connection the Borrower specifies the following
information with respect to the Borrowing to be converted or continued as
requested hereby:
(A) Borrowing to which this request applies(1):
(B) Principal amount of Borrowing to be converted/continued(2):
(C) Effective date of election (which is a Business Day):
- ------------------
(1) Specify existing Type and last day of current Interest Period.
(2) Not less than $10,000,000 or an integral multiple of $2,000,000
D-1
(D) Interest rate basis of resulting Borrowing(3):
(E) Interest Period of resulting Borrowing(4):
Very truly yours,
TRINITY INDUSTRIES, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
- -----------------------
(3) Eurodollar Borrowing or ABR Borrowing.
(4) Which must comply with the definition of "Interest Period" and end not
later than the Revolving Commitment Termination Date.
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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 Amended and Restated Credit Agreement dated as
of March 10, 2004 (as amended, restated, supplemented or otherwise modified and
in effect from time to time, the "Credit Agreement"), by and among Trinity
Industries, Inc., a Delaware corporation ("Borrower"), the Lenders named
therein, JPMorgan Chase Bank, as Administrative Agent to the Lenders
("Administrative Agent"), and the other Agents named therein. Capitalized terms
used herein without definition and which are defined in the Credit Agreement
shall have the respective meanings assigned to such terms in the Credit
Agreement.
Pursuant to Section 6.01(c) of the Credit Agreement, the undersigned Financial
Officer of Borrower hereby certifies to Administrative Agent as follows: (a) the
information furnished in the calculations attached hereto was true and correct
as of the last day of the Fiscal [YEAR] [QUARTER] ended _____________; (b) as of
the date of this Compliance Certificate, there exists no Default or Event of
Default or condition which would, with either or both the giving of notice or
the lapse of time, result in a Default of an Event of Default; and (c) the
financial statements delivered herewith were prepared in accordance with
generally accepted accounting principles applied on a basis consistent with
prior periods.
IN WITNESS WHEREOF, the undersigned officer has executed this Compliance
Certificate as of the date first written above.
TRINITY INDUSTRIES, INC.
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
E-1
COMPLIANCE CERTIFICATE WORKSHEET
1. MINIMUM INTEREST COVERAGE RATIO - SECTION 7.09(a)
(a) consolidated net income $____________________
(b) to the extent deducted in the calculation of consolidated net income, $____________________
Interest Expense
(c) to the extent deducted in the calculation of consolidated net income, $____________________
depreciation and amortization
(d) to the extent deducted in the calculation of consolidated net income, $____________________
income and franchise tax expenses
(e) to the extent deducted in the calculation of consolidated net income, $____________________
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 assets
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, until September $____________________
30, 2006, the ICR Capex Exclusion Amount, the aggregate amount of
which, as of the date hereof, is $_________)
(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 items (h) and (i) above _____________to 1.00
divided by item (j) above)
(l) Minimum Interest Coverage Ratio (from Section 7.09(a)) 2.25 to 1.00
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2. MAXIMUM LEVERAGE RATIO - SECTION 7.09(b)
(a) Indebtedness (other than the TILC Conduit Indebtedness and the ETC $____________________
Indebtedness), after giving effect to any permitted application of
available cash
(b) LC Exposure $____________________
(c) Total Debt (item (a) above minus item (b) above) $____________________
(d) EBITDA (from item 1(g) above) less item 1(h) above $____________________
(e) Leverage Ratio (item (c) above divided by item (d) above) _____________ to 1.00
(f) Maximum Leverage Ratio (from Section 7.09(b)) 3.25 to 1.00
3. MINIMUM NET WORTH - SECTION 7.09(c)
(a) Amount from Section 7.09(c)(i) of the Credit Agreement $ 860,000,000
(b) cumulative consolidated net income $____________________
(c) 50% of item (b) above $____________________
(d) 100% of Net Cash Proceeds from the issuance of Equity $____________________
(e) Consolidated Net Worth $____________________
(f) Minimum Consolidated Net Worth (the sum of items (a), (c) and (d) above) $____________________
4. MINIMUM ASSET COVERAGE RATIO - SECTION 7.09(d)
(a) Book Value of accounts receivable (net of applicable reserves) $____________________
(b) Book Value of inventory (net of applicable reserves) $____________________
(c) Asset Value (the sum of items (a) and (b) above) $____________________
(d) Aggregate Revolving Credit Exposure $____________________
(e) Existing LC Exposure $____________________
(f) Asset Coverage Ratio (item (c) above divided by the sum of items (d) _____________ to 1.00
and (e) above)
(g) Minimum Asset Coverage Ratio 1.75 to 1.00
E-3
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
(b) cash interest payments made with respect to the TILC Conduit $____________________
Indebtedness and the ETC Indebtedness
(c) TILC Interest Coverage Ratio (item (a) above divided by item (b) above) _____________ to 1.00
(d) Minimum TILC Interest Coverage Ratio (from Section 7.09(e)) 1.50 to 1.00
6. CAPITAL EXPENDITURES - SECTION 7.11
(a) Capital Expenditures (Leasing Company) $____________________
(b) Maximum Capital Expenditures (Leasing Company) per Fiscal Year (from $ 150,000,000
Section 7.11)
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EXHIBIT F
[FORM OF]
REVOLVING CREDIT NOTE
$____________ ___________, 200_
FOR VALUE RECEIVED, the undersigned, TRINITY INDUSTRIES, INC., a
Delaware corporation (the "Borrower"), promises to pay to the order of
____________________________ (the "Lender") on the Revolving Commitment
Termination Date the principal sum of ___________ MILLION AND NO/100 DOLLARS
($________) or, if less, the aggregate unpaid principal amount of all Revolving
Loans made by the Lender pursuant to that certain Amended and Restated Credit
Agreement, dated as of March 10, 2004 (together will all amendments and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Borrower, the Lenders party thereto (including the
Lender), Dresdner Bank AG, New York and Grand Cayman Branches, and The Royal
Bank of Scotland plc, as Syndication Agents, and JPMorgan Chase Bank, as
Administrative Agent (the "Administrative Agent").
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Revolving Credit Note is one of the Revolving Credit Notes
referred to in, and evidences Indebtedness incurred under, the Credit Agreement,
to which reference is made for a description of the security for this Revolving
Credit Note and for a statement of the terms and conditions on which the
Borrower is permitted and required to make prepayments and repayments of
principal of the Indebtedness evidenced by this Revolving Credit Note and on
which such Indebtedness may be declared to be immediately due and payable.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
TRINITY INDUSTRIES, INC.
By: ___________________________
Name: ___________________________
Title: ___________________________
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REVOLVING LOANS AND PRINCIPAL PAYMENTS
Interest Amount of Unpaid
Amount of Period Principal Principal Notation
Date Loan Made (if applicable) Repaid Balance Total Made By
- ---- --------- --------------- ------ ------- ----- --------
- ---- --------- --------------- ------ ------- ----- --------
- ---- --------- --------------- ------ ------- ----- --------
- ---- --------- --------------- ------ ------- ----- --------
- ---- --------- --------------- ------ ------- ----- --------
- ---- --------- --------------- ------ ------- ----- --------
- ---- --------- --------------- ------ ------- ----- --------
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EXHIBIT G
[FORM OF]
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") dated as of ____________,
200__, is by and among TRINITY INDUSTRIES, INC., a Delaware corporation (the
"Borrower") and the undersigned subsidiaries of the Borrower and any subsidiary
who hereafter becomes a party hereto (each, including the Borrower, a "Debtor"
and collectively the "Debtors") and JPMORGAN CHASE BANK, as collateral agent for
certain parties under the hereafter defined Intercreditor Agreement (the
"Agent").
R E C I T A L S:
The Debtors, the Agent and certain other parties have entered into that
certain Intercreditor Agreement dated as of March 10, 2004 (as the same may be
amended, restated or otherwise modified from time to time, the "Intercreditor
Agreement"). This Agreement is executed pursuant to the terms of the
Intercreditor Agreement and as required by the terms of the Transaction
Documents (as such term is defined in the Intercreditor Agreement).
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in fulfillment of the requirements of the Transaction
Documents, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following
terms have the following meanings:
"Collateral" has the meaning specified in Section 2.01 of this
Agreement.
"Obligations" has the meaning ascribed to such term in the
Intercreditor Agreement; provided that with respect to each Debtor, the
obligations secured hereby shall be limited, with respect to each
Debtor, to an aggregate amount equal to the largest amount that would
not render such Debtor's obligations hereunder and under all other
Transaction Documents subject to avoidance under Section 544 or 548 of
the United States Bankruptcy Code or under any applicable state law
relating to fraudulent transfers or conveyances.
"Subsidiary Joinder Agreement" means a Subsidiary Joinder
Agreement in substantially the form of Exhibit A hereto.
"UCC" means the Uniform Commercial Code as in effect in the
State of Texas from time to time.
Section 1.01 Other Definitional Provisions. Terms used herein that are
defined in the Intercreditor Agreement and are not otherwise defined herein
shall have the meanings therefor specified in the Intercreditor Agreement.
References to "Sections," "subsections," "Exhibits" and "Schedules" shall be to
Sections, subsections, Exhibits and Schedules, respectively, of this Agreement
unless otherwise specifically provided. All definitions contained in this
Agreement are equally applicable to the singular and plural forms of the terms
defined. All references to statutes and regulations shall include
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any amendments of the same and any successor statutes and regulations.
References to particular sections of the UCC should be read to refer also to
parallel sections of the Uniform Commercial Code as enacted in each state or
other jurisdiction where any portion of the Collateral is or may be located.
Terms used herein, which are defined in the UCC, unless otherwise defined herein
or in the Intercreditor Agreement, shall have the meanings determined in
accordance with the UCC.
ARTICLE II
SECURITY INTEREST
Section 2.01 Security Interest. As collateral security for the prompt
payment and performance in full when due of the Obligations (whether at stated
maturity, by acceleration or otherwise), each Debtor pledges and assigns to the
Agent, and grants to the Agent a continuing lien on and security interest in,
all of such Debtor's right, title and interest in and to the following, whether
now owned or hereafter arising or acquired and wherever located (collectively
with respect to any Debtor or all Debtors, as the context requires, the
"Collateral"):
(a) all accounts, and all documents, chattel paper,
instruments, general intangibles and all books and records pertaining to or
otherwise related to, all accounts receivable, and all products and proceeds
thereof; and
(b) all inventory and all accessions thereto and all
products and proceeds thereof; provided, that, the term "Collateral" shall
expressly not include the "Excluded Collateral" (as such term is defined in the
Revolver Agreement [as defined in the Intercreditor Agreement]).
Section 2.02 Debtor Remains Liable. Notwithstanding anything to the
contrary contained herein, (a) each Debtor shall remain liable under the
documentation included in the Collateral to the extent set forth therein to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by the Agent of any of
its rights or remedies hereunder shall not release any Debtor from any of its
duties or obligations under such documentation, (c) the Agent shall not have any
obligation under any of such documentation included in the Collateral by reason
of this Agreement, and (d) the Agent shall not be obligated to perform any of
the obligations of any Debtor thereunder or to take any action to collect or
enforce any claim for payment assigned hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
As of the date of this Agreement, each Debtor represents and warrants
to the Agent and the Creditors that:
Section 3.01 Location of Inventory; Third Parties in Possession. All of
its inventory is located at the places specified in Schedule 3.01 for such
Debtor. Schedule 3.01 correctly identifies the landlords or mortgagees, if any,
of each of its locations identified in Schedule 3.01. Except for the Persons
identified on Schedule 3.01 who hold Collateral in the capacity designated on
Schedule 3.01, no Person other than the Debtors and the Agent has possession of
any of the Collateral. None of its Collateral has been located in any location
within the past four months other than as set forth on Schedule 3.01 for such
Debtor.
Section 3.02 Office Locations; Fictitious Names; Tax I.D. Number. Its
principal place of business, chief executive office and jurisdiction of
organization are located at the place or places
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identified for it on Schedule 3.01. Within the last four months it has not had
any other chief place of business, chief executive office, or jurisdiction of
organization except as disclosed on Schedule 3.01. Schedule 3.01 also sets forth
all other places where it keeps its books and records and all other locations
where it has a place of business. It does not do business and has not done
business during the past five years under any trade - name or fictitious
business name except as disclosed on Schedule 3.02. Schedule 3.02 sets forth an
accurate list of all names of all of its predecessor companies including the
names of any entities it acquired (by stock purchase, asset purchase, merger or
otherwise), the chief place of business, chief executive office and jurisdiction
of organization of each such predecessor company and each jurisdiction in which
any collateral purchased from such companies was located at the time of
purchase. For purposes of the foregoing, a "predecessor company" shall mean,
with respect to a Debtor, any Person whose assets or equity interests are
acquired by such Debtor or who was merged with or into such Debtor within the
last four months prior to the date hereof. Its United States Federal Income Tax
I.D. Number and organizational identification number are set forth on Schedule
3.02.
Section 3.03 Delivery of Collateral. It has delivered to the Agent all
Collateral the possession of which is necessary to perfect the security interest
of the Agent therein.
Section 3.04 Organization; Powers. It is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a material adverse
effect on such Debtor or its Collateral, is qualified to do business in, and is
in good standing in, every jurisdiction where such qualification is required.
Section 3.05 Authorization; Enforceability. This Agreement and the
other Transaction Documents to be entered into by each Debtor are within such
Debtor's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by each Debtor and constitutes, and each other
Transaction Document to which any Debtor is to be a party, when executed and
delivered, will constitute, a legal, valid and binding obligation of such Debtor
(as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
Section 3.06 Governmental Approvals; No Conflicts. The execution,
performance and delivery of the Transaction Documents by each Debtor (a) does
not require any consent or approval of, registration or filing with (other than
the inclusion of this Agreement as an exhibit to routine filings under the
Securities Exchange Act of 1934 and filings required to perfect the security
interests herein granted required by the Uniform Commercial Code), or any other
action by, any governmental authority, (b) will not violate any applicable law
or regulation or the charter, by-laws or other organizational documents of any
Debtor or any order of any governmental authority, (c) will not violate in any
material respect or result in a material default under any indenture, material
agreement or other instrument binding upon any Debtor or its assets, or give
rise to a right thereunder to require any payment to be made by any Debtor, and
(d) will not result in the creation or imposition of any security interest or
lien on any asset of any Debtor except as specifically contemplated hereby.
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ARTICLE IV
COVENANTS
Each Debtor covenants and agrees with the Agent that until the
Obligations are paid and performed in full and the Intercreditor Agreement
terminates:
Section 4.01 Accounts. It shall, in accordance with its customary
business practices, endeavor to collect or cause to be collected from each
account debtor under its accounts, as and when due, any and all amounts owing
under such accounts. Without the prior written consent of the Agent, it shall
not, except in the ordinary course of business when no Event of Default exists,
(a) grant any extension of time for any payment with respect to any of its
accounts beyond 120 days after such payment's due date, (b) compromise,
compound, or settle any of its accounts for less than the full amount thereof,
(c) release, in whole or in part, any Person liable for payment of any of its
accounts, (d) allow any credit or discount for payment with respect to any of
its accounts other than trade or other customary discounts granted in the
ordinary course of business, or (e) release any lien, security interest or
guaranty securing any of its accounts unless the account has been paid.
Section 4.02 Further Assurances; Exceptions to Perfection. At any time
and from time to time, upon the request of the Agent, and at its sole expense,
it shall, promptly execute and deliver all such further agreements, instruments
and documentation and take such further action as the Agent may reasonably deem
necessary or appropriate to preserve and perfect the Agent's security interest
in the Collateral and carry out the provisions and purposes of this Agreement or
to enable the Agent to exercise and enforce its rights and remedies hereunder
with respect to any of the Collateral. Without limiting the generality of the
foregoing, it shall upon reasonable request by the Agent, (i) execute and
deliver to the Agent such financing statements as the Agent may from time to
time require (each Debtor also hereby authorizes the Agent to file such
financing statements without Debtor's signature naming it as debtor, the Agent
as secured party and describing the Collateral, in each case as the Agent may
deem appropriate); (ii) take such action as the Agent may request to permit the
Agent to have control over any deposit account; (iii) deliver to the Agent all
Collateral the possession of which is necessary to perfect the security interest
therein, duly endorsed and/or accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the Agent; and
(iv) execute and deliver to the Agent such other agreements, instruments and
documentation as the Agent may reasonably require to perfect and maintain the
validity, effectiveness and priority of the security interests intended to be
created by this Agreement; except that, prior to the occurrence of a Potential
Default:
(a) the Debtors may retain and utilize in the ordinary
course of business proceeds of accounts;
(b) the Debtors may retain and utilize in the ordinary
course of business any letters of credit received in the ordinary course of
business;
(c) the Debtors may retain any documents received and
further negotiated in the ordinary course of business; and
(d) no Debtor shall be required to grant the Agent
control over any deposit, commodity or security account.
If a Potential Default occurs and the Agent requests, then the Debtors shall
take such action as the Agent may reasonably request to perfect and protect the
security interests of the Agent in all of the Collateral, including without
limitation, the following actions: (A) the delivery to the Agent of all
Collateral the
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possession of which is necessary to perfect the security interest of the Agent
therein; (B) instructing all account debtors to make payment on accounts and any
other Collateral to a post office box or boxes or to a deposit account under the
control and in the name of the Agent and (C) any other of the actions described
in Section 4.02(i) through Section 4.02(iv) above.
Section 4.03 Third Parties in Possession of Collateral. It shall not
permit any third Person (including any warehouseman, bailee, agent, consignee or
processor) to hold any Collateral, unless it shall: (a) notify such third Person
of the security interests created hereby; (b) instruct such Person to hold all
such Collateral for the Agent's account subject to the Agent's instructions; and
(c) subject to Section 4.02, take all other actions the Agent reasonably deems
necessary to perfect and protect its and such Debtor's interests in such
Collateral pursuant to the requirements of the Uniform Commercial Code of the
applicable jurisdiction where the warehouseman, bailee, consignee, agent,
processor or other third Person is located (including the filing of a financing
statement in the proper jurisdiction naming the applicable third Person as
debtor and the Agent as secured party and notifying such third Person's secured
lenders of its interest in such Collateral before such third Person receives
possession of the Collateral in question).
Section 4.04 Corporate Changes. It shall not change its name, identity,
jurisdiction of organization, or corporate structure in any manner that might
make any financing statement filed in connection with this Agreement seriously
misleading or its United States Federal Tax I.D. Number or organizational
identification number unless it shall have given the Agent thirty (30) days
prior written notice thereof and shall have taken all action reasonably deemed
necessary or desirable by the Agent to protect the Agent's security interest in
the Collateral with the perfection and priority thereof required by the
Transaction Documents and this Agreement. It shall not change its principal
place of business, chief executive office or the place where it keeps its books
and records unless it shall have given the Agent thirty (30) days prior written
notice thereof and shall have taken all action deemed necessary or desirable by
the Agent to cause the Agent's security interest in the Collateral to be
perfected with the priority required by the Transaction Documents and this
Agreement.
Section 4.05 Inventory. It shall keep its inventory at (or in transit
to) any of its locations specified on Schedule 3.01 hereto or at such other
places within the United States of America as provided in a written notice to
the Agent.
Section 4.06 Warehouse Receipts Non - Negotiable. It agrees that if any
warehouse receipt or receipt in the nature of a warehouse receipt is issued in
respect of any portion of the Collateral, such warehouse receipt or receipt in
the nature thereof shall not be "negotiable" (as such term is used in Section
7.104 of the UCC) unless such warehouse receipt or receipt in the nature thereof
is delivered to the Agent.
ARTICLE V
RIGHTS OF THE AGENT
Section 5.01 POWER OF ATTORNEY. EACH DEBTOR HEREBY IRREVOCABLY
CONSTITUTES AND APPOINTS THE AGENT AND ANY OFFICER OR AGENT THEREOF, WITH FULL
POWER OF SUBSTITUTION, AS ITS TRUE AND LAWFUL ATTORNEY-IN-FACT WITH FULL
IRREVOCABLE POWER AND AUTHORITY IN THE NAME OF SUCH DEBTOR OR IN ITS OWN NAME,
TO TAKE, WHEN A POTENTIAL DEFAULT EXISTS, ANY AND ALL ACTIONS AND TO EXECUTE ANY
AND ALL DOCUMENTS AND INSTRUMENTS WHICH THE AGENT AT ANY TIME AND FROM TIME TO
TIME DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT
AND, WITHOUT LIMITING THE
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GENERALITY OF THE FOREGOING, EACH DEBTOR HEREBY GIVES THE AGENT THE POWER AND
RIGHT ON SUCH DEBTOR'S BEHALF AND IN SUCH DEBTOR'S OWN NAME TO DO ANY OF THE
FOLLOWING WHEN A POTENTIAL DEFAULT EXISTS, WITH NOTICE TO THE BORROWER BUT
WITHOUT THE CONSENT OF ANY DEBTOR:
(a) to demand, sue for, collect or receive, in the name
of such Debtor or in its own name, any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral and, in
connection therewith, endorse checks, notes, drafts, acceptances, money orders,
documents of title or any other instruments for the payment of money under the
Collateral or any policy of insurance;
(b) to pay or discharge taxes, liens or other
encumbrances levied or placed on or threatened against the Collateral;
(c) to notify post office authorities to change the
address for delivery of mail of such Debtor to an address designated by the
Agent and to receive, open, and dispose of mail addressed to such Debtor;
(d) (1) to direct account debtors and any other parties
liable for any payment under any of the Collateral to make payment of any and
all monies due and to become due thereunder directly to the Agent or as the
Agent shall direct (each Debtor agrees that if any proceeds of any Collateral
(including payments made in respect of accounts) shall be received by it while a
Potential Default exists, it shall promptly deliver such proceeds to the Agent
with any necessary endorsements, and until such proceeds are delivered to the
Agent, such proceeds shall be held in trust by it for the benefit of the Agent
and shall not be commingled with any other funds or property of it); (2) to
receive payment of and receipt for any and all monies, claims and other amounts
due and to become due at any time in respect of or arising out of any
Collateral; (3) to sign and endorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, proxies, stock powers, verifications and notices in connection with
accounts and other documents relating to the Collateral; (4) to commence and
prosecute any suit, action or proceeding at law or in equity in any court of
competent jurisdiction to collect the Collateral or any part thereof and to
enforce any other right in respect of any Collateral; (5) to defend any suit,
action or proceeding brought against it with respect to any Collateral; (6) to
settle, compromise or adjust any suit, action or proceeding described above and,
in connection therewith, to give such discharges or releases as the Agent may
deem appropriate; (7) to exchange any of the Collateral for other property upon
any merger, consolidation, reorganization, recapitalization or other
readjustment of the issuer thereof and, in connection therewith, deposit any of
the Collateral with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms as the Agent may determine; (8) to add
or release any guarantor, endorser, surety or other party to any of the
Collateral; (9) to renew, extend or otherwise change the terms and conditions of
any of the Collateral; (10) to grant or issue any exclusive or nonexclusive
license under or with respect to any of the intellectual property (subject to
the rights of third parties under pre - existing licenses); (11) to endorse its
name on all applications and other documentation necessary or desirable in order
for the Agent to use any intellectual property; (12) to make, settle, compromise
or adjust any claims under or pertaining to any of the Collateral (including
claims under any policy of insurance); and (13) to sell, transfer, pledge,
convey, make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Agent were the absolute owner
thereof for all purposes, and to do, at the Agent's option and the Debtors'
expense, at any time, or from time to time, all acts and things which the Agent
deems necessary to protect, preserve, maintain, or realize upon the Collateral
and the Agent's security interest therein.
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THIS POWER OF ATTORNEY IS A POWER COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE UNTIL TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.11.
The Agent shall be under no duty to exercise or withhold the exercise of any of
the rights, powers, privileges and options expressly or implicitly granted to
the Agent in this Agreement, and shall not be liable for any failure to do so or
any delay in doing so. Neither the Agent nor any Person designated by the Agent
shall be liable for any act or omission or for any error of judgment or any
mistake of fact or law, except any of the same resulting from its or their gross
negligence or willful misconduct. This power of attorney is conferred on the
Agent solely to protect, preserve, maintain and realize upon its security
interest in the Collateral. The Agent shall not be responsible for any decline
in the value of the Collateral and shall not be required to take any steps to
preserve rights against prior parties or to protect, preserve or maintain any
lien or security interest given to secure the Collateral.
Section 5.02 Assignment by the Agent. The Agent and each Creditor may
at any time assign or otherwise transfer all or any portion of their rights and
obligations under this Agreement and the other Transaction Documents (including,
without limitation, the Obligations) to any other Person, to the extent
permitted by, and upon the conditions contained in, the Transaction Documents,
and such Person shall thereupon become vested with all the benefits thereof
granted to the Agent and the Creditors, respectively, herein or otherwise.
Section 5.03 Possession; Reasonable Care. The Agent may, from time to
time, in its sole discretion, appoint one or more agents to hold physical
custody, for the account of the Agent, of any or all of the Collateral that the
Agent has a right to possess. The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which the Agent accords its own property, it being understood that the Agent
shall not have any responsibility for taking any necessary steps to preserve
rights against any parties with respect to any Collateral.
ARTICLE VI
DEFAULT
Section 6.01 Rights and Remedies. If an Event of Default exists, the
Agent shall have the following rights and remedies:
(a) In addition to all other rights and remedies granted
to the Agent in this Agreement or in any other Transaction Document or by
applicable law, the Agent shall have all of the rights and remedies of a secured
party under the UCC (whether or not the UCC applies to the affected Collateral).
Without limiting the generality of the foregoing, the Agent may (1) without
demand or notice to any Debtor, collect, receive or take possession of the
Collateral or any part thereof and for that purpose the Agent may enter upon any
premises on which the Collateral is located and remove the Collateral therefrom
or render it inoperable, and/or (2) sell, lease or otherwise dispose of the
Collateral, or any part thereof, in one or more parcels at public or private
sale or sales, at the Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Agent may deem commercially
reasonable or otherwise as may be permitted by law. The Agent shall have the
right at any public sale or sales, and, to the extent permitted by applicable
law, at any private sale or sales, to bid (which bid may be, in whole or in
part, in the form of cancellation of indebtedness) and become a purchaser of the
Collateral or any part thereof free of any right or equity of redemption on the
part of any Debtor, which right or equity of redemption is hereby expressly
waived and released by each Debtor. Upon the request of the Agent, each Debtor
shall assemble its Collateral and make it available to the Agent at any place
designated by the Agent that is reasonably convenient to such Debtor and the
Agent. Each Debtor agrees that the Agent shall not be obligated to give more
than ten (10) days prior written
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notice of the time and place of any public sale or of the time after which any
private sale may take place and that such notice shall constitute reasonable
notice of such matters. The Agent shall not be obligated to make any sale of
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of Collateral may have been given. The Agent may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. Each Debtor shall be liable for all
reasonable expenses of retaking, holding, preparing for sale or the like, and
all reasonable attorneys' fees, legal expenses and other costs and expenses
incurred by the Agent in connection with the collection of the Obligations and
the enforcement of the Agent's rights under this Agreement. Each Debtor shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral applied to the Obligations are insufficient to pay
the Obligations in full to the extent provided in the Transaction Documents. The
Agent shall apply the proceeds of Collateral against the Obligations as provided
in the Intercreditor Agreement. Each Debtor waives all rights of marshalling,
valuation and appraisal in respect of the Collateral. Any cash held by the Agent
as Collateral and all cash proceeds received by the Agent in respect of any sale
of, collection from or other realization upon all or any part of the Collateral
may, in the discretion of the Agent, be held by the Agent as collateral for, and
then or at any time thereafter applied in whole or in part by the Agent against,
the Obligations in the order permitted by the Intercreditor Agreement. The Agent
shall have no obligation to invest or otherwise pay interest on any amounts held
by it in connection with or pursuant to this Agreement or the Intercreditor
Agreement.
(b) The Agent may cause any or all of the Collateral held
by it to be transferred into the name of the Agent or the name or names of the
Agent's nominee or nominees.
(c) The Agent may exercise any and all of the rights and
remedies of any Debtor under or in respect of the Collateral, including, without
limitation, any and all rights of it to demand or otherwise require payment of
any amount under, or performance of any provision of, any of the Collateral.
(d) The Agent may collect or receive all money or
property at any time payable or receivable on account of or in exchange for any
of the Collateral, but shall be under no obligation to do so.
(e) On any sale of the Collateral, the Agent is hereby
authorized to comply with any limitation or restriction with which compliance is
necessary, in the view of the Agent's counsel, in order to avoid any violation
of applicable law or in order to obtain any required approval of the purchaser
or purchasers by any applicable governmental authority.
(f) For purposes of enabling the Agent to exercise its
rights and remedies under this Section 6.01 and enabling the Agent and its
successors and assigns to enjoy the full benefits of the Collateral in each case
as the Agent shall be entitled to exercise its rights and remedies under this
Section 6.01, each Debtor hereby grants to the Agent an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to it) to, if an Event of Default exists, use, assign, license or
sublicense any of its intellectual property, including in such license
reasonable access to all media in which any of the licensed items may be
recorded or stored and all computer programs used for the completion or printout
thereof and further including in such license such rights of quality control and
inspection as are reasonably necessary to prevent the trademarks included in
such license from claims of invalidation. This license shall also inure to the
benefit of all successors, assigns and transferees of the Agent.
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ARTICLE VII
MISCELLANEOUS
Section 7.01 No Waiver; Cumulative Remedies. No failure on the part of
the Agent to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power, or privilege. The rights and remedies
provided for in this Agreement are cumulative and not exclusive of any rights
and remedies provided by law.
Section 7.02 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of each Debtor and the Agent and respective
successors and assigns, except that no Debtor may assign any of its rights or
obligations under this Agreement without the prior written consent of the
Creditors.
Section 7.03 AMENDMENT; ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS
AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER
HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO. Except
as contemplated by the execution and delivery of a Subsidiary Joinder Agreement
(which only needs to be signed by the party thereto), the provisions of this
Agreement may be amended or waived only by an instrument in writing signed by
the parties hereto and the number of Creditors required by the Intercreditor
Agreement.
Section 7.04 Notices. All notices and other communications provided for
in this Agreement shall be given or made in accordance with the Intercreditor
Agreement.
Section 7.05 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas and applicable laws
of the United States of America.
Section 7.06 Headings. The headings, captions, and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 7.07 Survival of Representations and Warranties. All
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by the Agent shall affect the representations
and warranties or the right of the Agent or any Creditor to rely upon them.
Section 7.08 Counterparts. This Agreement may be executed in any number
of counterparts and on facsimile counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
Section 7.09 Waiver of Bond. In the event the Agent seeks to take
possession of any or all of the Collateral by judicial process, each Debtor
hereby irrevocably waives any bonds and any surety or security relating thereto
that may be required by applicable law as an incident to such possession, and
waives any demand for possession prior to the commencement of any such suit or
action.
G-9
Section 7.10 Severability. Any provision of this Agreement which is
determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.11 Termination. If all of the Obligations shall have been
paid and performed in full, all commitments of the Agent and the Creditors under
the Transaction Documents shall have expired or terminated, the Agent shall,
upon the written request of a Debtor, execute and deliver to the Debtor a proper
instrument or instruments acknowledging the release and termination of the
security interests created by this Agreement, and shall duly assign and deliver
to each Debtor (without recourse and without any representation or warranty)
such of the Collateral as may be in the possession of the Agent and has not
previously been sold or otherwise applied pursuant to this Agreement.
Section 7.12 Obligations Absolute. All rights and remedies of the Agent
hereunder, and all obligations of each Debtor hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any of the
Transaction Documents;
(b) any change in the time, manner, or place of payment
of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from any of the
Transaction Documents;
(c) any exchange, release, or non - perfection of any
Collateral, or any release or amendment or waiver of or consent to any departure
from any guarantee, for all or any of the Obligations; or
(d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, a third party pledgor.
[Signature Page to Follow]
G-10
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
DEBTORS:
TRINITY INDUSTRIES, INC.
TRANSIT MIX CONCRETE & MATERIALS COMPANY
TRINITY INDUSTRIES LEASING COMPANY
TRINITY MARINE PRODUCTS, INC.
TRINITY RAIL GROUP, LLC
TRINITY TANK CAR, INC.
TRINITY RAIL COMPONENTS & REPAIR, INC.
THRALL TRINITY FREIGHT CAR, INC.
By: ____________________________________________
____________________________________________
Authorized Officer for all Debtors
G-11
AGENT:
JPMORGAN CHASE BANK, as the Collateral Agent
under the Intercreditor Agreement
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
G-12
Index to Schedules and Exhibits
to
Security Agreement
Schedules
Schedule 3.01 - Locations
Schedule 3.02 - Trade and Other Names, Tax ID Number
Exhibits
Exhibit A - Subsidiary Joinder Agreement
G-13
SCHEDULE 3.01
TO
TRINITY INDUSTRIES, INC.
SECURITY AGREEMENT
Locations
1. TRINITY INDUSTRIES, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of
Location Landlord or Mortgagee of Premises
-------- ---------------------------------
2525 Stemmons Freeway
Dallas, Texas 75207
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 2098029
IV. Other Locations:
Alabama
Arizona
Arkansas
Florida
Georgia
Illinois
Indiana
Kentucky
Louisiana
G - Schedule 3.01 - Page 1
Maryland
Mississippi
North Carolina
Ohio
Oklahoma
Pennsylvania
Tennessee
Texas
A. Other Leased or Owned Locations:
Name and Address of Landlord or Mortgagee
Street Address City ST Zip Code County Lease/Own of Premises (if any)
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
G - Schedule 3.01 - Page 2
V. Third Parties in Possession: _______________
2. TRANSIT MIX CONCRETE & MATERIALS COMPANY
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of Landlord or
Location Mortgagee of Premises
-------- ---------------------
2525 Stemmons Freeway
Dallas, Texas 75207
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 2274660
IV. Other Locations:
Colorado
Louisiana
Texas
V. Third Parties in Possession: ____________
3. TRINITY INDUSTRIES LEASING COMPANY
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of Landlord or
Location Mortgagee of Premises
-------- ---------------------
2525 Stemmons Freeway
Dallas, Texas 75207
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 2147288
G - Schedule 3.01 - Page 3
IV. Other Locations:
Illinois
Texas
V. Third Parties in Possession: _____________________
4. TRINITY MARINE PRODUCTS, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of Landlord or
Location Mortgagee of Premises
-------- ---------------------
2525 Stemmons Freeway
Dallas, Texas 75207
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 2602621
IV. Other Locations:
Kentucky
Louisiana
Missouri
Tennessee
V. Third Parties in Possession: _______________
G - Schedule 3.01 - Page 4
5. TRINITY RAIL GROUP, LLC
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of Landlord or
Location Mortgagee of Premises
-------- ---------------------
2521 State Street
Chicago, Illinois 60411
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 3474715
IV. Other Locations: ______________
V. Third Parties in Possession: _______________
6. TRINITY TANK CAR, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of Landlord or
Location Mortgagee of Premises
-------- ---------------------
2525 Stemmons Freeway
Dallas, Texas 75207
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 3450692
IV. Other Locations: _______________
V. Third Parties in Possession: _______________
G - Schedule 3.01 - Page 5
7. TRINITY RAIL COMPONENTS & REPAIR, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of Landlord or
Location Mortgagee of Premises
-------- ---------------------
2525 Stemmons Freeway
Dallas, Texas 75207
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 3450691
IV. Other Locations: _______________
V. Third Parties in Possession: _______________
8. THRALL TRINITY FREIGHT CAR, INC.
I. Chief Place of Business and Chief Executive Office of Debtor:
Name and Address of Landlord or
Location Mortgagee of Premises
-------- ---------------------
2521 State Street
Chicago, Illinois 60411
II. Jurisdiction of Organization: Delaware
III. Organizational I.D. Number: 3450694
IV. Other Locations: _______________
V. Third Parties in Possession: _______________
G - Schedule 3.01 - Page 6
SCHEDULE 3.02
TO
TRINITY INDUSTRIES, INC.
SECURITY AGREEMENT
Trade And Other Names; Tax I.D. Number
1. TRINITY INDUSTRIES, INC.
I. Trade and Other Names: Texas New Industries, Inc.
Trinity Industries Manufacturing and
Fabrication, Inc.
II. United States Federal Income Tax I.D. Number: 75-0225040
III. Predecessor Companies: __________________
Company Name Jurisdiction of Organization Chief Executive Office Other Locations
- ------------ ---------------------------- ---------------------- ---------------
2. TRANSIT MIX CONCRETE & MATERIALS COMPANY
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
G - Schedule 3.02 - Page 1
3. TRINITY INDUSTRIES LEASING COMPANY
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
4. TRINITY MARINE PRODUCTS, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
5. TRINITY RAIL GROUP, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
G - Schedule 3.02 - Page 2
6. TRINITY TANK CAR, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
7. TRINITY RAIL COMPONENTS & REPAIR, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
8. THRALL TRINITY FREIGHT CAR, INC.
I. Trade and Other Names: __________________
II. United States Federal Income Tax I.D. Number: _______________
III. Predecessor Companies: __________________
G - Schedule 3.02 - Page 3
EXHIBIT A
TO
TRINITY INDUSTRIES, INC.
SECURITY AGREEMENT
SUBSIDIARY JOINDER AGREEMENT
This SUBSIDIARY JOINDER AGREEMENT (this "Agreement") dated as of
____________________, 200_ is executed by the undersigned (the "Debtor") for the
benefit of JPMORGAN CHASE BANK in its capacity as agent for the Creditors a
party to the hereafter identified Intercreditor Agreement (in such capacity
herein, the "Agent") and for the benefit of such Creditors in connection with
that certain Intercreditor Agreement dated as of March 10, 2004, among the
Agent, TRINITY INDUSTRIES, INC. (the "Borrower"), certain of the Borrower's
subsidiaries and the Creditors a party thereto (as modified, the "Intercreditor
Agreement," and capitalized terms not otherwise defined herein being used herein
as defined in the Intercreditor Agreement).
The Debtor is a newly formed or newly acquired Subsidiary and is
required to execute this Agreement pursuant to the Intercreditor Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Debtor hereby agrees as follows:
1. The Debtor assumes all the obligations of a "Debtor" under the
Security Agreement and agrees that it is a "Debtor" and bound as a "Debtor"
under the terms of the Security Agreement as if it had been an original
signatory thereto. In furtherance of the foregoing, the Debtor hereby assigns,
pledges and grants to Agent a security interest in all of its right, title and
interest in and to Debtor's Collateral (as defined in the Security Agreement) to
secure the Obligations under the terms of the Security Agreement.
2. Schedules 3.01, 3.02 and 3.03 of the Security Agreement are
hereby amended to add the information relating to Debtor set out on Schedules
3.01, 3.02 and 3.03 hereof. The Debtor hereby confirms that the representations
and warranties set forth in Article III of the Security Agreement applicable to
it and its Collateral are true and correct after giving effect to such amendment
to the Schedules.
3. In furtherance of its obligations under Section 4.02 of the
Security Agreement but subject to Section 4.02 of the Security Agreement, Debtor
agrees to execute and deliver such UCC financing statements naming the Debtor as
debtor, the Agent as secured party and describing its Collateral and such other
documentation (including intellectual property security agreements) as the Agent
may require to evidence, protect and perfect the security created by the
Security Agreement as modified hereby.
4. This Agreement shall be deemed to be part of, and a
modification to, the Security Agreement and shall be governed by all the terms
and provisions of the Security Agreement, which terms are incorporated herein by
reference, are ratified and confirmed and shall continue in full force and
effect as valid and binding agreements of Debtor enforceable against Debtor. The
Debtor hereby waives notice of Agent's or any Creditor's acceptance of this
Agreement.
G - EXHIBIT A-1
IN WITNESS WHEREOF, the Debtor has executed this Agreement as of the
day and year first written above.
Debtor:
_____________________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
G - EXHIBIT A-2
EXHIBIT H
[FORM OF]
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made as of ______________,
200__, by TRINITY INDUSTRIES, INC., a Delaware corporation [SUBSIDIARY]
("Pledgor"), in favor of JPMORGAN CHASE BANK, as collateral agent (in such
capacity, "Secured Party") for certain parties under the hereafter defined
Intercreditor Agreement.
RECITALS:
Pledgor, Secured Party and certain other parties have entered into that
certain Intercreditor Agreement dated as of March 10, 2004 (as the same may be
amended, restated or otherwise modified from time to time, the "Intercreditor
Agreement"). This Agreement is executed pursuant to the terms of the
Intercreditor Agreement and as required by the terms of the Transaction
Documents (as such term is defined in the Intercreditor Agreement).
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in fulfillment of the requirements of the Transaction
Documents, the parties hereto hereby agree as follows:
1. AGREEMENT.
(a) Pledge. Upon the terms hereof, for value received,
Pledgor hereby irrevocably and unconditionally pledges, assigns, hypothecates
and transfers to Secured Party, for the ratable benefit of the Creditors a party
to the Intercreditor Agreement, a first and prior pledge and security interest
in (1) all capital stock, equity and other ownership interests of
______________________________, ___________________________,
____________________________ and ________________________ (collectively, the
"Pledged Equity Issuers") owned beneficially or of record by Pledgor, and
described on Exhibit A attached hereto (together with any certificate or
instrument evidencing such interest) (the foregoing interests being referred to
herein as the "Pledged Equity"), (2) any and all proceeds or other sums arising
from or by virtue of, and all dividends and distributions (cash or otherwise)
payable and/or distributable with respect to, all or any of the Pledged Equity,
and (3) all cash, securities, dividends and other property at any time and from
time to time receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Equity and any other property substituted or
exchanged therefor (all of the foregoing described in clauses (1), (2) and (3)
being collectively referred to herein as the "Collateral"). Unless otherwise
defined in this Agreement, terms used herein shall have the meanings set forth
in the Intercreditor Agreement or the Revolver Agreement (as defined in the
Intercreditor Agreement) as the context shall require. Notwithstanding any
contrary provision in this Agreement, however, the pledge hereunder is limited
to the extent, if any, required so that such pledge is not subject to avoidance
under applicable bankruptcy or other debtor relief laws.
2. OBLIGATIONS. The following obligations (collectively, the
"Obligations") are secured by this Agreement:
(a) All Obligations (as such term is defined in the
Intercreditor Agreement).
(b) Without limiting the foregoing, all costs incurred by
Secured Party to obtain, preserve, perfect and enforce this Agreement, the other
Transaction Documents, and the pledge and
H-1
security interest granted hereby, collect the Obligations, and maintain,
preserve, collect and enforce the Collateral, including, without limitation,
taxes, assessments, attorneys' fees and legal expenses, and expenses of sale.
(c) Interest on the above amounts as agreed to by Pledgor
under the Transaction Documents, including, without limitation, interest, fees
and other charges that would accrue or become owing both prior to and subsequent
to and but for the commencement of any proceeding against or with respect to
Pledgor under any chapter of the Bankruptcy Code of 1978, 11 U.S.C. Section 101
et seq. whether or not a claim is allowed for the same in any such proceeding.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties.
(1) Representations and Warranties Concerning
Pledgor. Pledgor represents and warrants that (A) Pledgor is duly
organized under the laws of the state of Delaware; (B) the chief place
of business and chief executive office of Pledgor and the office where
Pledgor keeps all of its records is located at 2525 Stemmons Freeway,
Dallas, Texas 75270; (C) no consent of any other Person and no
authorization, approval or other action by, and no notice to or filing
with, any Governmental Authority is required (i) for the pledge by
Pledgor of the Collateral pledged by it hereunder, for the grant by
Pledgor of the security interest granted hereby or for the execution,
delivery or performance of this Agreement by Pledgor, (ii) for the
perfection or maintenance of the pledge, assignment and security
interest created hereby (including the first priority nature of such
pledge, assignment and security interest), or (iii) for the exercise by
Secured Party of the rights provided for in this Agreement or in the
Intercreditor Agreement, or the remedies in respect of the Collateral
pursuant to this Agreement or the Intercreditor Agreement; (D) Pledgor
possesses all material licenses and permits, required for its ownership
of the Collateral and the operations of its business; (E) Pledgor is
not, nor will the execution, delivery and performance and compliance
with the terms of this Agreement cause Pledgor to be in violation of
any applicable material law or in default (nor has any event occurred
which, with notice or lapse of time or both, could constitute a
default) under any debt or other contractual obligation of Pledgor; (F)
except as disclosed in the Revolver Agreement, there is no litigation,
arbitration or other proceeding pending or threatened against or
affecting Pledgor or its assets or properties; and (G) Pledgor has full
power, authority and legal right to execute, deliver and perform this
Agreement.
(2) Representations and Warranties Concerning
the Collateral. Pledgor represents and warrants that (A) the ownership
interests pledged hereunder are duly authorized, validly issued, fully
paid and non-assessable; (B) Pledgor is the sole legal and beneficial
owner of the Collateral pledged by it and the pledge, assignment and
delivery of the Collateral create a valid first and prior perfected
security interest in the Collateral, and no other security agreement
covering the Collateral, or any part thereof, has been made, and no
pledge or security interest, other than the one herein created, has
attached or been perfected in the Collateral or in any part thereof;
and (C) no dispute, right of setoff, counterclaim or defense exists
with respect to any part of the Collateral. The delivery at any time by
Pledgor to Secured Party of Collateral shall constitute a
representation and warranty by Pledgor under this Agreement that, (i)
with respect to such Collateral, and each item thereof, Pledgor is the
sole legal and beneficial owner of, with good title to, the Collateral,
and (ii) the matters warranted in this paragraph are true and correct.
H-2
(b) Covenants.
(1) Affirmative Covenants. Pledgor covenants and
agrees (A) promptly to deliver to Secured Party all instruments,
certificates, documents or agreements evidencing any of the Collateral;
(B) from time to time promptly to execute and deliver to Secured Party
all such other assignments, certificates, supplemental writings and
financing statements, and do all other acts or things, as Secured Party
or any Creditor may reasonably request in order more fully to evidence
and perfect the security interest and pledge herein created or to
effect the purposes of this Agreement; (C) promptly to furnish Secured
Party with any information or writings which Secured Party or any
Creditor may reasonably request concerning the Collateral; (D) to allow
Secured Party or any Creditor to inspect all records of Pledgor
relating to the Collateral, and to make and take away copies of such
records, at Pledgor's expense, at such reasonable times and as often as
may be reasonably requested by Secured Party or any such Creditor; (E)
promptly to notify Secured Party of any change in any fact or
circumstances warranted or represented by Pledgor in this Agreement or
in any other writings furnished by or on behalf of Pledgor to Secured
Party or any Creditor in connection with the Collateral; (F) promptly
to notify Secured Party of any claim, action or proceeding affecting
title to the Collateral, or any part thereof, or the security interest
therein, and, at the request of Secured Party, appear in and defend, at
Pledgor's expense, any such action or proceeding; and (G) promptly to
pay to Secured Party the amount of all costs and attorneys' fees
incurred by Secured Party hereunder or in connection with the
enforcement hereof.
(2) Negative Covenants. Except as otherwise
provided in the Revolver Agreement, Pledgor covenants and agrees that
Pledgor will not (A) sell, assign or transfer any of Pledgor's rights
in the Collateral; (B) create any other security interest or pledge in,
mortgage or otherwise encumber the Collateral or any part thereof, or
permit the same to be or become subject to any Lien, attachment,
execution, sequestration, other legal or equitable process, or any
encumbrance of any kind or character, except for Liens permitted by
Section 7.02 of the Revolver Agreement; (C) approve any amendment to
the certificate or articles of incorporation, the bylaws, or other
charter documents of any Pledged Equity Issuer (other than ministerial
amendments which would not adversely affect the rights of Secured Party
or the Creditors hereunder).
Notwithstanding anything to the contrary contained herein, in the event
of any conflict between the terms and provisions of this Section 3(b) and the
terms and provisions of Article VI or Article VII of the Revolver Agreement, the
terms and provisions of Article VI and/or Article VII of the Revolver Agreement
shall control.
4. RIGHTS OF SECURED PARTY.
(a) Rights to Dividends, Distributions, and Payments.
With respect to such instruments which are certificates, bonds or other
securities, Secured Party may demand of the obligor issuing the same, and may
receive and receipt for, any and all dividends and other distributions (other
than cash dividends) payable in respect thereof, whether ordinary or
extraordinary. Secured Party shall have the authority, following the occurrence
and during the continuance of an Event of Default and without notice to Pledgor,
to have such certificates, bonds or other securities registered either in
Secured Party's name or in the name of a nominee. If, while this Agreement is in
effect, Pledgor shall become entitled to receive or shall receive any
certificate (including, without limitation, any certificate representing a stock
or ownership interest dividend or a distribution in connection with any
reclassification, increase or reduction of capital, or issued in connection with
any reorganization), option
H-3
or rights, whether as an addition to, in substitution of, as a conversion of or
in exchange for any of the Collateral, or otherwise, Pledgor agrees to accept
the same as Secured Party's agent and to hold the same in trust on behalf of and
for the benefit of Secured Party, and to deliver the same forthwith to Secured
Party in the exact form received, with appropriate undated stock powers, duly
executed in blank, to be held by Secured Party, subject to the terms hereof, as
additional collateral security for the Obligations. Until and unless an Event of
Default shall have occurred and be continuing, Pledgor shall be entitled to
receive and utilize all cash dividends, principal, and interest paid in respect
of the Collateral. After the occurrence and during the continuance of an Event
of Default, Secured Party shall be entitled to all cash dividends and to any
sums paid upon or in respect of the Collateral upon the liquidation, dissolution
or reorganization of the issuer thereof which shall be paid to Secured Party to
be held by it as additional collateral security for the Obligations. In case any
distribution shall be made on or in respect of the Collateral pursuant to the
reorganization, liquidation or dissolution of the issuer thereof, the property
so distributed shall be delivered to Secured Party to be held by it as
additional collateral security for the Obligations. After the occurrence and
during the continuance of an Event of Default, all sums of money and property so
paid or distributed in respect of the Collateral (other than proceeds of any
liquidation or similar proceeding) which are received by Pledgor shall, until
paid or delivered to Secured Party, be held by Pledgor in trust as additional
Collateral for the Obligations.
(b) Preservation of Collateral. Neither Secured Party nor
any Creditor shall have any duty to fix or preserve rights against prior parties
to the Collateral, nor be liable for any delay in the collection of, or failure
to use diligence to collect on, the Obligations or any amount payable in respect
of the Collateral.
(c) Performance by Secured Party. Should any covenant,
duty or agreement of Pledgor fail to be performed in accordance with its terms
hereunder, Secured Party may, but shall never be obligated to, perform or
attempt to perform such covenant, duty or agreement on behalf of Pledgor, and
any amount expended by Secured Party in such performance or attempted
performance shall become a part of the Obligations, shall be payable upon demand
and shall bear interest at a per annum rate equal to the lesser of (1) the
Highest Lawful Rate, or (2) the rate set forth in Section 2.13(d) of the
Revolver Agreement.
(d) Voting Rights. It is expressly understood and agreed
that Pledgor shall retain all voting rights to the Collateral until the
occurrence and during the continuance of an Event of Default, at which time such
voting rights for purposes of collateral preservation shall transfer to Secured
Party, at its sole discretion and in accordance with Section 4(e) hereof;
provided, however, that no voting, corporate or management rights shall be
exercised or vote cast or consent, waiver or ratification given or action taken
by Pledgor that would impair the Collateral or be inconsistent with or violate
any provision of this Agreement or any other Transaction Documents.
(e) Power of Attorney. PLEDGOR HEREBY IRREVOCABLY GRANTS
TO SECURED PARTY PLEDGOR'S PROXY (EXERCISABLE FROM AND AFTER THE OCCURRENCE AND
DURING THE CONTINUANCE OF AN EVENT OF DEFAULT WHICH IS CONTINUING) TO VOTE ANY
COLLATERAL AND APPOINTS SECURED PARTY AS PLEDGOR'S ATTORNEY-IN-FACT TO PERFORM
ALL OBLIGATIONS OF PLEDGOR UNDER THIS AGREEMENT AND TO EXERCISE ALL OF SECURED
PARTY'S RIGHTS HEREUNDER. THE PROXY AND POWER OF ATTORNEY HEREIN GRANTED, AND
EACH STOCK POWER AND SIMILAR POWER NOW OR HEREAFTER GRANTED (INCLUDING ANY
EVIDENCED BY A SEPARATE WRITING) ARE COUPLED WITH AN INTEREST AND ARE
IRREVOCABLE PRIOR TO FINAL PAYMENT IN FULL OF THE OBLIGATIONS.
H-4
5. DEFAULT.
(a) Rights and Remedies. Upon the occurrence and during
the continuance of an Event of Default, in addition to any and all other rights
and remedies which Secured Party or any Creditor may then have hereunder, under
any other Transaction Documents, under applicable law or otherwise, Secured
Party at its option may, subject to any limitation or restriction imposed by any
applicable bankruptcy, insolvency or other law relating to the relief of
debtors, (1) obtain from any Person information regarding Pledgor, any issuer of
the Collateral, or any of their businesses, which information any such Person
may furnish without liability to Pledgor; (2) require Pledgor to give possession
or control of any of the Collateral to Secured Party; (3) unless earlier
permitted hereunder, take control of funds generated by the Collateral and any
other proceeds and exercise all other rights which an owner of such Collateral
may exercise; (4) declare the entire unpaid balance of principal and interest on
the Obligations immediately due and payable, without notice, demand or
presentment, which are hereby expressly waived; (5) reduce its claim to
judgment, foreclose or otherwise enforce its security interest in all or any
part of the Collateral by any available judicial procedure; (6) after
notification, if any, provided for in this Agreement or any other Transaction
Documents, sell or otherwise dispose of, at the office of Secured Party, all or
any part of the Collateral, and any such sale or other disposition shall be in
accordance with applicable law, and may be as a unit or in parcels, by public or
private proceedings, and by way of one or more contracts (it being agreed that
the sale of any part of the Collateral shall not exhaust Secured Party's power
of sale, but sales may be made from time to time until all of the Collateral has
been sold or until the Obligations have been paid in full), and at any such sale
it shall not be necessary to exhibit the Collateral; (7) at its discretion,
retain the Collateral in satisfaction of the Obligations whenever the
circumstances are such that Secured Party is entitled to do so under applicable
law; (8) apply by appropriate judicial proceedings for appointment of a receiver
for the Collateral, or any part hereof, and Pledgor hereby consents to any
appointment; (9) buy the Collateral at any public sale; and (10) buy the
Collateral at any private sale, subject to any restrictions imposed by
applicable law. Pledgor agrees that, if notice is required to be given by
applicable law, ten days' advance written notice shall constitute reasonable
notice. Secured Party shall apply the proceeds of any collection, sale,
disposition or other realization upon any Collateral as follows:
First, to the payment of the costs and expenses of such
collection, sale, disposition, or other realization, including
reasonable out-of-pocket costs and expenses of Secured Party
and the fees and expenses of its agents and counsel;
Next, to the payment of the Obligations, as provided in the
Intercreditor Agreement, and in such manner consistent with
applicable laws as Secured Party in its discretion shall
decide; and
Finally, to the payment to Pledgor, or its successors or
assigns, or as a court of competent jurisdiction may direct,
of any surplus then remaining.
If the proceeds of collection, sale, disposition, or other realization
are insufficient to cover the costs and expenses of such realization
and the payment in full of the Obligations, Pledgor shall remain liable
for any deficiency.
(b) Securities Laws; Transfer.
(1) Immediately upon the occurrence and during
the continuance of an Event of Default, Pledgor hereby grants to
Secured Party the right to have the Collateral, or any portion thereof,
registered and sold under the Securities Act of 1933, as amended
("Securities
H-5
Act"), or under any applicable state blue sky laws. If Secured Party
shall determine to exercise its right to sell any or all of the
Collateral pursuant to the terms hereof, and if in the reasonable
opinion of Secured Party it is necessary or advisable to have the
Collateral (or that portion thereof to be sold) registered under the
provisions of the Securities Act, Pledgor will cause the issuer of the
Collateral to execute and deliver, and cause the directors and officers
thereof to execute and deliver, all at Pledgor's and/or such issuer's
expense, all such instruments and documents, and to do or cause to be
done all such other acts and things as may be necessary or, in the
opinion of Secured Party, advisable to register such Collateral under
the provisions of the Securities Act and to cause the registration
statement relating thereto to become effective and to remain effective
for a period of one year from the date of the first public offering of
such Collateral, or that portion thereof to be sold, and to make all
amendments thereto and/or to the related prospectus which, in the
opinion of Secured Party, are necessary or advisable, all in conformity
with the requirements of applicable law. Pledgor agrees to cause the
issuer of the Collateral to comply with the provisions of the
securities or "blue sky" laws of any jurisdiction which Secured Party
shall designate and to cause the issuer of the Collateral to make
available to its security holders, as soon as practicable, an earnings
statement which will satisfy the provisions of Section 11(a) of the
Securities Act.
(2) Pledgor recognizes that Secured Party may be
unable to effect a public sale of any or all of the Collateral by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws, but may be compelled to resort to one
or more private sales thereof to a restricted group of purchasers who
will be obliged to agree, among other things, to acquire such
Collateral for their own account for investment and not with a view to
the distribution or resale thereof. Pledgor acknowledges and agrees
that any such private sale conducted in the manner described herein may
result in prices and other terms less favorable to the seller than if
such sale were a public sale and, notwithstanding such circumstances,
agrees that any private sale shall be made in a commercially reasonable
manner. Secured Party shall be under no obligation to delay a sale of
any of the Collateral for the period of time necessary to permit the
issuer of the Collateral to register such Collateral for public sale
under the Securities Act, or under applicable state securities laws,
even if the issuer of the Collateral would agree to do so.
(3) Pledgor further agrees to do or cause to be
done all such other acts and things as may be necessary to make any
sales of any portion or all of the Collateral pursuant to paragraphs
(b)(1) and (b)(2) of this Section 5 valid and binding and in compliance
with any and all applicable laws (including, without limitation, the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission applicable
thereto), regulations, orders, writs, injunctions, decrees or awards of
any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales,
all at Pledgor's expense. Pledgor further agrees that a breach of any
of the covenants contained in this Section 5 will cause irreparable
injury to Secured Party and that Secured Party may not have an adequate
remedy at law in respect of such breach. As a consequence, Pledgor
agrees that each and every covenant contained in this Section shall be
specifically enforceable against Pledgor. To the extent permitted by
applicable law, Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants.
(4) Pledgor agrees (A) that in the event Secured
Party shall, upon any Event of Default, sell the Collateral or any
portion thereof, at a private sale or sales, Secured Party shall have
the right to rely upon the advice and opinion of a member of a
nationally recognized
H-6
investment banking firm acceptable to Secured Party, as to the best
price reasonably obtainable upon such a private sale thereof, and (B)
in the absence of fraud, willful misconduct and gross negligence, that
such reliance shall be conclusive evidence that Secured Party handled
such matter in a commercially reasonable manner under the UCC.
(c) Governmental Approvals. In connection with the
exercise by Secured Party of its rights hereunder, it may be necessary to obtain
the prior consent or approval of a Governmental Authority or other Persons to
the exercise of rights with respect to the Collateral, and any representations
and warranties made by Pledgor herein shall be deemed appropriately amended to
reflect this fact. Pledgor hereby agrees to execute, deliver and file, and
hereby appoints (to the extent permitted under applicable law) Secured Party as
its attorney to execute, deliver and file on Pledgor's behalf and in Pledgor's
name, all applications, certificates, filings, instruments and other documents
(including without limitation any application for an assignment or transfer of
control or ownership) that may be necessary or appropriate, in Secured Party's
opinion, to obtain such consents or approvals. Pledgor further agrees to use its
best efforts to obtain such consents or approvals. Pledgor acknowledges that
there is no adequate remedy at law for failure by it to comply with the
provisions of this Section and that such failure would not be adequately
compensable in damages, and therefore agrees that Pledgor's efforts to obtain
any approval required by this Section may be specifically enforced.
(d) Notice. Notification of the time and place of any
public sale of the Collateral, or reasonable notification of the time after
which any private sale or other intended disposition of the Collateral is to be
made, shall be sent to Pledgor and to any other Person entitled under applicable
law to notice.
6. GENERAL.
(a) Secured Party's Duties. The Creditors have appointed
Secured Party to act as their agent as provided herein. In the event Secured
Party is replaced pursuant to Section 6.04 of the Intercreditor Agreement, the
successor Secured Party appointed in accordance with Section 6.04 of the
Intercreditor Agreement shall be the Secured Party hereunder. The powers
conferred on Secured Party hereunder are solely to protect the Creditors
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, Secured Party shall
have no duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders, or other matters
relative to any Collateral, whether or not Secured Party or any Creditor has or
is deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any reasonable care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which Secured Party accords its own property. Except
as set forth herein Secured Party shall not have any duty or liability to
protect or preserve any Collateral or to preserve rights pertaining thereto.
Nothing contained in this Agreement shall be construed as requiring or
obligating Secured Party, and Secured Party shall not be required or obligated,
(1) to present or file any claim or notice or take any action, with respect to
any Collateral or in connection therewith or (2) to notify Pledgor of any
decline in the value of any Collateral.
(b) Cumulative Rights. All rights and remedies of Secured
Party hereunder are cumulative of each other and of every other right or remedy
which Secured Party may otherwise have at law or in equity or under any other
contract or other writing for the enforcement of the security interest herein or
the collection of the Obligations, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
H-7
(c) Waiver. Should any part of the Obligations be payable
in installments, the acceptance by any Creditor at any time and from time to
time of partial payment of the aggregate amount of all installments then matured
shall not be deemed as a waiver of any Event of Default then existing. No waiver
by Secured Party or any Creditor of any Event of Default shall be deemed to be a
waiver of any other subsequent Event of Default, nor shall any such waiver by
Secured Party be deemed to be a continuing waiver. No delay or omission by
Secured Party or any Creditor in exercising any right or power hereunder, or
under any other Transaction Documents, shall impair any such right or power or
be construed as a waiver thereof or an acquiescence therein, nor shall any
single or partial exercise of any such right or power preclude other or further
exercise thereof, or the exercise of any other right or power of Secured Party
or any Creditor hereunder or under such other writings.
(d) Interest; Limitation of Law. No provision herein or
in any Transaction Document shall require the payment or permit the collection
of interest in excess of the maximum permitted by applicable law. If, in any
contingency whatsoever, Secured Party or any Creditor shall receive anything of
value from Pledgor deemed interest under applicable law which would exceed the
maximum amount of interest permissible under applicable law, the provisions of
the Transaction Documents shall govern.
(e) Parties Bound. This Agreement shall be binding on
Pledgor and its successors, assigns and legal and personal representatives,
administrators, executors, beneficiaries and heirs and shall inure to the
benefit of Secured Party and the Creditors, and their successors, assigns and
legal representatives; provided, however, that Pledgor may not assign its rights
or obligations hereunder without the prior written consent of Secured Party. The
rights, powers and interests held by Secured Party hereunder may be transferred
and assigned by Secured Party, in whole or in part, at such time and upon such
terms as permitted by the Transaction Documents.
(f) Notice. All notices, requests and other
communications to any party hereunder shall be in writing (including, telecopy
or similar teletransmission or writing) and shall be given to such party at its
address or telecopy number set forth on the signature pages hereof or such other
address or telecopy number as such party may hereafter specify by notice to the
other party. Each such notice, request or other communication shall be effective
(1) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, or (2) if given
by any other means (including, but not limited to, by air courier), when
delivered at the address specified in this Section 6(f); provided that notices
to Secured Party shall not be effective until actually and physically received.
(g) Waivers by Pledgor. Pledgor waives notices of the
creation, advance, increase, existence, extension or renewal of, and of any
indulgence with respect to, the Obligations; waives presentment, demand, notice
of dishonor and protest; waives notice of the amount of the Obligations
outstanding at any time, notice of any change in financial condition of any
Person liable for the Obligations or any part thereof, notice of any Event of
Default and all other notices respecting the Obligations; waives all rights of
redemption, appraisal, or valuation; and agrees that maturity of the Obligations
and any part thereof may be accelerated, increased, extended or renewed one or
more times by Secured Party in their discretion, without notice to Pledgor.
(h) Modifications. No provision hereof shall be modified
or limited except by a written agreement expressly referring hereto and to the
provisions so modified or limited and signed by Secured Party, nor by course of
conduct, usage of trade or mercantile law.
H-8
(i) Control. Notwithstanding anything herein to the
contrary, this Agreement and the transactions contemplated hereby do not and
will not constitute, create, or have the effect of constituting or creating,
directly or indirectly, actual or practical ownership of Pledgor or the issuer
of the Collateral by Secured Party, or control, affirmative or negative, direct
or indirect, by Secured Party, over the management or any aspect of the
day-to-day operation of Pledgor or the issuer of the Collateral, which control
remains in Pledgor, the issuer of the Collateral, and their respective
shareholders and boards of directors.
(j) Governing Law; Submission to Jurisdiction; etc.
(1) Governing Law. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND,
TO THE EXTENT CONTROLLING, LAWS OF THE UNITED STATES OF AMERICA.
(2) Submission to Jurisdiction. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF TEXAS OR OF THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF TEXAS, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, PLEDGOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, BUT NOT LIMITED TO, ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS.
(3) Waiver of Jury Trial and Consequential Damages. TO
THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EACH OF PLEDGOR AND
SECURED PARTY (A) IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
TRANSACTION DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN, (B) IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (C) CERTIFIES THAT NO
PARTY HERETO NOR ANY REPRESENTATIVE OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER;
AND (D) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY BASED UPON, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS
SECTION.
(4) Service of Process. Pledgor irrevocably
consents to service of process in the manner provided for notices in
Section 6(f). Nothing herein shall affect the right of Secured Party or
any Creditor to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against Pledgor in
any other jurisdiction.
H-9
(k) Entire Agreement. THIS AGREEMENT, TOGETHER WITH THE
OTHER TRANSACTION DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES
HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Pledgor has executed this Agreement as of the date
first above written.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
H-10
TRINITY INDUSTRIES, INC., a Delaware
corporation [SUBSIDIARY]
TRINITY INDUSTRIES, INC. By: _________________________________
2525 Stemmons Freeway Name: _______________________________
Dallas, Texas 75207 Title: ______________________________
Attn: Neil Shoop
Telephone: 214-589-8561
Telecopy: 214-589-8824
H-11
Address of Secured Party: JPMORGAN CHASE BANK, in its capacity
as collateral agent, as Secured Party
JPMORGAN CHASE BANK
2200 Ross Avenue, 3rd Floor
Dallas, Texas 75201 By: _________________________________
Attn: Michael Lister Name: _______________________________
Telephone: (214) 965-2891 Title: ______________________________
Telecopy: (214) 965-2044
H-12
EXHIBIT A
NUMBER OF SHARES /
ENTITY CERTIFICATE NO. RECORD OWNER OWNERSHIP INTERESTS
------ --------------- ------------ -------------------
__________ ______________ _____________ _____________________
__________ ______________ _____________ _____________________
__________ ______________ _____________ _____________________
__________ ______________ _____________ _____________________
H - Exhibit A-1
EXHIBIT I
[FORM OF]
INCREASED COMMITMENT AGREEMENT
This INCREASED COMMITMENT AGREEMENT (this "Agreement") is dated as of
_________________, 200_ and entered into by and among Trinity Industries, Inc.,
a Delaware corporation (the "Borrower"), each of the banks or other lending
institutions which is a signatory hereto (individually a "Supplementing Lender"
and collectively the "Supplementing Lenders"), and JPMorgan Chase Bank, as
Administrative Agent for itself and the Lenders (in such capacity, together with
its successors in such capacity, the "Administrative Agent"), and is made with
reference to that certain Amended and Restated Credit Agreement dated as of
March 10, 2004 (as the same may be amended, restated, supplemented, renewed,
extended or otherwise modified, the "Credit Agreement"), by and among the
Borrower, the Lenders and Agents parties thereto, and the Administrative Agent.
Unless otherwise defined in this Agreement, capitalized terms used herein shall
have the same meanings herein as defined in the Credit Agreement.
RECITALS
WHEREAS, pursuant to Section 2.21 of the Credit Agreement, the Borrower
and the Supplementing Lenders are entering into this Increased Commitment
Agreement to provide for the increase of the Aggregate Revolving Commitments;
and
WHEREAS, the Borrower desires to increase the Aggregate Revolving
Commitments and the Supplementing Lenders agree to provide such increase as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, and the agreements,
provisions and covenants herein contained, the parties hereto hereby agree as
follows:
Section 1. Increase in Revolving Commitments. Subject to the terms and
conditions hereof, each Supplementing Lender severally agrees (a) to increase
its Revolving Commitment by the amount set forth opposite its name on its
signature page hereto under the heading "Increase in Revolving Commitment" and
(b) that, after giving effect to this Agreement, its total Revolving Commitment
shall be the amount set forth opposite its name on its signature page hereto
under the heading "Total Revolving Commitment."
Section 2. Conditions to Effectiveness. Section 1 of this Agreement
shall become effective only upon the satisfaction of the following conditions
precedent:
(i) receipt by the Administrative Agent of an opinion of
counsel to the Borrower as to such matters that relate to this
Agreement or are otherwise relevant hereto in the judgment of the
Administrative Agent, dated the date hereof and satisfactory in form
and substance to the Administrative Agent;
(ii) receipt by the Administrative Agent of certified
copies of all corporate action taken by the Borrower to authorize the
execution, delivery and performance of this Agreement; and
I-1
(iii) receipt by the Administrative Agent of a certificate
of the secretary or an assistant secretary of the Borrower certifying
the names and true signatures of the officers of the Borrower
authorized to sign this Agreement and the other documents to be
delivered hereunder.
Section 3. Supplementing Lenders Representations and Warranties. Each
Supplementing Lender that is not currently a Lender party to the Credit
Agreement hereby (a) confirms that it has received a copy of the Credit
Agreement, together with, (i) in the event that the date of this Agreement is
prior to the date of delivery of the initial financial statements required to be
delivered pursuant to Section 6.01 of the Credit Agreement, copies of the
financial statements referred to in Section 3.04(a) of the Credit Agreement, or
(ii) in the event that the date of this Agreement is after the date of delivery
of the initial financial statements required to be delivered pursuant to Section
6.01 of the Credit Agreement, copies of the most recent financial statements
delivered pursuant to Section 6.01 of the Credit Agreement, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Agreement; (b) agrees that it has,
independently and without reliance upon any Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement; (c) agrees that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement or any other Loan Document; (d) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (e) agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement or any other Loan Document are required to be
performed by it as a Lender; (f) specifies as its domestic lending office (and
address for notices) and eurodollar lending office the offices set forth beneath
its name on the signature pages hereof; (g) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to such
Supplementing Lender's status for purposes of determining exemption from United
States withholding taxes with respect to all payments to be made to such
Supplementing Lender under the Credit Agreement and its Notes or such other
documents as are necessary to indicate that all such payments are subject to
such rates at a rate reduced by an applicable tax treaty(1); and (h) represents
that it is an Eligible New Lender.
Section 4. Borrower Representations and Warranties. In order to induce
the Supplementing Lenders to enter into this Agreement and to supplement the
Credit Agreement in the manner provided herein, the Borrower represents and
warrants to the Administrative Agent and each Supplementing Lender that (a) the
representations and warranties contained in Article III of the Credit Agreement
are and will be true, correct and complete in all material respects on and as of
the date hereof and (b) no Default or Event of Default has occurred and is
continuing or will result from the consummation of the transactions contemplated
by this Agreement.
- --------------
(1) If such Supplementing Lender is organized under the laws of a
jurisdiction outside the United States.
I-2
Section 5. Effect of Supplement. The terms and provisions set forth in
this Agreement shall modify and supersede all inconsistent terms and provisions
set forth in the Credit Agreement and, except as expressly modified and
superseded by this Agreement, the terms and provisions of the Credit Agreement
are ratified and confirmed and shall continue in full force and effect. The
Borrower, the Administrative Agent and the Supplementing Lenders hereby agree
that the Credit Agreement, as supplemented hereby, shall continue to be legal,
valid, binding and enforceable in accordance with its terms. Any and all
agreements, documents or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Credit Agreement,
as supplemented hereby, are hereby amended so that any reference therein to the
Credit Agreement shall mean a reference to the Credit Agreement as supplemented
hereby.
Section 6. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas.
Section 7. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed an original and all
of which taken together shall constitute one and the same agreement.
Section 8. ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND THE LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
I-3
BORROWER:
TRINITY INDUSTRIES, INC.,
a Delaware corporation
By: _________________________________
Name: _______________________________
Title: ______________________________
I-4
SUPPLEMENTING LENDERS:
Increase in Revolving Commitment: _____________________________________
$___________________________
Total Revolving Commitment: By: _________________________________
$___________________________ Name: _______________________________
Title: ______________________________
Domestic Lending Office:
Address: ____________________________
_____________________________________
_____________________________________
Attention:
Telecopy: ___-___-____
Telephone: ___-___-____
Eurodollar Lending Office:
Address: ____________________________
_____________________________________
_____________________________________
Attention:
Telecopy: ___-___-____
Telephone: ___-___-____
I-5
Increase in Revolving Commitment: _____________________________________
$___________________________
Total Revolving Commitment: By: _________________________________
$___________________________ Name: _______________________________
Title: ______________________________
Domestic Lending Office:
Address: ____________________________
_____________________________________
_____________________________________
Attention:
Telecopy: ___-___-____
Telephone: ___-___-____
Eurodollar Lending Office:
Address: ____________________________
_____________________________________
_____________________________________
Attention:
Telecopy: ___-___-____
Telephone: ___-___-____
I-6
Increase in Revolving Commitment: _____________________________________
$___________________________
Total Revolving Commitment: By: _________________________________
$___________________________ Name: _______________________________
Title: ______________________________
Domestic Lending Office:
Address: ____________________________
_____________________________________
_____________________________________
Attention:
Telecopy: ___-___-____
Telephone: ___-___-____
Eurodollar Lending Office:
Address: ____________________________
_____________________________________
_____________________________________
Attention:
Telecopy: ___-___-____
Telephone: ___-___-____
I-7
Increase in Revolving Commitment: _____________________________________
$___________________________
Total Revolving Commitment: By: _________________________________
$___________________________ Name: _______________________________
Title: ______________________________
Domestic Lending Office:
Address: ____________________________
_____________________________________
_____________________________________
Attention:
Telecopy: ___-___-____
Telephone: ___-___-____
Eurodollar Lending Office:
Address: ____________________________
_____________________________________
_____________________________________
Attention:
Telecopy: ___-___-____
Telephone: ___-___-____
I-8
ADMINISTRATIVE AGENT:
JPMORGAN CHASE BANK, as
Administrative Agent
By: ________________________________
Name: _______________________________
Title: ______________________________
I-9
ACKNOWLEDGEMENT
Each of the undersigned hereby: (a) consents and agrees to this
Agreement; (b) agrees that the Subsidiary Guaranty (as such term is defined in
the Credit Agreement referred to in this Agreement) previously executed by the
undersigned is in full force and effect and continues to be its legal, valid and
binding obligation enforceable in accordance with its terms; and (c) agrees that
the indebtedness, liabilities and obligations of the Borrower arising as a
result of the increase in the aggregate Revolving Commitments contemplated by
this Agreement are Lender Indebtedness constituting guaranteed indebtedness,
liabilities and obligations under such Subsidiary Guaranty.
GUARANTORS:
[LIST ALL GUARANTORS]
By: ________________________________
Name: _______________________________
Title: ______________________________
I-10
EXHIBIT J
[FORM OF]
CERTIFICATE OF EFFECTIVENESS
This Certificate of Effectiveness (this "Certificate") is executed the
10th day of March, 2004 (the "Effective Date"), by Trinity Industries, Inc., a
Delaware corporation (the "Borrower") pursuant to that certain Amended and
Restated Credit Agreement (the "Agreement") dated as of March 10, 2004, by and
among the Borrower, JPMorgan Chase Bank, as Administrative Agent
("Administrative Agent") for the Lenders under and as defined in the Credit
Agreement and the Lenders and other Agents named therein. This Certificate is
executed pursuant to Section 4.01 of the Agreement and is the "Certificate of
Effectiveness" therein referenced. Unless otherwise defined herein, all terms
used herein with their initial letter capitalized shall have the meaning given
such terms in the Agreement. This Certificate may be executed in counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Certificate by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.
1. The Borrower hereby certifies to the Administrative Agent and
each Lender that each condition precedent to the effectiveness of the Agreement
contained in Section 4.01 of the Agreement has been satisfied (except to the
extent any such conditions have been waived in writing by all Lenders).
2. Based on the certification of the Borrower contained in
Section 1 preceding, the Agreement is effective as of the Effective Date.
[Signature Pages Follow]
J-1
TRINITY INDUSTRIES, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
Accepted and Agreed to as of
this 10th day of March, 2004
JPMORGAN CHASE BANK, as
Administrative Agent for the Lenders
By: _____________________________________
Name: ___________________________________
Title: __________________________________
J-2
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
(to be attached)
Schedule 1.01 - 1
SCHEDULE 2.01
REVOLVING COMMITMENTS
Revolving
Lender Commitments
------ -----------
JPMorgan Chase Bank $50,000,000
Dresdner Bank AG, New York and Grand Cayman $30,000,000
Branches
The Royal Bank of Scotland plc $30,000,000
Bank of America, N.A. $30,000,000
BNP Paribas $25,000,000
The Bank of Nova Scotia $25,000,000
Wachovia Bank, N.A. $25,000,000
The Bank of Tokyo - Mitsubishi, Ltd. $15,000,000
Credit Suisse First Boston, Cayman Islands Branch $10,000,000
Southwest Bank of Texas, N.A. $10,000,000
TOTAL: $250,000,000
Schedule 2.01 - 1
SCHEDULE 3.06
DISCLOSED MATTERS
None, except as disclosed in Borrower's Form 10K and Form 10Q reports
to the Securities and Exchange Commission.
Schedule 3.06 - 1
SCHEDULE 3.11
SUBSIDIARIES
(Material Subsidiaries listed on last page of this Schedule 3.11)
TRINITY INDUSTRIES, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/4/86
Qualified: Delaware, Alabama, Arizona, Arkansas, Florida,
Georgia, Illinois, Indiana, Kentucky, Louisiana,
Maryland, Massachusetts, Mississippi, North Carolina,
Ohio, Oklahoma, Pennsylvania, South Carolina,
Tennessee, Texas, Alberta
U. S. SUBSIDIARIES
CONCRETE SUPPLY.COM, LLC
State of Formation: Texas
Date of Formation: 8/10/00
Qualified: Texas
DIFCO, INC.
State of Incorporation: Ohio
Date of Incorporation: 12/27/54
Qualified: Ohio
GAMBLES, INC.
State of Incorporation: Alabama
Date of Incorporation: 2/5/88
Qualified: Alabama
GREENVILLE STEEL CAR COMPANY, INC.
State of Incorporation: Pennsylvania
Date of Incorporation: 1/19/93
Qualified: Pennsylvania
INTERNATIONAL INDUSTRIAL INDEMNITY COMPANY
State of Incorporation: Vermont
Date of Incorporation: 6/19/90
Qualified: Vermont
MCCONWAY & TORLEY CORPORATION
State of Incorporation: Pennsylvania
Date of Incorporation: 6/25/40
Qualified: Pennsylvania, Kansas
Schedule 3.11 - 1
MCCONWAY & TORLEY -- ANNISTON, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/22/97
Qualified: Delaware, Alabama
MCT PROPERTIES, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/25/95
Qualified: Delaware
MOSHER STEEL COMPANY
State of Incorporation: Texas
Date of Incorporation: 1/24/83
Qualified: Texas
PLATZER SHIPYARD, INC.
State of Incorporation: Delaware
Date of Incorporation: 2/22/93
Qualified: Delaware, Texas
RAILCAR MAINTENANCE COMPANY OF NEBRASKA
State of Incorporation: Nebraska
Date of Incorporation: 12/10/76
Qualified: Nebraska
REUNION GENERAL AGENCY, INC.
State of Incorporation: Texas
Date of Incorporation: 12/12/66
Qualified: Texas
STANDARD FORGED PRODUCTS, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/8/88
Qualified: Delaware, Pennsylvania, Texas
STANDARD FORGINGS CORPORATION
State of Incorporation: Delaware
Date of Incorporation: 10/1/68
Qualified: Delaware, Indiana
SYRO, INC.
State of Incorporation: Ohio
Date of Incorporation: 8/14/46
Qualified: Ohio, Utah, Texas
Schedule 3.11 - 2
THRALL COMPANY
State of Incorporation: Delaware
Date of Incorporation: 7/30/99
Qualified: Delaware
THRALL INTERNATIONAL HOLDINGS LLC
State of Formation: Illinois
Date of Formation: 3/23/95
Qualified: Illinois, United Kingdom, Switzerland
THRALL CAR GRANTOR CORP.
State of Incorporation: Delaware
Date of Incorporation: 6/9/97
Qualified: Delaware
THRALL TRINITY FREIGHT CAR, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/25/01
Qualified: Delaware, Georgia, Illinois, Michigan, Oklahoma,
Texas
TILC EQUITY OP III-C, LP
State of Formation: Texas
Date of Formation: 11/4/03
Qualified: Texas
TILC EQUITY OP III-D, LP
State of Formation: Texas
Date of Formation: 11/4/03
Qualified: Texas
TILC EQUITY OP GP III-C, LLC
State of Formation: Texas
Date of Formation: 11/4/03
Qualified: Delaware, Texas
TILC EQUITY OP GP III-D, LLC
State of Formation: Delaware
Date of Formation: 11/4/03
Qualified: Delaware
TILC EQUITY OP LP III-C, LLC
State of Formation: Delaware
Date of Formation: 11/4/03
Qualified: Delaware, Texas
Schedule 3.11 - 3
TILC EQUITY OP LP III-D, LLC
State of Formation: Delaware
Date of Formation: 11/4/03
Qualified: Delaware
TILX GP I, LLC
State of Formation: Delaware
Date of Formation: 5/11/01
Qualified: Delaware, Texas
TILX GP II, LLC
State of Formation: Delaware
Date of Formation: 6/21/02
Qualified: Delaware
TILX GP III, LLC
State of Formation: Delaware
Date of Formation: 11/3/03
Qualified: Delaware, Texas
TILX LP I, LLC
State of Formation: Delaware
Date of Formation: 5/11/01
Qualified: Delaware
TILX LP II, LLC
State of Formation: Delaware
Date of Formation: 6/21/02
Qualified: Delaware
TILX LP III, LLC
State of Formation: Delaware
Date of Formation: 11/3/03
Qualified: Delaware, Texas
TRANSIT MIX ACQUISITION CO.
State of Incorporation: Texas
Date of Incorporation: 10/01/02
Qualified: Delaware
TRANSIT MIX CONCRETE - BAYTOWN, INC.
State of Incorporation: Texas
Date of Incorporation: 2/21/84
Qualified: Texas
Schedule 3.11 - 4
TRANSIT MIX CONCRETE & MATERIALS COMPANY
State of Incorporation: Delaware
Date of Incorporation: 9/26/91
Qualified: Delaware, Texas, Arkansas
TRANSIT MIX CONCRETE & MATERIALS COMPANY OF LOUISIANA
State of Incorporation: Delaware
Date of Incorporation: 4/20/94
Qualified: Delaware, Louisiana
TRANSIT MIX TRANSPORTATION SERVICES, LLC
State of Formation: Delaware
Date of Formation: 12/22/03
Qualified: Delaware, Arkansas, Oklahoma, Texas
TRANSPORT CAPITAL, LLC
State of Formation: Delaware
Date of Formation: 12/17/99
Qualified: Delaware
TRINITY EE, INC.
State of Incorporation: Delaware
Date of Incorporation: 6/26/97
Qualified: Delaware, Missouri, Texas
TRINITY EQUIPMENT CO., INC.
State of Incorporation: Delaware
Date of Incorporation: 5/6/91
Qualified: Delaware, Texas
TRINITY EQUIPMENT MANUFACTURING CO.
State of Incorporation: Delaware
Date of Incorporation: 7/13/99
Qualified: Delaware, New York, Texas
TRINITY FINANCIAL SERVICES, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/21/96
Qualified: Delaware
TRINITY FITTINGS GROUP, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/10/95
Qualified: Delaware, Arkansas, Indiana, Texas, Oklahoma,
Mississippi, Kentucky
Schedule 3.11 - 5
TRINITY HH, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/22/97
Qualified: Delaware
TRINITY HIGHWAY SAFETY PRODUCTS, INC.
State of Incorporation: Delaware
Date of Incorporation: 7/31/99
Qualified: Delaware
TRINITY INDUSTRIES BUFFALO, INC.
State of Incorporation: Delaware
Date of Incorporation: 6/26/97
Qualified: Delaware, Connecticut, New York, Tennessee, Texas,
Alabama
TRINITY INDUSTRIES FOUNDATION
State of Incorporation: Texas
Date of Incorporation: 6/16/99
Qualified: Texas
TRINITY INDUSTRIES INTERNATIONAL, INC.
State of Incorporation: Delaware
Date of Incorporation: 4/20/94
Qualified: Delaware, Texas
TRINITY INDUSTRIES LEASING COMPANY
State of Incorporation: Delaware
Date of Incorporation: 12/23/87
Qualified: Delaware, Illinois, Texas, Alberta
TRINITY INDUSTRIES RAILCAR CORPORATION
State of Incorporation: Delaware
Date of Incorporation: 3/14/96
Qualified: Delaware
TRINITY INDUSTRIES REAL PROPERTIES, INC.
State of Incorporation: Delaware
Date of Incorporation: 1/19/93
Qualified: Delaware, Alabama, Texas, Georgia, Mississippi,
Pennsylvania, Oklahoma
TRINITY INDUSTRIES TRANSPORTATION, INC.
State of Incorporation: Texas
Date of Incorporation: 12/31/74
Qualified: Arkansas, Alabama, Illinois, Kentucky, Louisiana,
North Carolina, Pennsylvania, Texas, Ohio, Utah,
Alberta
Schedule 3.11 - 6
TRINITY INDUSTRIES TRANSPORTATION SERVICES, LLC
State of Formation: Delaware
Date of Formation: 12/22/03
Qualified: Delaware
TRINITY JJ, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/26/98
Qualified: Delaware
TRINITY KK, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/26/98
Qualified: Delaware
TRINITY MARINE LEASING, INC.
State of Incorporation: Delaware
Date of Incorporation: 5/17/02
Qualified: Delaware
TRINITY MARINE PRODUCTS, INC.
State of Incorporation: Delaware
Date of Incorporation: 3/14/96
Qualified: Delaware, Louisiana, Missouri, Tennessee, Kentucky
TRINITY MATERIALS, INC.
State of Incorporation: Delaware
Date of Incorporation: 4/5/93
Qualified: Delaware, Texas, Oklahoma
TRINITY MINING SERVICES, INC.
State of Incorporation: Delaware
Date of Incorporation: 4/25/00
Qualified: Delaware, Alabama
TRINITY Q, INC.
State of Incorporation: Delaware
Date of Incorporation: 11/1/94
Qualified: Delaware, Ohio
TRINITY RAILCAR REPAIR, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/20/93
Qualified: Delaware, Arizona, Georgia, Illinois, Iowa, Kansas,
Louisiana, Missouri, Montana, Nebraska, New Mexico,
New York, Ohio, Pennsylvania, Tennessee, Texas, Utah
Schedule 3.11 - 7
TRINITY RAIL COMPONENTS & REPAIR, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/25/01
Qualified: Delaware, Georgia, Idaho, Illinois, Kansas, Montana,
Nebraska, New Mexico, North Carolina, Pennsylvania,
Tennessee, Texas
TRINITY RAIL GROUP, LLC
State of Formation: Delaware
Date of Formation: 12/28/01
Qualified: Delaware, Illinois, Georgia
TRINITY RAIL, INC.
State of Incorporation: Delaware
Date of Incorporation: 10/31/85
Qualified: Delaware, California, Texas
TRINITY RAIL LEASING I, L.P.
State of Formation: Texas
Date of Formation: 5/14/01
Qualified: Texas
TRINITY RAIL LEASING II, LP
State of Formation: Delaware
Date of Formation: 6/24/02
Qualified: Delaware
TRINITY RAIL LEASING III, LP
State of Formation: Texas
Date of Formation: 10/31/03
Qualified: Texas
TRINITY RAIL LEASING TRUST II
State of Formation: New York
Date of Formation: 6/27/02
Qualified: New York
TRINITY RAIL MANAGEMENT, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/2/90
Qualified: Delaware, Texas, California, Washington
TRINITY RAIL MARKET SERVICES, INC.
State of Incorporation: Delaware
Date of Incorporation: 9/16/02
Qualified: Delaware
Schedule 3.11 - 8
TRINITY STRUCTURAL TOWERS, INC.
State of Incorporation: Delaware
Date of Incorporation: 3/17/00
Qualified: Delaware, Texas
TRINITY TANK CAR, INC.
State of Incorporation: Delaware
Date of Incorporation: 12/25/01
Qualified: Delaware, Illinois, Texas
TRN BUSINESS TRUST
State of Formation: Delaware
Date of Formation: 3/14/96
Qualified: Delaware
TRN, INC.
State of Incorporation: Delaware
Date of Incorporation: 8/10/95
Qualified: Delaware, Texas
TRN INVESTMENT COMPANY
State of Incorporation: Delaware
Date of Incorporation: 10/25/99
Qualified: Delaware
WALDORF PROPERTIES, INC.
State of Incorporation: Delaware
Date of Incorporation: 3/14/96
Qualified: Delaware, Maryland, Alabama
Schedule 3.11 - 9
FOREIGN SUBSIDIARIES
ADMINISTRADORA ESPECIALIZADA, S. de R.L. de C.V.
Jurisdiction: Mexico
Date of Formation: 1/28/2002
APROMAT, S.A.
Jurisdiction: Romania
Date of Incorporation: 3/2/1990
ASTRA VAGOANE ARAD, S.A.
Jurisdiction: Romania
Date of Incorporation: 1/2/1990
ICPV, S.A.
Jurisdiction: Romania
Date of Incorporation: 3/2/1991
THRALL EUROPA
Jurisdiction: England & Wales
Date of Incorporation: 6/16/1997
THRALL VAGONKA STUDENKA, a.s.
Jurisdiction: Czech Republic
Date of Incorporation: 1/01/1994
RAIL PROJECT, s.r.o.
Jurisdiction: Slovak Republic
Date of Incorporation: 12/20/1993
TRINITY RAIL GmbH
Jurisdiction: Switzerland
Date of Incorporation: 7/13/2000
TRINITY INDUSTRIES INTERNATIONAL HOLDINGS AG
Jurisdiction: Switzerland
Date of Incorporation: 10/1983
TRINITY ARGENTINA S.R.L.
Jurisdiction: Argentina
Date of Incorporation: 11/16/1999
TRINITY RAIL DO BRASIL, Ltda.
Jurisdiction: Brazil
Date of Incorporation: 10/29/1998
Schedule 3.11 - 10
WAGONMARKET spol. sr.o.
Jurisdiction: Slovak Republic
Date of Incorporation: 5/4/1992
GRUPO TATSA, S de R.L. de C.V.
Jurisdiction: Mexico
Date of Incorporation: 12/23/1981
TRINITY INDUSTRIES de MEXICO, S. de R.L. de C.V.
Jurisdiction: Mexico
Date of Incorporation: 12/31/1963
TRINITY INDUSTRIES GmbH
Jurisdiction: Switzerland
Date of Formation: 7/10/2000
OFE, S. de R.L. de C.V.
Jurisdiction: Mexico
Date of Incorporation: 5/13/1955
ASISTENCIA PROFESSIONAL CORPORATIVA, S. de R.L. de C.V.
Jurisdiction: Mexico
Date of Incorporation: 3/25/1999
SERVICIOS CORPORATIVOS TATSA, S. de R.L. de C.V.
Jurisdiction: Mexico
Date of Incorporation: 3/03/1998
Schedule 3.11 - 11
MATERIAL SUBSIDIARIES
THRALL TRINITY FREIGHT CAR, INC.
TRANSIT MIX CONCRETE & MATERIALS COMPANY
TRINITY INDUSTRIES LEASING COMPANY
TRINITY MARINE PRODUCTS, INC.
TRINITY RAIL COMPONENTS & REPAIR, INC.
TRINITY RAIL GROUP, LLC
TRINITY TANK CAR, INC.
Schedule 3.11 - 12
SCHEDULE 3.13
EMPLOYEE MATTERS
COLLECTIVE BARGAINING AGREEMENTS
LOCATION UNION
Centerville, UT United Steelworkers (USW)
Girard, OH United Steelworkers (USW)
Kutztown, PA Glass, Molders, etc.
(McConway & Torley)
Russelville, AR Boilermakers
Schedule 3.13 - 1
SCHEDULE 7.01
EXISTING INDEBTEDNESS
At 12/31/03, Existing Indebtedness is as disclosed in Note 9 to the Form 10-K
for the Fiscal Year ended December 31, 2003 as filed with the Securities and
Exchange Commission.
Schedule 7.01 - 1
SCHEDULE 7.02
EXISTING LIENS
Industrial Revenue Bond Financing -- Montgomery, Alabama
TRLI Equipment Lease Transaction
Pass Through Equipment Trust Financing (ETC 12)
TRL II Warehouse Financing
TRL III Equipment Lease Transaction
Schedule 7.02 - 1
SCHEDULE 7.03
PERMITTED ASSET SALES
(to be attached)
Schedule 7.03 - 1
SCHEDULE 7.08
EXISTING RESTRICTIONS
TRLI Equipment Lease Transaction
Pass Through Equipment Trust Financing (ETC 12)
TRL II Warehouse Financing
TRL III Equipment Lease Transaction
Schedule 7.08 - 1