EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated March 10, 2004 (the
"Agreement") is entered into by and among Trinity Industries, Inc., a Delaware
corporation (the "Company"), the guarantors listed in Schedule 1 hereto (the
"Guarantors"), and ▇.▇. ▇▇▇▇▇▇ Securities Inc., Credit Suisse First Boston LLC,
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ Securities LLC, The Royal Bank of Scotland plc,
BNP Paribas Securities Corp., Scotia Capital (USA) Inc., Wachovia Securities LLC
and Tokyo-Mitsubishi International plc (collectively the "Initial Purchasers").
The Company, the Guarantors and the Initial Purchasers are
parties to the Purchase Agreement dated March 5, 2004 (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $300,000,000 aggregate principal amount of the Company's 6 1/2%
Senior Notes due 2014 (the "Securities"), which will be guaranteed on an
unsecured senior basis by each of the Guarantors. As an inducement to the
Initial Purchasers to enter into the Purchase Agreement, the Company and the
Guarantors have agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Business Day" shall mean any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section
2(a)(ii) hereof.
"Exchange Offer" shall mean the exchange offer by the Company
and the Guarantors of Exchange Securities for Registrable Securities pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all exhibits
thereto and any document incorporated by reference therein.
"Exchange Securities" shall mean senior notes issued by the
Company and guaranteed by the Guarantors under the Indenture containing terms
substantially the same as the Securities (except that the Exchange Securities
will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to
Holders of Securities in exchange for Securities pursuant to the Exchange Offer.
"Guarantors" shall have the meaning set forth in the preamble
and shall also include any Guarantor's successors.
"Holders" shall mean the Initial Purchasers, for so long as
they own any Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become owners of Registrable Securities
under the Indenture; provided, however, that for purposes of Sections 4 and 5 of
this Agreement, the term "Holders" shall include Participating Broker-Dealers.
"Indenture" shall mean the Indenture relating to the
Securities dated as of March 10, 2004 among the Company, the Guarantors and
▇▇▇▇▇ Fargo Bank, National Association, as trustee, and as the same may be
amended from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided,
however, that whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities owned directly or indirectly by the Company or any of its affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount.
"Participating Broker-Dealers" shall have the meaning set
forth in Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
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"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to such prospectus, and in each case
including any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Securities; provided,
however, that the Securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Securities has been declared
effective under the Securities Act and such Securities have been exchanged or
disposed of pursuant to such Registration Statement, (ii) such Securities are
sold pursuant to Rule 144 under circumstances in which any legend borne by such
Securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company in accordance with the
Indenture, (iii) when such Securities are eligible to be sold pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under the
Securities Act or (iv) when such Securities cease to be outstanding.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company and the Guarantors with
this Agreement, including, without limitation, (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any Underwriters or Holders in connection with blue sky
qualification of any Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus and any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements or other similar agreements and any other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency fees,
(v) all fees and disbursements relating to the qualification of the Indenture
under applicable securities laws, (vi) the fees and disbursements of the Trustee
and its counsel, (vii) the fees and disbursements of counsel for the Company and
the Guarantors and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders (which counsel shall be selected by
the Majority Holders and which counsel may also be counsel for the Initial
Purchasers) and (viii) the fees and disbursements of the independent public
accountants of the Company and the Guarantors, including the expenses of any
special audits or "comfort" letters required by or incident to the performance
of and compliance with this Agreement, but excluding fees and expenses of
counsel to the Underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
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"Registration Statement" shall mean any registration statement
of the Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Shelf Effectiveness Period" shall have the meaning set forth
in Section 2(b) hereof.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Guarantors that covers all the
Registrable Securities (but no other securities unless approved by the Holders
whose Registrable Securities are to be covered by such Shelf Registration
Statement) on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and any document incorporated by reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended from time to time.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"Underwriter" shall have the meaning set forth in Section 3
hereof.
"Underwritten Offering" shall mean an offering in which
Registrable Securities are sold to an Underwriter for reoffering to the public.
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2. Registration Under the Securities Act. (a) To the
extent not prohibited by any applicable law or applicable interpretations of the
Staff of the SEC, the Company and the Guarantors shall use their reasonable best
efforts to (i) cause to be filed an Exchange Offer Registration Statement
covering an offer to the Holders to exchange all the Registrable Securities for
Exchange Securities and (ii) have such Registration Statement remain effective
until 180 days after the closing of the Exchange Offer. The Company and the
Guarantors shall commence the Exchange Offer promptly after the Exchange Offer
Registration Statement is declared effective by the SEC and use their reasonable
best efforts to complete the Exchange Offer not later than 60 days after such
effective date.
The Company and the Guarantors shall commence the Exchange
Offer by mailing the related Prospectus, appropriate letters of transmittal and
other accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law,
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered
and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period
of at least 20 Business Days from the date such notice is
mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest but will not
retain any rights under this Agreement;
(iv) that any Holder electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to
surrender such Registrable Security, together with the
appropriate letters of transmittal, to the institution and at
the address (located in the Borough of Manhattan, The City of
New York) and in the manner specified in the notice, prior to
the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not
later than the close of business on the last Exchange Date, by
sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the
notice, a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange and a statement
that such Holder is withdrawing its election to have such
Securities exchanged.
As a condition to participating in the Exchange Offer, a
Holder will be required to represent to the Company and the Guarantors that (i)
any Exchange Securities to be received by it will be acquired in the ordinary
course of its business, (ii) at the time of the commencement of the Exchange
Offer it has no arrangement or understanding with any Person to participate in
the distribution (within the meaning of the Securities Act) of the Exchange
Securities in violation of the provisions of the Securities Act, (iii) it is not
an
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"affiliate" (within the meaning of Rule 405 under Securities Act) of the Company
or any Guarantor and (iv) if such Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Registrable Securities
that were acquired as a result of market-making or other trading activities,
then such Holder will deliver a Prospectus in connection with any resale of such
Exchange Securities.
As soon as practicable after the last Exchange Date, the
Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof
validly tendered and not properly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and issue, and cause the
Trustee to promptly authenticate and deliver to each Holder,
Exchange Securities equal in principal amount to the principal
amount of the Registrable Securities surrendered by such
Holder.
The Company and the Guarantors shall use their reasonable best
efforts to complete the Exchange Offer as provided above and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff of the SEC.
(b) In the event that (i) the Company and the Guarantors
determine that the Exchange Offer Registration provided for in Section 2(a)
above is not available or may not be completed as soon as practicable after the
last Exchange Date because it would violate any applicable law or applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason completed by October 6, 2004 or (iii) upon completion of the
Exchange Offer any Initial Purchaser shall so request in connection with any
offering or sale of Registrable Securities not eligible to be exchanged for
Exchange Securities in the Exchange Offer held by it following the consummation
of the Exchange Offer, the Company and the Guarantors shall use their reasonable
best efforts to cause to be filed as soon as practicable after such
determination, date or request, as the case may be, a Shelf Registration
Statement providing for the sale of all the Registrable Securities by the
Holders thereof and to have such Shelf Registration Statement declared effective
by the SEC.
In the event that the Company and the Guarantors are required
to file a Shelf Registration Statement pursuant to clause (iii) of the preceding
sentence, the Company and the Guarantors shall use their reasonable best efforts
to file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
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respect to offers and sales of Registrable Securities held by the Initial
Purchasers after completion of the Exchange Offer.
The Company and the Guarantors agree to use their reasonable
best efforts to keep the Shelf Registration Statement continuously effective
until the expiration of the period referred to in Rule 144(k) under the
Securities Act with respect to the Registrable Securities or such shorter period
that will terminate when all the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (the "Shelf Effectiveness Period"). The Company and the Guarantors
further agree to supplement or amend the Shelf Registration Statement and the
related Prospectus if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder of Registrable Securities with respect to information relating to such
Holder, and to use their reasonable best efforts to cause any such amendment to
become effective and such Shelf Registration Statement and Prospectus to become
usable as soon as thereafter practicable. The Company and the Guarantors agree
to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) and Section 2(b) hereof. Each Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC.
In the event that either the Exchange Offer is not completed
or the Shelf Registration Statement, if required hereby, is not declared
effective on or prior to October 6, 2004 (the "Target Registration Date"), the
interest rate on the Registrable Securities will be increased by (i) 0.25% per
annum for the first 90-day period immediately following the Target Registration
Date and (ii) an additional 0.25% per annum with respect to each subsequent
90-day period, in each case until the Exchange Offer is completed or the Shelf
Registration Statement, if required hereby, is declared effective by the SEC or
the Securities become freely tradable under the Securities Act, up to a maximum
of 1.00% per annum of additional interest.
If the Shelf Registration Statement has been declared
effective and thereafter either ceases to be effective or the Prospectus
contained therein ceases to be usable at any time during the Shelf Effectiveness
Period, and such failure to remain effective or usable exists for more than 30
days (whether or not consecutive) in any 12-month period, then the interest rate
on the Registrable Securities will be increased by 1.00% per annum commencing on
the 31st day in such 12-month period and ending on such date that the Shelf
7
Registration Statement has again been declared effective or the Prospectus again
becomes usable.
(e) Without limiting the remedies available to the
Initial Purchasers and the Holders, the Company and the Guarantors acknowledge
that any failure by the Company or the Guarantors to comply with their
obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantors' obligations under Section
2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with their
obligations pursuant to Section 2(a) and Section 2(b) hereof, the Company and
the Guarantors shall as expeditiously as possible
(a) prepare and file with the SEC a Registration
Statement on the appropriate form under the Securities Act, which form
(x) shall be selected by the Company and the Guarantors, (y) shall, in
the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (z) shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the
SEC to be filed therewith; and use their reasonable best efforts to
cause such Registration Statement to become effective and remain
effective for the applicable period in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period in accordance with Section 2 hereof and cause each
Prospectus to be supplemented by any required prospectus supplement
and, as so supplemented, to be filed pursuant to Rule 424 under the
Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that
is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for such Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto, in order to
facilitate the sale or other disposition of the Registrable Securities
thereunder; and the Company and the Guarantors consent to the use of
such Prospectus and any amendment or supplement thereto in accordance
with applicable law by each of the selling Holders of Registrable
Securities and any such Underwriters in connection with the offering
and sale of the Registrable Securities covered by and in the manner
8
described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) if necessary, use their reasonable best efforts to
register or qualify the Registrable Securities under all applicable
state securities or blue sky laws of such jurisdictions as any Holder
of Registrable Securities covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC; cooperate with the Holders
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each
Holder to complete the disposition in each such jurisdiction of the
Registrable Securities owned by such Holder; provided, however, that
neither the Company nor any Guarantor shall be required to (i) qualify
as a foreign corporation or other entity or as a dealer in securities
in any such jurisdiction where it would not otherwise be required to so
qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Securities, counsel for such Holders and counsel
for the Initial Purchasers promptly and, if requested by any such
Holder or counsel, confirm such advice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (ii) of any
request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company or any
Guarantor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to an offering
of such Registrable Securities cease to be true and correct in all
material respects or if the Company or any Guarantor receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
of any proceeding for such purpose, (v) of the happening of any event
during the period a Shelf Registration Statement is effective that
makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or that requires the making
of any changes in such Registration Statement or Prospectus in order to
make the statements therein not misleading and (vi) of any
determination by the Company or any Guarantor that a post-effective
amendment to a Registration Statement would be appropriate;
(f) use their reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement at the earliest possible
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moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without any documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and
enable such Registrable Securities to be issued in such denominations
and registered in such names (consistent with the provisions of the
Indenture) as the selling Holders may reasonably request at least one
Business Day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the
occurrence of any event contemplated by Section 3(e)(v) hereof, use
their reasonable best efforts to prepare and file with the SEC a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities, such Prospectus
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and the Company and the Guarantors shall notify the Holders of
Registrable Securities to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and such Holders
hereby agree to suspend use of the Prospectus until the Company and the
Guarantors have amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or of any document
that is to be incorporated by reference into a Registration Statement
or a Prospectus after initial filing of a Registration Statement,
provide copies of such document to the Initial Purchasers and their
counsel (and, in the case of a Shelf Registration Statement, to the
Holders of Registrable Securities and their counsel) and make such of
the representatives of the Company and the Guarantors as shall be
reasonably requested by the Initial Purchasers or their counsel (and,
in the case of a Shelf Registration Statement, the Holders of
Registrable Securities or their counsel) available for discussion of
such document; and the Company and the Guarantors shall not, at any
time after initial filing of a Registration Statement, file any
Prospectus, any amendment of or supplement to a Registration Statement
or a Prospectus, or any document that is to be incorporated by
reference into a Registration Statement or a Prospectus, of which the
Initial Purchasers and their counsel (and, in the case of a Shelf
Registration
10
Statement, the Holders of Registrable Securities and their counsel)
shall not have previously been advised and furnished a copy or to which
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall object;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust
Indenture Act in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be; cooperate
with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and execute, and
use their reasonable best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all other forms
and documents required to be filed with the SEC to enable the Indenture
to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available
for inspection by a representative of the Holders of the Registrable
Securities (an "Inspector"), any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and
attorneys and accountants designated by the Holders (but in such event,
only one law firm and one accounting firm to represent the Holders at
the Company's and the Guarantor's expense), at reasonable times and in
a reasonable manner, all pertinent financial and other records,
documents and properties of the Company and the Guarantors, and cause
the respective officers, directors and employees of the Company and the
Guarantors to supply all information reasonably requested by any such
Inspector, Underwriter, attorney or accountant in connection with a
Shelf Registration Statement; provided, however, that if any such
information is identified by the Company or any Guarantor as being
confidential or proprietary, each Person receiving such information
shall take such actions as are reasonably necessary to protect the
confidentiality of such information to the extent such action is
otherwise not inconsistent with, an impairment of or in derogation of
the rights and interests of any Inspector, Holder or Underwriter);
(n) in the case of a Shelf Registration, use their
reasonable best efforts to cause all Registrable Securities to be
listed on any securities exchange or any automated quotation system on
which similar securities issued or guaranteed by the Company or any
Guarantor are then listed if requested by the Majority Holders, to the
extent such Registrable Securities satisfy applicable listing
requirements;
(o) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, promptly incorporate in
a Prospectus supplement or post-effective amendment such information
with respect to such Holder as such Holder reasonably requests to be
included therein and make all required filings of such Prospectus
supplement or such post-effective amendment as
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soon as the Company has received notification of the matters to be
incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection
therewith (including those requested by the Holders of a majority in
principal amount of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities
including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and
warranties to the Holders and any Underwriters of such Registrable
Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same
if and when requested, (ii) obtain opinions of counsel to the Company
and the Guarantors (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders and such
Underwriters and their respective counsel) addressed to each selling
Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings,
(iii) obtain "comfort" letters from the independent certified public
accountants of the Company and the Guarantors (and, if necessary, any
other certified public accountant of any subsidiary of the Company or
any Guarantor, or of any business acquired by the Company or any
Guarantor for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to
each selling Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with
underwritten offerings and (iv) deliver such documents and certificates
as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold or the
Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations
and warranties of the Company and the Guarantors made pursuant to
clause (i) above and to evidence compliance with any customary
conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may
require, as a condition to including such Holder's Registrable Securities in
such Shelf Registration Statement, each Holder of Registrable Securities to
furnish to the Company such information regarding such Holder and the proposed
disposition by such Holder of such Registrable Securities as the Company and the
Guarantors may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
and the Guarantors of the happening of any event of the kind described in
Section 3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a
12
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof and, if
so directed by the Company and the Guarantors, such Holder will deliver to the
Company and the Guarantors all copies in its possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities that is current at the time of receipt of such notice.
If the Company and the Guarantors shall give any such notice
to suspend the disposition of Registrable Securities pursuant to a Registration
Statement, the Company and the Guarantors shall extend the period during which
the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company and the Guarantors may give any such notice only
twice during any 365-day period and any such suspensions shall not exceed 30
days for each suspension and there shall not be more than two suspensions in
effect during any 365-day period.
The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers (the "Underwriters") that
will administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer that
receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer") may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the
Staff's position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement to
the above effect and the means by which Participating Broker-Dealers may resell
the Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other
provisions of this Agreement, the Company and the Guarantors agree to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a period of
up to 180 days after the last Exchange Date (as
13
such period may be extended pursuant to the penultimate paragraph of Section 3
of this Agreement), if requested by the Initial Purchasers or by one or more
Participating Broker-Dealers, in order to expedite or facilitate the disposition
of any Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above. The Company and the
Guarantors further agree that Participating Broker-Dealers shall be authorized
to deliver such Prospectus during such period in connection with the resales
contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the
Company, any Guarantor or any Holder with respect to any request that they may
make pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company
and each Guarantor, jointly and severally, agree to indemnify and hold harmless
each Initial Purchaser and each Holder, their respective affiliates, directors
and officers and each Person, if any, who controls any Initial Purchaser or any
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any Prospectus or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to any Initial Purchaser or any Holder furnished to the Company in writing
through ▇.▇. ▇▇▇▇▇▇ Securities Inc. or any selling Holder expressly for use
therein. In connection with any Underwritten Offering permitted by Section 3,
the Company and the Guarantors, jointly and severally, will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their respective affiliates and
each Person who controls such Persons (within the meaning of the Securities Act
and the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantors, the Initial Purchasers
and the other selling Holders, their respective affiliates, the directors of the
Company and the Guarantors, each officer of the Company and the Guarantors who
signed the Registration Statement and each Person, if any, who controls the
Company, the Guarantors, any Initial Purchaser and any other selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon
14
and in conformity with any information relating to such Holder furnished to the
Company in writing by such Holder expressly for use in any Registration
Statement and any Prospectus.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided, however, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 5 except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, however, that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have to an Indemnified Person otherwise than under this Section 5. If any
such proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 5 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm (x) for any Initial Purchaser, its affiliates, directors and
officers and any control Persons of such Initial Purchaser shall be designated
in writing by ▇.▇. ▇▇▇▇▇▇ Securities Inc., (y) for any Holder, its affiliates,
directors and officers and any control Persons of such Holder shall be
designated in writing by the Majority Holders and (z) in all other cases shall
be designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
15
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors from the offering of the
Securities and the Exchange Securities, on the one hand, and by the Holders from
receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault
of the Company and the Guarantors on the one hand and the Holders on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors on the one
hand and the Holders on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Guarantors and the Holders agree
that it would not be just and equitable if contribution pursuant to this Section
5 were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 5, in no event
shall a Holder be required to contribute any amount in excess of the amount by
which the total price at which the Securities or Exchange Securities sold by
such Holder exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged
16
untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained
in this Section 5 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Initial Purchasers or any Holder, their respective affiliates or
any Person controlling any Initial Purchaser or any Holder, or by or on behalf
of the Company or the Guarantors, their respective affiliates or the officers or
directors of or any Person controlling the Company or the Guarantors, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company and the
Guarantors represent, warrant and agree that (i) the rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or any Guarantor under any other agreement and (ii)
neither the Company nor any Guarantor has entered into, or on or after the date
of this Agreement will enter into, any agreement that is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company and the Guarantors have
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or consent; provided, however, that
no amendment, modification, supplement, waiver or consent to any departure from
the provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder. Any
amendments, modifications, supplements, waivers or consents pursuant to this
Section 6(b) shall be by a writing executed by each of the parties hereto.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect to the
Initial Purchasers, the address set forth in the Purchase Agreement; (ii) if to
the Company
17
and the Guarantors, initially at the Company's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c); and (iii) to such other
persons at their respective addresses as provided in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c). All such notices and communications shall
be deemed to have been duly given at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered to
an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all the terms of this Agreement,
and by taking and holding such Registrable Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any breach
by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a
third party beneficiary to the agreements made hereunder between the Company and
the Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
and shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or the
rights of other Holders hereunder.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only, are not a part of this Agreement and shall not
limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
regard to the conflicts of law provisions thereof to the extent the application
of the laws of another jurisdiction would be required thereby.
18
(i) Miscellaneous. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and
supersedes all oral statements and prior writings with respect thereto. If any
term, provision, covenant or restriction contained in this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable or
against public policy, the remainder of the terms, provisions, covenants and
restrictions contained herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated. The Company, the Guarantors and the
Initial Purchasers shall endeavor in good faith negotiations to replace the
invalid, void or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, void or
unenforceable provisions.
19
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
TRINITY INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
Guarantors:
TRANSIT MIX CONCRETE & MATERIALS COMPANY
TRINITY INDUSTRIES LEASING COMPANY
TRINITY MARINE PRODUCTS, INC.
TRINITY RAIL GROUP, LLC
THRALL TRINITY FREIGHT CAR, INC.
TRINITY TANK CAR, INC.
TRINITY RAIL COMPONENTS & REPAIR, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President of
each of the Guarantors listed
above
S-1
Confirmed and accepted as of the date
first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Authorized Signatory
S-2
Schedule 1
TRANSIT MIX CONCRETE & MATERIALS COMPANY
TRINITY INDUSTRIES LEASING COMPANY
TRINITY MARINE PRODUCTS, INC.
TRINITY RAIL GROUP, LLC
THRALL TRINITY FREIGHT CAR, INC.
TRINITY TANK CAR, INC.
TRINITY RAIL COMPONENTS & REPAIR, INC.
Sch. 1-1