Annexes & Exhibits

 

Tab 1 :	Annex 1	–	Current Noteholders and Principal Amounts
Tab A :	Exhibit A	–	Amendments to Existing Note Purchase Agreement
Tab B :	Exhibit 5.4	–	Form of Fifth Amendment to Credit Agreement

 

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TRIUMPH GROUP, INC.

 

$80,000,000 SERIES A SENIOR NOTES DUE DECEMBER 2, 2012

$70,000,000 SERIES B SENIOR NOTES DUE DECEMBER 2, 2012

 

AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT

 

As of November 3, 2004

 

To each of the Current Noteholders

Named in Annex 1 hereto:

 

Ladies and Gentlemen:

 

TRIUMPH GROUP, INC. , a Delaware corporation (together with any successors and assigns, the “ Company ”), hereby agrees with each of you as follows:

 

1.                                       PRIOR ISSUANCE OF NOTES, ETC.

 

The Company previously issued and sold (a) eighty million dollars ($80,000,000) in aggregate principal amount of its Series A Senior Notes due December 2, 2012 (as may be amended, restated or otherwise modified from time to time, collectively, the “ Series A Notes ”, such term to include any such notes issued in substitution therefor pursuant to Section 13 of the Note Purchase Agreement) and (b) seventy million dollars ($70,000,000) in aggregate principal amount of its Series B Senior Notes due December 2, 2012 (as may be amended, restated or otherwise modified from time to time, collectively, the “ Series B Notes ”, such term to include any such notes issued in substitution therefor pursuant to Section 13 of the Note Purchase Agreement) pursuant to those certain separate Note Purchase Agreements, each dated as of November 21, 2002, as amended by that certain Amendment No. 1 to Note Purchase Agreement, dated as of April 21, 2004 (as in effect immediately prior to giving effect to the amendments provided for herein, collectively, the “ Existing Note Purchase Agreement ” and, as amended pursuant to this Agreement and as may be further amended, restated or otherwise modified from time to time, collectively, the “ Note Purchase Agreement ”) between the Company and each of Current Noteholders (as herein after defined). The Series A Notes and the Series B Notes are collectively referred to herein as the “ Notes .”  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Note Purchase Agreement after giving effect to the Amendments contemplated by this Agreement.

 

The entire original aggregate principal amount of the Notes currently remains outstanding.  The register kept by the Company for the registration and transfer of the Notes indicates that each of the Persons named in Annex 1 hereto (collectively, the “ Current Noteholders ”) is currently a holder of the aggregate principal amount of Notes indicated in such Annex 1.

 

2.                                       REQUEST FOR CONSENT TO AMENDMENTS.

 

The Company intends to sell certain assets of Triumph Engineered Solutions, Inc., a Delaware corporation, pursuant to Section 10.7 of the Existing Note Purchase Agreement and wind

 

 

 down operations of certain other Subsidiaries and hereby requests that each of the Current Noteholders agree to the amendments (the “ Amendments ”) to the Existing Note Purchase Agreement provided for by this Agreement.

 

3.                                       WARRANTIES AND REPRESENTATIONS.

 

To induce the Current Noteholders to enter into this Agreement and to agree to the Amendments, the Company warrants and represents to the Current Noteholders as follows (it being agreed, however, that nothing in this Section 3 shall affect any of the warranties and representations previously made by the Company in or pursuant to the Existing Note Purchase Agreement, and that all of such other warranties and representations, as well as the warranties and representations in this Section 3, are true and correct in all material respects on and as of the date hereof):

 

3.1.                             No Material Adverse Change.

 

Since the date of the most recent audited financial statements provided to you pursuant to Section 7.1(b) of the Existing Note Purchase Agreement, there has been no change in the business operations, profits, financial condition, properties or business prospects of the Company or any Subsidiary except changes that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

 

3.2.                             Corporate Organization and Authority.

 

Each of the Company and its Subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and under the Financing Documents.

 

3.3.                             Legal and Authorized; Obligations are Enforceable.

 

(a)                                   Legal and No Conflict .  The execution and delivery by the Company and its Subsidiaries of this Agreement and the compliance by the Company and its Subsidiaries with all of the provisions of the Financing Documents to which it is a party are legal and do not violate, conflict with, result in any breach of any of the provisions of, require any consents under, constitute a default under, or result in the creation of any Lien (other than Permitted Liens) upon any property of the Company or any Subsidiary under the provisions of,

 

(i)                                      the charter documents or any other material agreement to which the Company or such Subsidiary is a party or by which it or any of its properties may be bound, or

 

(ii)                                   any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary.

 

(b)                                   Obligations of Company are Enforceable .  The execution and delivery of each of this Agreement has been duly authorized by all necessary action on the part of

 

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the Company, and this Agreement has been executed and delivered on behalf of the Company by one or more duly authorized officers of the Company, and each of the Financing Documents to which the Company or any Subsidiary is a party constitutes a legal, valid and binding obligation of the Company and such Subsidiary, enforceable against the Company or such Subsidiary in accordance with its respective terms, except that, in each case, the enforceability thereof may be

 

(i)                                      limited by applicable bankruptcy, reorganization, arrangement, insolvency, moratorium, or other similar laws affecting the enforceability of creditors’ rights generally, and

 

(ii)                                   subject to the availability of equitable remedies,

 

and except that certain rights to indemnity and contribution may be limited by applicable law.

 

3.4.                             Full Disclosure.

 

Neither the financial statements and other certificates previously provided to the Current Noteholders pursuant to the provisions of the Existing Note Purchase Agreement nor the statements made in this Agreement nor any other written statements furnished by or on behalf of the Company to the Current Noteholders in connection with the proposal and negotiation of the Amendments, taken as a whole, contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein and herein not misleading.  There is no fact relating to any event or circumstance that has occurred or arisen since the Closing that the Company has not disclosed to the Current Noteholders in writing that has had or, so far as the Company can now reasonably foresee, could reasonably be expected to have, a Material Adverse Effect.

 

3.5.                             Governmental Consent.

 

Neither the nature of the Company, or of any of its businesses or Properties, nor any relationship between the Company and any other Person, nor any circumstance in connection with the execution and delivery of this Agreement by the Company, or the performance by the Company of its obligations thereunder, is such as to require a consent, approval or authorization of, or filing, registration or qualification with, any Governmental Authority on the part of the Company in connection with the execution and delivery of this Agreement or the performance by the Company of its obligations under the Financing Documents to which it is a party.

 

3.6.                             Litigation; Observance of Agreements, Statutes and Orders.

 

(a)                                   Except as disclosed at the “Lenders Meeting” on October 14, 2004, there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company or any Subsidiary or any property of the Company or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

 

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(b)                                   Neither the Company nor any Subsidiary is in default under any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or is in violation of any applicable law, ordinance, rule or regulation (including, without limitation, Environmental Laws) of any Governmental Authority, which default or violation, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

 

3.7.                             Solvency.

 

The fair saleable value of the business and assets of each of the Company and each Subsidiary, exceeds, as of the Effective Date, the amount that will be required to pay the probable liabilities of such Person (including subordinated, contingent, unmatured and unliquidated liabilities), on existing debts as they may become absolute and matured.  No such Person, after the Effective Date, will be engaged in any business or transaction, or be about to engage in any business or transaction, for which such Person has unreasonably small capital, and no such Person has any intent to hinder, delay or defraud any entity to which such Person is, or will become indebted, or to incur debts that would be beyond such Person’s ability to pay as they mature.

 

3.8.                             Intent.

 

The Company is not entering into the transactions contemplated by this Agreement with any intent to hinder, delay or defraud either current creditors or future creditors of the Company.

 

3.9.                             No Defaults.

 

No event has occurred and no condition exists that, upon the execution and delivery of this Agreement would constitute a Default or an Event of Default.

 

3.10.                      Senior Credit Agreement Amendment Fee.

 

Other than the .05% (5 basis points) fee payable on or prior to the Effective Date to the Banks, the Company is not paying any other amendment fee or other fee to the Banks, or the Administrative Agent for the benefit of the Banks or the Administrative Agent, in connection with the execution and delivery of the Senior Credit Agreement Amendment.

 

4.                                       AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT.

 

Subject to the satisfaction of the conditions set forth in Section 5 hereof, the Existing Note Purchase Agreement is hereby amended in the manner specified in Exhibit A to this Agreement.

 

5.                                       CONDITIONS PRECEDENT.

 

Each of the Amendments to the Existing Note Purchase Agreement provided for in Section 4 hereof shall become effective on the date (the “ Effective Date ”) upon which all of the following conditions precedent have been satisfied:

 

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5.1.                             Execution and Delivery of this Agreement.

 

The Company and the Current Noteholders shall have executed and delivered a counterpart of this Agreement.

 

5.2.                             Fees and Expenses.

 

(a)                                   Amendment Fee .  The Company shall have paid on the Effective Date to each Current Noteholder, an amendment fee in an amount equal to the product of (i) the aggregate principal amount of the Notes held by such Current Noteholder outstanding on the Effective Date multiplied by (ii) 0.125% (12.5 basis points). The amendment fee shall have been paid by wire transfer to the account or accounts designated by each such Current Noteholder pursuant to Section 14 of the Existing Note Purchase Agreement.

 

(b)                                   Amendment Costs and Expenses .  The Company shall have paid on the Effective Date all costs and reasonable expenses of the Current Noteholders relating to this Agreement due on such date in accordance with Section 6.5 hereof (including, without limitation, any reasonable attorney’s fees and disbursements).

 

5.3.                             Representations and Warranties.

 

The representations and warranties set forth in Section 3 shall be true and correct as of such date.

 

5.4.                             Senior Credit Agreement Amendment.

 

The Current Noteholders (or their special counsel) shall have received a true and correct copy of the executed and effective Fifth Amendment to Credit Agreement (the “ Fifth Amendment ”) dated as of November 3, 2004 between the Company and PNC Bank, National Association, in its capacity as Administrative Agent and lender, and each of the Banks party thereto, substantially in the form of Exhibit 5.4 hereto and each document delivered to the Administrative Agent and Banks pursuant thereto.

 

5.5.                             Proceedings Satisfactory.

 

The Current Noteholders and their special counsel shall have received copies of such documents and papers (whether or not specifically referred to above in this Section 5) as they may have reasonably requested prior to such date and such documents shall be in form and substance satisfactory to them.

 

6.                                       MISCELLANEOUS.

 

6.1.                             Effect of Amendments.

 

This Agreement shall be construed in connection with and as a part of the Existing Note Purchase Agreement and, except as expressly amended by this Agreement, all terms, conditions and covenants contained in the Existing Note Purchase Agreement and the other Financing Documents are hereby ratified and shall be and remain in full force and effect.  Any and all

 

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notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Agreement may refer to the Note Purchase Agreement without making specific reference to this Agreement, but nevertheless all such references shall include this Agreement unless the context otherwise requires.

 

6.2.                             Successors and Assigns.

 

This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto (including, without limitation, any transferee).  The provisions hereof are intended to be for the benefit of each of the Current Noteholders and shall be enforceable by any successor or assign of such Current Noteholder whether or not an express assignment of rights hereunder shall have been made by such Current Noteholder or its successors or assigns.

 

6.3.                             Governing Law.

 

THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

 

6.4.                             Waivers and Amendments.

 

Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, or by any action or inaction, but only by an instrument in writing signed by each of the parties signatory hereto.

 

6.5.                             Costs and Expenses.

 

Whether or not any of the Amendments becomes effective, the Company will promptly (and in any event within ten (10) days of receiving any statement or invoice therefor) pay all fees, expenses and costs relating to this Agreement, including, but not limited to, (a) the reasonable cost of reproducing this Agreement and the other documents delivered in connection herewith and (b) the reasonable fees and disbursements of the Current Noteholders’ special counsel, Bingham McCutchen LLP, incurred in connection with the preparation, negotiation and delivery of this Agreement, including, but not limited to, the statement for reasonable fees and disbursements of the Current Noteholders’ special counsel presented to the Company on the Effective Date. The Company will also promptly pay, upon receipt of any statement thereof, each additional statement for reasonable fees and disbursements of the Current Noteholders’ special counsel rendered after the Effective Date in connection with this Agreeme