FROM TIME TO TIME PARTY HERETO,
as Agent,
as Collateral Agent and Depositary
Page | ||||
ARTICLE I DEFINITIONS | 1 | |||
SECTION 1.01 Defined Terms | 1 | |||
SECTION 1.02 Computation of Time Periods and Other Definitional Provisions | 34 | |||
ARTICLE II THE CREDIT FACILITY | 34 | |||
SECTION 2.01 Commitment to Lend | 34 | |||
SECTION 2.02 Procedures for Borrowing | 35 | |||
SECTION 2.03 Notice to Lenders; Funding of Loans | 36 | |||
SECTION 2.04 Evidence of Loans | 38 | |||
SECTION 2.05 Interest | 39 | |||
SECTION 2.06 Repayment and Maturity of Loans | 40 | |||
SECTION 2.07 Prepayments | 40 | |||
SECTION 2.08 Adjustment of Commitments | 48 | |||
SECTION 2.09 Fees | 51 | |||
SECTION 2.10 Pro-rata Treatment | 51 | |||
SECTION 2.11 Sharing of Payments | 52 | |||
SECTION 2.12 Payments; Computations; Proceeds of Collateral, Etc | 52 | |||
SECTION 2.13 Adjustments to Advance Rate and Borrowing Base | 53 | |||
SECTION 2.14 Interest Rate Risk Management | 53 | |||
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY | 54 | |||
SECTION 3.01 Taxes | 54 | |||
SECTION 3.02 Illegality | 56 | |||
SECTION 3.03 Increased Costs and Reduced Return | 56 | |||
SECTION 3.04 Funding Losses | 58 | |||
ARTICLE IV CONDITIONS | 58 | |||
SECTION 4.01 Conditions to Facility Closing | 58 | |||
SECTION 4.02 Conditions to Amendment Closing Date | 63 | |||
SECTION 4.03 Conditions to Each Funding Date | 66 | |||
ARTICLE V REPRESENTATIONS AND WARRANTIES | 68 | |||
SECTION 5.01 Organization and Good Standing | 68 | |||
SECTION 5.02 Power; Authorization; Enforceable Obligations | 69 | |||
SECTION 5.03 No Conflicts | 69 | |||
SECTION 5.04 No Default | 69 |
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SECTION 5.05 Financial Condition | 69 | |||
SECTION 5.06 No Material Change | 71 | |||
SECTION 5.07 Title to Properties | 71 | |||
SECTION 5.08 Litigation | 71 | |||
SECTION 5.09 Taxes | 71 | |||
SECTION 5.10 Compliance with Law | 71 | |||
SECTION 5.11 ERISA | 71 | |||
SECTION 5.12 Subsidiaries | 72 | |||
SECTION 5.13 Governmental Regulations, Etc | 72 | |||
SECTION 5.14 Purpose of Loans | 73 | |||
SECTION 5.15 Labor Matters | 73 | |||
SECTION 5.16 Environmental Matters | 73 | |||
SECTION 5.17 Intellectual Property | 73 | |||
SECTION 5.18 Solvency | 74 | |||
SECTION 5.19 Disclosure | 74 | |||
SECTION 5.20 Security Documents | 74 | |||
SECTION 5.21 Ownership | 74 | |||
SECTION 5.22 Lease Documents | 74 | |||
SECTION 5.23 Sole Business of the Borrower | 75 | |||
SECTION 5.24 Separate Corporate Structure; No Employees | 75 | |||
SECTION 5.25 Leases | 76 | |||
SECTION 5.26 Railcars | 76 | |||
ARTICLE VI AFFIRMATIVE COVENANTS | 77 | |||
SECTION 6.01 Information | 77 | |||
SECTION 6.02 Preservation of Existence and Franchises; Authorizations, Approvals and Recordations | 79 | |||
SECTION 6.03 Books and Records | 79 | |||
SECTION 6.04 ERISA | 79 | |||
SECTION 6.05 Payment of Taxes and Other Debt | 79 | |||
SECTION 6.06 Insurance; Certain Proceeds | 80 | |||
SECTION 6.07 Operation, Use and Maintenance | 81 | |||
SECTION 6.08 Replacement of Parts; Modifications and Improvements | 83 |
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SECTION 6.09 Use of Proceeds | 83 | |||
SECTION 6.10 Audits/Inspections/Appraisals | 83 | |||
SECTION 6.11 Stamp Tax | 84 | |||
SECTION 6.12 Follow-On Leases | 85 | |||
SECTION 6.13 Accounts | 85 | |||
SECTION 6.14 Manager | 86 | |||
SECTION 6.15 Action after an Event of Default | 86 | |||
SECTION 6.16 [RESERVED] | 86 | |||
SECTION 6.17 [RESERVED] | 87 | |||
SECTION 6.18 [RESERVED] | 87 | |||
SECTION 6.19 Required Disclosures | 87 | |||
ARTICLE VII NEGATIVE COVENANTS | 87 | |||
SECTION 7.01 Limitation on Debt | 87 | |||
SECTION 7.02 Restriction on Liens | 87 | |||
SECTION 7.03 Nature of Business | 87 | |||
SECTION 7.04 Consolidation, Merger and Dissolution | 87 | |||
SECTION 7.05 Asset Dispositions | 87 | |||
SECTION 7.06 Investments | 88 | |||
SECTION 7.07 Restricted Payments, etc | 88 | |||
SECTION 7.08 Transactions with Affiliates | 88 | |||
SECTION 7.09 Fiscal Year; Organization and Other Documents | 89 | |||
SECTION 7.10 Additional Negative Pledges | 89 | |||
SECTION 7.11 Impairment of Security Interests | 89 | |||
SECTION 7.12 Debt Service Coverage Ratio | 89 | |||
SECTION 7.13 No Amendments to the Lease Documents | 89 | |||
SECTION 7.14 Lease Default | 90 | |||
SECTION 7.15 Consolidation with Any Other Person | 90 | |||
SECTION 7.16 Limitations on Employees, Subsidiaries | 90 | |||
SECTION 7.17 Independence of Covenants | 90 | |||
ARTICLE VIII OTHER COVENANTS | 91 | |||
SECTION 8.01 Quiet Enjoyment | 91 | |||
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ARTICLE IX DEFAULTS | 91 | |||
SECTION 9.01 Events of Default | 91 | |||
SECTION 9.02 Acceleration; Remedies | 93 | |||
ARTICLE X AGENCY PROVISIONS | 95 | |||
SECTION 10.01 Appointment; Authorization | 95 | |||
SECTION 10.02 Delegation of Duties | 96 | |||
SECTION 10.03 Exculpatory Provisions | 96 | |||
SECTION 10.04 Reliance on Communications | 96 | |||
SECTION 10.05 Notice of Default | 97 | |||
SECTION 10.06 Credit Decision; Disclosure of Information by the Agent or Collateral Agent | 97 | |||
SECTION 10.07 Indemnification | 98 | |||
SECTION 10.08 Agent and Collateral Agent in Their Individual Capacities | 98 | |||
SECTION 10.09 Successor Agents | 99 | |||
SECTION 10.10 Request for Documents | 99 | |||
ARTICLE XI MISCELLANEOUS | 99 | |||
SECTION 11.01 Notices and Other Communications | 99 | |||
SECTION 11.02 No Waiver; Cumulative Remedies | 100 | |||
SECTION 11.03 Amendments, Waivers and Consents | 101 | |||
SECTION 11.04 Expenses | 102 | |||
SECTION 11.05 Indemnification | 103 | |||
SECTION 11.06 Successors and Assigns | 106 | |||
SECTION 11.07 Confidentiality | 109 | |||
SECTION 11.08 Set-off | 110 | |||
SECTION 11.09 Interest Rate Limitation | 111 | |||
SECTION 11.10 Counterparts | 111 | |||
SECTION 11.11 Integration | 112 | |||
SECTION 11.12 Survival of Representations and Warranties | 112 | |||
SECTION 11.13 Severability | 112 | |||
SECTION 11.14 Headings | 112 | |||
SECTION 11.15 Marshalling; Payments Set Aside | 112 | |||
SECTION 11.16 Performance by the Agent | 113 | |||
SECTION 11.17 Third Party Beneficiaries | 113 |
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SECTION 11.18 No Proceedings | 113 | |||
SECTION 11.19 Governing Law; Submission to Jurisdiction | 114 | |||
SECTION 11.20 Waiver of Jury Trial | 114 | |||
SECTION 11.21 Binding Effect | 114 | |||
SECTION 11.22 The Patriot Act | 114 |
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(cont.)
Schedule A | — | Industry Concentration Chart | ||
Schedule 1.01 | — | Lenders and Commitments | ||
Schedule 5.02 | — | Required Consents, Authorizations, Notices and Filings | ||
Schedule 6.06 | — | Insurance | ||
Schedule 11.01 | — | Notice Addresses; Agent’s Office |
Exhibit A-1 | — | Form of Request | ||
Exhibit A-2 | — | Form of Notice of Borrowing | ||
Exhibit A-3 | — | Form of Additional Collateral Certificate | ||
Exhibit A-4 | — | Form of Financing Notice | ||
Exhibit A-5 | — | Form of Monthly Report | ||
Exhibit A-6 | — | Form of Borrowing Base Certificate | ||
Exhibit B | — | Form of Note | ||
Exhibit C | — | Form of Assignment and Acceptance | ||
Exhibit D-1 | — | Form of Opinion of Counsel for the Borrower, the Manager and Trinity | ||
Exhibit D-2 | — | Form of Opinion of In-House Counsel for the Borrower, the Manager and Trinity | ||
Exhibit D-3 | — | Form of Opinion of Delaware Trust Counsel for the Borrower | ||
Exhibit D-4 | — | Form of True Sale Opinion | ||
Exhibit D-5 | — | Form of Nonconsolidation Opinion | ||
Exhibit D-6 | — | Form of Opinion of Special STB Counsel for the Borrower | ||
Exhibit D-7 | — | Form of Opinion of Special Canadian Counsel for the Agent | ||
Exhibit D-8 | — | Form of Opinion of Counsel for the Depositary | ||
Exhibit D-9 | — | Form of Opinion of Counsel for the Marks Company | ||
Exhibit E-1 | — | Form of Security Agreement | ||
Exhibit E-2 | — | Form of Perfection Certificate | ||
Exhibit E-3 | — | [RESERVED] | ||
Exhibit E-4 | — | Form of Notice of Lease Assignment | ||
Exhibit F | — | Form of Depository Agreement | ||
Exhibit G | — | Form of Performance Guaranty | ||
Exhibit H | — | Form of Management Agreement | ||
Exhibit I | — | Form of Insurance Management Agreement | ||
Exhibit J-1 | — | Form of Full Service Railcar Lease Agreement | ||
Exhibit J-2 | — | Form of Net Railcar Lease Agreement | ||
Exhibit K | — | Form of Asset Contribution and Purchase Agreement | ||
Exhibit L | — | Form of Administrative Services Agreement | ||
Exhibit M | — | Form of Officer’s Certificate |
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TRINITY INDUSTRIES LEASING COMPANY | ||||
By: | /s/ Thomas C. Jardine | |||
Name: | Thomas C. Jardine | |||
Title: | Vice President | |||
TRINITY RAIL LEASING TRUST II | ||||
By: | /s/ Eric Marchetto | |||
Name: | Eric Marchetto | |||
Title: | Vice President | |||
Warehouse Loan Agreement
CREDIT SUISSE, NEW YORK BRANCH (formerly known as Credit Suisse First Boston, New York Branch), as Agent and as a Committed Lender | ||||
By: | /s/ Anthony Giordano | |||
Name: | Anthony Giordano | |||
Title: | Director | |||
By: | /s/ Alex Smith | |||
Name: | Alex Smith | |||
Title: | Vice President | |||
ALPINE SECURITIZATION CORP, as a Conduit Lender |
By Credit Suisse, New York Branch, as attorney-in-fact |
By: | /s/ Mark Golombeck | |||
Name: | Mark Golombeck | |||
Title: | Director | |||
By: | /s/ Joseph Soave | |||
Name: | Joseph Soave | |||
Title: | Director | |||
Warehouse Loan Agreement
DRESDNER BANK AG, NEW YORK BRANCH, as a Committed Lender | ||||
By: | /s/ David O. Taylor | |||
Name: | David O. Taylor | |||
Title: | Vice President | |||
By: | /s/ Michael W. Ravelo | |||
Name: | Michael W. Ravelo | |||
Title: | Vice President | |||
BEETHOVEN FUNDING CORPORATION, as a Conduit Lender | ||||
By: | /s/ Damian A. Perez | |||
Name: | Damian A. Perez | |||
Title: | Vice President | |||
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COÖPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK BRANCH, as a Committed Lender | ||||
By: | /s/ Sarah Ye Tian | |||
Name: | Sarah Ye Tian | |||
Title: | Vice President | |||
By: | /s/ Christopher Lew | |||
Name: | Christopher Lew | |||
Title: | Vice President | |||
NIEUW AMSTERDAM RECEIVABLES CORPORATION, as a Conduit Lender | ||||
By: | /s/ David V. DeAngelis | |||
Name: | David V. DeAngelis | |||
Title: | Vice President | |||
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GRESHAM RECEIVABLES (No. 3) LIMITED, as a Committed Lender | ||||
By: | /s/ S.M. Hollywood | |||
Name: | S.M. Hollywood | |||
Title: | Director | |||
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WILMINGTON TRUST COMPANY, as Collateral Agent and Depositary | ||||
By: | /s/ Jose L. Paredes | |||
Name: | Jose L. Paredes | |||
Title: | Assistant Vice President | |||
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