EXHIBIT 10.17.5
AMENDMENT NO. 5 TO
WAREHOUSE LOAN AGREEMENT AND
RELATED DOCUMENTS
AMENDMENT NO. 5 TO WAREHOUSE LOAN AGREEMENT AND RELATED DOCUMENTS, dated
as of November 12, 2003 (this "Amendment"), is entered into by and among TRINITY
INDUSTRIES LEASING COMPANY, a Delaware corporation (the "Manager"), TRINITY RAIL
LEASING TRUST II, a Delaware statutory trust (the "Borrower"), the LENDERS party
hereto, and CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as Agent for the
Lenders (in such capacity, the "Agent"). Capitalized terms used but not defined
herein have the meaning set forth in the Agreement referred to below.
RECITALS:
WHEREAS, (i) the Manager, the Borrower, the Lenders and the Agent are
parties to that certain Warehouse Loan Agreement dated as of June 27, 2002 (as
heretofore amended, the "Agreement"), (ii) the Manager and Borrower are parties
to that certain Operation, Maintenance, Servicing and Remarketing Agreement,
dated as of June 27, 2002 (as heretofore amended, the "Management Agreement"),
(iii) the Agent and the Borrower are parties to that certain Security Agreement,
dated as of June 27, 2002 (the Security Agreement"), (iv) the Agent, the
Manager, the Borrower and Wilmington Trust Company ("WTC"), as Depository, are
parties to that certain Depository Agreement, dated as of July 15, 2002 (as
heretofore amended, the "Depository Agreement") and (v) the Agent, the Borrower
and the Depository are parties to that certain Deposit Account Control
Agreement, dated as of July 15, 2002 (the "Control Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement, the Management
Agreement, the Security Agreement, the Depository Agreement and the Control
Agreement as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
I. AMENDMENTS TO WAREHOUSE LOAN AGREEMENT:
1. The following definitions are hereby added to Section 1.01 of the
Agreement in the appropriate alphabetical sequence:
"`Customer Collections Account Administration Agreement' means the
Customer Collections Account Administration Agreement, dated as of
November 12, 2003, among the Manager, the Borrower, the Agent, Trinity
Rail Leasing III, L.P., a Texas limited partnership, the TRL-III
Transaction Investors identified on the signature pages thereto, WTC, as
the Transaction Debt Representative (as defined therein), as the TRL-III
Indenture Trustee (as defined therein), as the TRL-III Collateral Agent
(as
defined therein), as a beneficiary thereunder and as the Account
Collateral Agent (as defined therein)."
"'Customer Payments Accounts' means the Customer Payments Account
referred to and defined in the Customer Collections Account Administration
Agreement."
2. The definition of "Collateral Documents" contained in Section 1.01 of the
Agreement is hereby amended by inserting the words "Customer Collections Account
Administration Agreement," immediately after the words "the Depositary
Agreement," contained therein.
3. Section 6.13(a) of the Agreement is hereby amended by replacing the third
and fourth sentences contained therein with the following sentence:
The Borrower also shall notify and instruct each Lessee that all payments
due or to become due under each Portfolio Lease (except for Excepted
Payments (which shall be payable to the Persons for whose benefit any such
payment is made)) or otherwise in respect of amounts and other receivables
of the Borrower are to be made directly to the Customer Payments Account.
II. AMENDMENT TO OPERATION, MAINTENANCE, SERVICING
AND REMARKETING AGREEMENT
1. Section 6.01 of the Management Agreement is hereby amended by replacing
the phrase "deposited directly in the Collection Account maintained under the
Depository Agreement" with the phrase "deposited directly in the Customer
Payments Account".
2. Section 6.02(a) of the Management Agreement is hereby amended by replacing
the words "Collection Account" contained in the third sentence thereof with the
words "Customer Payments Account".
III. AMENDMENT TO SECURITY AGREEMENT
1. Section 3.06 of the Security Agreement is hereby amended by inserting ",
the Customer Payments Account" immediately after the words "Collateral Accounts"
located therein.
2. Section 4.10 of the Security Agreement is hereby amended by inserting ",
the Customer Payments Account" immediately after the words "Collateral Accounts"
located therein.
IV. AMENDMENT TO DEPOSITORY AGREEMENT
1. Clause (i) of Section 2.01 of the Depository Agreement is hereby amended
by replacing the words "Collection Account" contained therein with the words
"Customer Payments Account".
V. AMENDMENT TO CONTROL AGREEMENT
1. The Control Agreement is hereby amended by deleting the last row of the
grid contained at the end of the first paragraph thereof (it being understood
that the "Lock Box Account" is hereby no longer considered to be an "Account"
under the Control Agreement).
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VI. COVENANTS
1. The Manager hereby agrees to allocate all Cash Flow from the Customer
Payments Account to the Collections Account on a daily basis, and shall provide
written notice thereof (which notice may be made by facsimile or electronic
mail) to the Agent [on a daily basis], in each case in accordance with the
Customer Collections Account Administration Agreement.
2. The Manager and the Borrower hereby agree that if, within 45 days of the
effectiveness of this Amendment, the Required Lenders have not delivered Notices
of Consent in form substantially similar to Exhibit A hereto to the Agent then
the Borrower will establish a new lock box account for the deposit of Cash Flow
and will instruct each Lessee and each other party obligated to the Borrower to
make payments of Cash Flow to such lock box account. In addition, the definition
of "Customer Payments Account" will be revised to mean the new lock box account
and the Loan Documents will otherwise be amended to reflect the establishment of
the new account and the requirement that Cash Flow is to be deposited therein.
VII. MISCELLANEOUS:
1. Effectiveness. This Amendment becomes effective on the date on which the
Agent has received executed signature pages of the Manager, the Borrower, the
Depository and the Required Lenders.
2. Representations and Warranties. The Manager and the Borrower each
represent and warrant that its respective representations and warranties
contained in the Agreement and the other Loan Documents, as applicable, are true
and correct on and as of the date of this Amendment as though made on and as of
such date, except to the extent that such representations and warranties
expressly relate to an earlier date.
3. Effect of Amendment. All provisions of the Agreement, the Management
Agreement, the Security Agreement, the Depository Agreement and the Control
Agreement as expressly amended and modified by this Amendment, shall remain in
full force and effect. After this Amendment becomes effective, all references in
the Agreement, the Management Agreement, the Security Agreement, the Depository
Agreement or the Control Agreement (or in any other Transaction Document) to the
Agreement, the Management Agreement, the Security Agreement, the Depository
Agreement or the Control Agreement, as applicable, shall be deemed to be
references to the Agreement, the Management Agreement, the Security Agreement,
the Depository Agreement or the Control Agreement as amended hereby.
4. Counterparts. This Amendment may be executed in any number of counterparts
and by different parties on separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile shall be
effective as delivery of a manually executed counterpart of this Amendment.
5. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
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6. Section Headings. The various headings of this Amendment are included for
convenience only and shall not affect the meaning or interpretation of this
Amendment, the Agreement, the Management Agreement, the Security Agreement, the
Depository Agreement, the Control Agreement or any provision hereof or thereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amendment on the date
first written above.
TRINITY INDUSTRIES LEASING
COMPANY
By: _________________________________
Name:
Title:
TRINITY RAIL LEASING TRUST II
By: _________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH
as Agent and as a Committed Lender
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
GRAMERCY CAPITAL CORPORATION, as a
Conduit Lender
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
GREENWICH FUNDING CORPORATION, as a
Conduit Lender
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
ALPINE SECURITIZATION CORP, as a
Conduit Lender
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
DRESDNER BANK AG, NEW YORK
BRANCH, as a Committed Lender
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
BEETHOVEN FUNDING CORPORATION, as
a Conduit Lender
By: _________________________________
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as a Committed Lender
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
NIEUW AMSTERDAM RECEIVABLES
CORPORATION, as a Conduit Lender
By: _________________________________
Name:
Title:
Exhibit A
Notice of Consent
Credit Suisse First Boston, New York Branch,
as Agent
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
Reference is made to (i) the Warehouse Loan Agreement dated as of
June 27, 2002 among Trinity Industries Leasing Company ("TILC"), Trinity Rail
Leasing Trust II ("Trinity Rail"), the lending institutions party thereto from
time to time (the "Lenders") and Credit Suisse First Boston, New York Branch, as
Agent (the "Agent") (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Loan Agreement") and (ii) Amendment
No. 5 to the Loan Agreement, dated as of November 12, 2003 ("Amendment No. 5"),
among TILC, Trinity Rail, the Lenders and the Agent. Terms defined in the Loan
Agreement and not otherwise defined herein have, as used herein, the respective
meanings provided for therein.
This letter shall act as notice from [Name of Lender] in connection
with Section 2 of Article VI of Amendment No. 5 that it is not requesting that a
new lock box account be established for the deposit of Cash Flow and that [Name
of Lender] confirms its consent to the establishment of the Customer Payments
Account and to the deposit of all Cash Flow therein in accordance with the Loan
Documents.
[Name of Lender]
By: ________________________
Name:
Title: